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From Tenn. AG Op. 20-14, released a week ago but just posted to Westlaw in the last couple of days; seems quite right to me:
Is a governmental mandate that requires the general population to wear face coverings in public during a state of emergency caused by COVID-19 constitutionally permissible?
As a general proposition, a governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 would be constitutionally defensible. The constitutionality of any particular governmental mandate, though, would depend on its specific terms and the underlying authority of the governmental entity issuing it….
For more than a century, the United States Supreme Court has recognized that "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members." Jacobson v. Massachusetts (1905). Moreover, during an epidemic, the traditional tiers of judicial scrutiny do not apply. In these narrow circumstances, courts are to overturn only those orders that (1) have no "real or substantial relation" to protecting public health or (2) are "beyond all question, a plain, palpable invasion of rights secured by the fundamental law."
A governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 satisfies this two-prong Jacobson test…. Requiring a person to wear a face covering during a comparable public health crisis is no more invasive—indeed is arguably less invasive—than requiring a person to be vaccinated [the requirement upheld in Jacobson].
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