Imagine a superhighway with no lane lines
Can any agency or municipality give any type of orders to anyone?
Parent groups faced off against the Massachusetts Department of Elementary and Secondary Education (DESE) and a few municipalities after being denied an injunction in superior court to stop masking children in schools. This hearing was effectively an appeal of that judgement.
The foundational legal theory plaintiffs’ attorney Robert Fojo argued is that DESE and the municipalities do not have the legal authority to issue school mask mandates.
The foundational legal theory the defendants’ counsels argued is that higher courts have said that government agencies have “broad powers.” What does that mean? Any agency can do anything to anyone? Surely not.
Authority conferred by a statute to an agency or town board is limited to the express and implied intent of the legislature. Mass General Law Chapter 111 Section 31 is relied upon by the defendants as conferring authority to local boards of health. Section 31 begins, “Boards of health may make reasonable health regulations.”
Without any other context, and believing in “broad powers”, it would seem that the defendants have broad authority to enact health regulations such as masking school children.
However, there is much context missing from the defendants’ arguments. The title of Section 31 is “Health regulations; summary publication; hearings; impact on farming or agriculture; filing sanitary codes and related rules, etc.”
Further, Sections 31A and 31B pertain to removal of garbage. Section 31C pertains to air pollution. Section 31D pertains to cesspools and septic tanks, disposal of contents, and investigation of facilities. Section 31E pertains to individual sewage disposal systems.
Thus, the legislative intent need not be divined from abstract prose. It is quite clear that boards of health were intended to regulate waste run-off from farms, waste systems from human occupants, air pollution, garbage disposal, and other public health matters not relating to medical practice. In fact, there is nothing in Section 31 that expressly gives a local board of health the authority to declare a virus pandemic emergency, prescribe medical devices to be applied to children’s bodies, or to inject experimental products into people.
The municipalities are attempting to pervert one sentence into conferring “broad power”, though such power clearly forms narrowly from context in a long and explicit section of statutory law.
Imagine if this statute were to be interpreted as the defendants argue. Local boards of health that oversee construction of septic systems and leaching fields would have authority to practice medicine on children without a medical degree or license sheerly on “recommendations” they interpret from CDC, FDA, or Massachusetts Department of Public Health (MA DPH).
If MA DPH has the authority to prescribe medical devices such as masks be donned by school children, then why doesn’t MA DPH issue the mandate? Perhaps they know that even they cannot do so under the circumstances.
One counsel raised the Acts of 1950 (CDA - Civil Defense Act) as conferring authority to Cambridge to enact masking mandates. The CDA also has clear intent from the legislature. Though at the time of enactment, the legislature intended the CDA to address the potential for thermonuclear war with the Soviet Union, it has been adapted to respond to natural disasters. Some argue that the governor perverted the CDA for the COVID-19 pandemic in his emergency declaration in 2020 as did many other state governors. Although pandemic-specific laws exist in Massachusetts, the governor apparently didn’t think those laws conferred enough power to him. So he usurped civil defense law.
If Governor Baker has the power to declare an emergency under the Acts of 1950, then why hasn’t he declared another emergency? Perhaps it is because there is not and has not been a pandemic emergency for more than a year in Massachusetts.
Cambridge certainly does not have the authority to declare a civil defense emergency despite the errant volley by defense counsel.
There was mentioned another statute that confers upon boards of health the authority to enforce pandemic emergency mandates. However, that statute in no way confers authority to issue such mandates just as police are not given the authority to make law as they enforce law.
DESE is at the heart of the mask mandates. DESE sent a letter, not an order, not a statute, not anything resembling authority, to all the school districts in Massachusetts to begin masking school students. They claimed “exigency”, which is a word required in another statute dealing with student learning time. The DESE letter was not signed by anyone. There is no person responsible for issuing this letter.
When Governor Baker issued pandemic response COVID-19 orders, each was numbered and signed by the governor acting in his official capacity. The Acts of 1950 was referenced in each order and there was a legal trail of authority.
This case brought by parents showcases a rogue agency, DESE, sending a letter to rogue
municipalities, all of which are practicing medicine without a license, while MA DPH and Governor Baker, who have the authority, in theory, sit by and watch. This situation is administrative state law folly.
MA DPH and Baker know or should know there is not now an emergency justifying such orders. They also know or should know that DESE and municipalities have no authority to do what they have done in issuing school mask mandates.
Now, it is the court’s decision whether to allow rogue agencies and municipalities whose purviews are education and septic systems, respectively, to practice medicine without a license. There is no legal excuse such as, “MA DPH provided an affidavit that it’s a good idea to mask children in school.” That’s not good enough. There has to be a trail of authority. MA DPH has not issued these orders. Nor has the governor. And DESE and the municipalities do not have the authority to issue these orders.
If these mask orders are allowed to stand, the administrative agency schema has mutated into a legal chimera that will eat itself. Towns will be allowed to make medical decisions by fiat for citizens and their children despite lacking any subject matter expertise in those decisions.
An interesting last note about DESE is that their letter/mandate stated that if a school reached 80% vaccination of the student body, then masks would be optional. It is now widely known and accepted by both sides of the pandemic scientific community that the vaccinated carry as much viral load as the unvaccinated and are equally contagious. Thus, DESE has impliedly stated that their intent in masking school children is not to keep them safe, but rather to keep them oppressed by the mask as a negative incentive, or punishment, until they get vaccinated.
In defense of mask lawsuits, the State of Massachusetts relied upon three entities that tout masks as having a net positive effect: The World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), and The Institute for Health Metrics and Evaluation (IHME).
The WHO is a corrupt world organization that should never be relied upon to enact law.
Until last week, the CDC’s mask recommendations were arbitrary and lacked specificity. CDC now claims only N95’s are effective. The work done by CDC researchers in determining mask efficacy is embarrassing and biased (see https://www.cdc.gov/ mmwr/volumes/70/wr/pdfs/mm7039e1-H.pdf).
In the paper referenced by weblink herein, the researchers/ authors essentially determined that really large schools have a higher probability of having two COVID-19 cases than small schools do; yet they blamed masklessness rather than school size.
While OSHA is the agency charged with testing and specifying medical devices such as masks, OSHA has abstained from specifying the type of mask or respirator necessary to prevent the spread of COVID-19. Why? Perhaps they know masks don’t work and left it to CDC to make arbitrary recommendations.
IHME is heavily relied upon by the State of Massachusetts in the federal case 1:20-cv-11187- NMG and other cases as an authority touting mask efficacy. In 2017, The Bill and Melinda Gates Foundation (BMGF) announced that IHME would receive $279 million (see gatesfoundation.org). BMGF also pledges $millions in grants through the Massachusetts Medical Society. Bill Gates’ investments in vaccine companies will likely rally him back to being the richest man in the world. Why does Massachusetts rely upon IHME as an authority to promote a mask device that is clearly punishment for not vaccinating?
About the author:
John Paul Beaudoin, Sr., B.S. Computer & Systems Engineering, MBA, has 30+ years in the semiconductor R&D market acting as liaison between engineers/scientists and executive administrative functionaries. John is studied across multiple disciplines, human and mathematical. More importantly, he is the father of three sons, youth soccer coach, Christian, and a discerner of scientific conclusions.