Thread: Governor Kemp's suit to preclude Atlanta & other cities from requiring masks due to the COVID-19 crisis seems to be based on shaky legal grounds. Indeed, the duit might draw a counterclaim challenging the validity of some aspects of the Governor's executive orders. #gapol

The Governor's Emergency Powers and authority are specifically set by statute (OCGA 38-3-51). Assuming the COVID-19 crisis falls within the emergency declaration, the Governor cannot act to do more through this statute than the specific enumerations of authority listed there.

The Emergency Power statute says nothing that appears to give the Governor the authority to limit the right of local governments to enact mask mandates. And, in fact the order seems contrary to the language and purpose of the statute.

While the statute allows the Governor to “perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the civilian population.” This likely would allow the Governor to require masks.

But not requiring masks certainly does not “promote and secure the safety of the civilian population" - rather, it is contrary to it. Indeed, the statute would even allow the Governor to quarantine persons or require vaccinations.

Thus, the Governor's power is to preclude the spread of COVID-19, but not to preclude localities from trying to contain it. It is hard to see how the enumerated authority in the statute and the purpose of the statute comport with the Governor's suit.

Moreover, while localities are creatures of the State, and their powers can be altered by the General Assembly, the Governor does not have the authority to unilaterally do this and there is nothing in the Emergency Powers statute that says he can.

The suit says that the Governor's orders trump the local mask mandates to the contrary citing OCGA 38-3-28. Assuming this statute would otherwise apply, it does not apply when the Governor's order is without authority as set forth above.

The result of the suit should be interesting and is obviously important.