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- Gov. Newsom has broad authority under the California Emergency Services Act to issue health mandates during a pandemic.
Two constitutional law experts said Newsom does, indeed, have the power to make face coverings mandatory under that act.
They said unless face coverings are shown to be ineffective, Newsom’s requirement should hold up against legal challenges.
Top public health officials and recent studies say wearing a face covering is an effective measure for reducing the spread of COVID-19 when people gather.
Following Gov. Gavin Newsom’s announcement last week that all Californians must wear face coverings in certain public settings, some local government officials and viral social media posts alleged the governor has no legal authority to make masks mandatory.
One Facebook post viewed more than 80,000 times on the day of Newsom’s order claimed the governor hadn’t really made such a requirement and has no power to do so.
‼️GREAT NEWS!‼️ Contrary to the LA Times story, Newsom did NOT issue any mandatory mask orders in CA! (He has no legal authority to do so.) This was new GUIDANCE (not a public health order) from the CA State Dept of Health, and it is a RELAXATION of the previous orders!!!
It was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about PolitiFact California’s partnership with Facebook).
The claim was made by a woman in Orange County who heads a group that also claims healthy people should not wear masks. PolitiFact in May found there’s no evidence that wearing standard masks, such as surgical masks or ones made of fabric, is harmful to the general public.
In Northern California, Nevada City Mayor Reinette Senum claimed on Facebook "Our Governor does NOT have that unilateral power to make such orders." She linked to a YouTube video of the Orange County woman.
While the act of wearing a mask, or choosing not to, has become politicized nationwide, leading public health officials and recent studies say wearing a face covering is an effective measure for reducing the spread of COVID-19 when people gather.
Newsom’s requirement is lauded by some and seen as an intrusion by others. For this fact check, we wanted to know whether it rests on solid legal footing.
What Does Newsom’s Face Covering Requirement Say?
The governor announced new rules through a California Department of Public Health press release on June 18. "Simply put, we are seeing too many people with faces uncovered – putting at risk the real progress we have made in fighting the disease," Newsom said in the release.
There’s been some confusion about whether the announcement makes wearing a mask mandatory because the new CDPH requirements are technically termed "guidance."
But as the Sacramento Bee explained, a previous executive order issued by Newsom that required Californians to follow public health guidelines grants the state the ability to enforce CDPH rules.
The governor's office also made the announcement on social media:
Here’s what’s mandatory under the new rules:
People in California must wear face coverings when they are in the "high-risk situations," including:
Inside of, or in line to enter, any indoor public space
Visiting a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank
Waiting for or riding on public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle
Some law enforcement agencies across the state have said they will not enforce the mandate, but will encourage residents to voluntarily comply with it.
Is The Requirement Legal?
We asked both the Newsom administration and two constitutional law experts about this issue.
A spokesperson for the administration cited the California Emergency Services Act as giving the governor the power to make masks mandatory. Through that law, "the State Legislature has given the Governor broad authority to respond to state emergencies like the COVID-19 pandemic," Kate Folmar, a spokesperson for the state’s Health and Human Services Agency, said in an email.
Leslie Jacobs, who teaches constitutional law at McGeorge School of Law in Sacramento, agreed that the act along with the state’s broad public health authority gives Newsom extensive power to address the pandemic, including requiring face coverings. It’s the same law he used to justify his statewide stay-at-home order in March.
"That’s the authority under which the governor declared an emergency on March 4," Jacobs said. "That transfers all the authority of the state to the governor, to the extent necessary, to address the COVID emergency."
Jessica Levinson, who teaches at Loyola Law School, also said Newsom has the legal authority to require face coverings.
"Short answer – He does. Medium answer – He sure does. Longer answer – He sure as hell does," she wrote in an email.
Levinson added in a phone interview that the state has "broad authority when it comes to health and welfare measures."
Both law professors said they believe Newsom’s order would stand up to a legal challenge, unless new and credible studies show face coverings are not effective.
"Based on what we know now, I believe this would stand up," Levinson added.
The professors said Newsom’s position would be strengthened should the Legislature pass a bill requiring face-coverings. But, they said, because Newsom’s requirement is so closely tied to an immediate public health issue, that action is probably unnecessary.
Jacobs added that the governor’s powers during the pandemic are far-reaching. Under his authority, he could go even further to mandate things like temperature checks at sporting events or require face shields in some settings.
Should the mask order or any future measures be challenged in court, she said Newsom would have to show that the state truly needs to require them and that they can only be done in the way prescribed by the state.
Some local government leaders and widely-shared facebook posts claim Gov. Gavin Newsom doesn’t have the legal authority to make face coverings mandatory in California.
To justify the move, the Newsom administration pointed to the California Emergency Services Act, the same authority it used to order a statewide stay-at-home requirement in March due to the COVID-19 crisis.
Two constitutional law experts said Newsom, indeed, has broad powers under that law and under the state’s public health authority to make masks mandatory.
Unless face coverings are shown to be ineffective, they said Newsom’s requirement should also hold up against legal challenges.
We rate the claim the governor doesn’t have the power to make masks mandatory as False.
FALSE – The statement is not accurate.
Facebook posts, June 2020.
Kate Folmar, spokesperson, California Health and Human Services Agency, email statement, June 22, 2020
California Department of Public Health, California Public Health Officials Release Guidance Requiring Californians to Wear Face Coverings in Most Settings Outside the Home, June 18, 2020.
Leslie Jacobs, law professor, McGeorge School of Law, video interview June 23, 2020.
Jessica Levinson, law professor, Loyola Law School, email and phone interviews, June 23, 2020.
Sacramento Bee, Northern California mayor lashes out at Newsom’s mask order: ‘There is no law’, June 20, 2020.
NPR, Yes, Wearing Masks Helps. Here's Why, June 21, 2020.
PolitiFact, There’s no evidence that wearing standard masks is harmful to your health, May 19, 2020
The New York Times, Local and State Officials Unlock Sweeping Powers to Fight Coronavirus, March 14, 2020
Gov. Gavin Newsom, executive order, March 12, 2020
California Emergency Services Act, accessed June 2020
Palo Alto Daily Post, 1970 law gives Newsom sweeping powers in a state of emergency; local official helped write the law, May 21, 2020
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