To be clear, "law" ≠ legislation. Acting with the force of law can take a wide range of forms, but the term legislation tends only to refer to law enacted through the legislative body and signed by the executive (or over her). Guidance may provide the public with notice as to how a given body delegated rulemaking and law enforcement authority will exercise that authority, but that is not the same thing as legislation.
And whether or not this small town Mayor's take is valid legal analysis (narrator: it's not),
this is why I think these kinds of executive-order/guidance orders can be counter-productive:
Quote:The mayor of Nevada City suggested citizens do not need to follow California Gov. Gavin Newsom's statewide mask mandate in a Facebook post Saturday. "As you go about your day today, KNOW there is NO LAW that Orders you to Wear a Mask. Our Governor does NOT have that unilateral power to make such orders. While I know the HEADLINES over the last couple days have stated something entirely different, that is because journalism is dead," Reinette Senum wrote.
"Again, THERE IS NO LAW THAT STATES YOU MUST WEAR A MASK. Ask our local Police chief or officers. They will not, and cannot, cite ANYBODY for not wearing a mask because the law does not exist. When you come across Newsom's orders' online, you will see it's linked to a page that does not lead you to his Executive Order, BUT to the California Department of Public Health GUIDELINES! Again, NOBODY can be forced to wear a mask outside, in a business, or as an employee or customer."
Senum then linked to the California Department of Public Health page, which reads: "This document updates existing CDPH guidance for the use of cloth face coverings by the general public when outside the home. It mandates that face coverings be worn state-wide."
An earlier executive order issued by Newsom gave the state the ability to enforce regulations from the CDPH, and the recent mask order does have an enforcement component. Violating the order could result in a misdemeanor and/or a fine, according to the California Department of Public Health, although most enforcement has come in the form of educating the violator.
In addition, although an order is not technically a law, legal experts believe it carries the same weight as legislation. Per PolitiFact:
"James G. Hodge Jr., director of the Center for Public Health Law and Policy at Arizona State University, called it 'entirely accurate' to consider an executive order to be a law. Laws can be derived from a constitution, a statute, a regulation, case law, 'or orders implemented through legal means, including emergency powers invoked by governors.'"
You, I, and anyone being honest with themselves knows that there will be almost no legal enforcement of this order. From mid-March to early May, SF issued
just over 100 "warnings" for violations of its shelter in place order weeks into it. As of May 11, according to that article, there were just 23 citations issued from March 18 to May 11.
Thus, again, my contention is that these kinds of orders will only work when the populace has bought into them, along with the law enforcement community on the ground. And when they are poorly drafted and announced overnight, they are only as effective as we collectively want them to be. I am guessing Ms. Senum was not asked to weigh in on this matter before she learned about it like the rest of us, nor the chief of police for her city, nor the sheriff for her county. IMHO, that's a problem from the standpoint of compliance, whatever "the law" is.
And incidentally, it's also worth noting that Newsom's prior guidance came one vote short of being overturned at the Supreme Court. So it's not like we're floating on untroubled legal waters here, either.
