This week Andre Desautels, of North Troy, is in court defending himself in a lawsuit brought by Vermont Attorney General T.J. Donovan. Desautels is essentially on trial for refusing to wear masks in the former UPS Store on Main Street.
Governor Phil Scott issued a mask mandate last summer under emergency power he claimed at the start of the pandemic. For his recalcitrance, Desautels lost his UPS franchise and his lease. He was forced to temporarily close his store and he faces massive ($1,000/day) fines.
Desautels is represented by attorney Deb Bucknam who also represented a Rutland gym owner last spring who came under attack by Donovan for operating after the Governor ordered all non-essential businesses to close.
At legal issue in this week’s hearings is a preliminary injunction issued by Judge Mary Miles Teachout. The state is trying to prove that Desautels will cause irreparable harm if allowed to operate maskless. As a matter of science and epidemiology, we think that’s a pretty heavy lift for the state. Given everything we’ve seen in the past year, however, we predict the court will err on the side of caution and Desautels will get steamrolled.
Whether or not you think that’s a miscarriage of justice, we think the case touches on larger issues.
First is the issue of the mask itself, which is actually quite settled for us.
We never fully understood why masks became a hot-button political issue. As of this week, 35 states have mask mandates. In February, the Biden administration ordered masks on federal property or public transportation.
Proponents of mandatory mask rules say it’s the easiest, most efficient and cost-effective way to control the spread of a virus that is wildly contagious and deadly in very small subsets of the population. They observe that too many people ignore the unambiguous recommendations of health officials to wear a mask in public.
Opponents say masks are uncomfortable; it’s none of the government’s damn business; and mandates infringe on their personal freedom. This argument insists that anyone uncomfortable with a store owner who refused to wear a mask could simply choose to shop elsewhere.
We haven’t found any of those arguments compelling. First, my right ends where yours begins. Try as we might, we can’t find a Constitutional guarantee of free association for American sputum, and in a pandemic, one weak link can cause an outbreak. If a citizen wants to be maskless at home, fine. When that same citizen crosses the street and opens a store, they become subject to all the laws and rules that govern public accommodations.
For better or worse, the Vermont government has enjoyed wide latitude, and public support, to take emergency actions during this public health crisis. If you believe in the government’s power to declare and manage public health emergencies, as most Vermonters seem to, then a mask mandate falls solidly under that purview.
This brings us to the second issue.
As it happens, we’re more comfortable wearing a mask than we are with the governor’s claim to these emergency powers. Though we wear a mask, we still struggle to believe not wearing one is now a crime in Vermont.
Before you get all up in our face about this, we ask you to remember a few things that we’ve mentioned before.
We want you to remember that Vermont forcibly closed its economy and suspended our collective rights in the name of “flattening the curve.” There’s absolutely zero question that we did that and have been moving the goal posts ever since.
We want you to remember that 37 state legislatures are currently debating bills, resolutions and/or laws to reign in emergency powers claimed by governors. Many of those efforts center on limiting the duration of stated emergencies to 30 days and requiring legislative approval for extensions.
We want you to remember that Donovan is the same person behind the state’s Gestapo ratline, preying on our basest instincts to snitch on our neighbors. Recall that an anonymous call to the ratline can earn you a visit from armed agents of the government without any due process.
We want you to remember that the Wisconsin Legislature challenged their Governor’s unilateral emergency powers and won. The state Supreme Court found Wisconsin’s “Safer At Home” order unlawful, invalid, and unenforceable. The court found, rightly we think, that the Governor’s emergency powers during a pandemic could only extend to infected residents and could not “prohibit all travel or require the closure of nonessential businesses because nothing in the statute specifically permitted these additional broad restrictions.”
We want you to remember that while Donovan wages his war on small business, he continues to work hard to incarcerate the fewest number of people possible for actual criminal convictions. So the AG thinks violent thugs and repeat offenders are inappropriate for lodging, but gym and storeowners - without enough hand sanitizer or masks - need to fall under the full weight of their government.
We want you to remember that all the many businesses forcibly shuttered by government fiat or an extension of public policy, are about to stay shut for good, causing an economic catastrophe from which we won’t ever recover.
We want you to remember that mass unemployment, food insecurity, depression, substance abuse and homelessness - all turbo-charged as the collateral damage of pandemic safeguarding - are also public health threats.
We want you to remember that our government was never so serious about heart disease, the flu, cancer, diabetes, pneumonia or texting while driving which are far deadlier scourges.
We want you to remember that nowhere in either Vermont or U.S. Constitution will you find a clause that says all citizen rights granted under those documents can be wholly suspended under a state of emergency.
Finally, we want you to remember, and we know this might now seem like a hazy concept, that we once lived in a free country that historically accepted a modicum of risk as part of the social contract.
In the final telling, our position aligns with Dr. John Clarke, emeritus professor of surgery at Drexel University, who explains, “You wear a mask because if you don’t, the most vulnerable person in the room - the patient - might get an infection because of you.”
We think if the price of getting back to normal is wearing a mask, it’s a price we’re happy to pay.
But we also remain uncomfortable with emergency orders in perpetuity and the government attacking citizens on questionable authority. We don’t think the effort to protect a statistically small subset of the population, at higher risk of any malady, is an appropriate cause to trample the Constitution, lay waste to the economy, turn people against each other, and criminalize honest brokers trying to feed their families and somehow pay their *still* extremely high property tax bills.