Republican lawmakers intended to prohibit schools, cities, and counties from requiring masks when they amended an education bill on the final day of the legislature's 2021 session. But House File 847, which Governor Kim Reynolds rushed to sign within hours of its passage, was not well crafted to accomplish that goal.
An apparent drafting error opened the door for the mask order Iowa City Mayor Bruce Teague announced on August 19, with the full support of the city council.
"EVERY PERSON...MUST WEAR A FACE COVERING"
The mayor's order (enclosed in full below) stipulates that "Every person in the City of Iowa City must wear a face covering that covers their nose and mouth when in a public place as follows," listing numerous indoor public settings as well as public transportation and outdoor settings "when one cannot stay six (6) feet away from others."
People under age 2 or with certain health conditions, or those "actively engaged in a public safety role," are exempt from the order, which took effect at 11:59 pm on August 19 and runs through September 30.
Governor Kim Reynolds' spokesperson Pat Garrett told some reporters that Iowa City's order is "against the law and it’s not enforceable." Although the Iowa Attorney General's office determined in March 2020 that local governments were not empowered to enforce shelter-in-place orders or other mandates to address the COVID-19 pandemic, several cities or counties enacted mask requirements anyway.
Republican lawmakers and Reynolds wanted to ban that practice, which is why Garrett asserted the new Iowa City mandate is "against the law." A close reading of the statute doesn't support that interpretation.
"PROPERTY OWNERS...CAN MAKE DECISIONS FOR THEMSELVES"
State Representative Dustin Hite (an attorney) offered the language banning mask mandates when the Iowa House debated an education bill on May 19. Introducing his amendment, Hite explained that schools would not be able to "require the wearing of masks" with a few exceptions, and "cities and counties cannot require masks on private businesses."
Hite's amendment was added to House File 847 as sections 28 through 31, with language allowing its provisions to take effect immediately after the governor signed the bill, rather than on July 1 like most legislation. Section 30 reads (emphasis added),
A city shall not adopt an ordinance, motion, resolution, or amendment, or use any other means, that requires the owner of real property to implement a policy relating to the use of facial coverings that is more stringent than a policy imposed by the state.
Iowa City's order does not require business owners to implement mask policies. It requires most individuals to wear face coverings in most public settings, including a wide array of businesses.
Democratic State Representative Christina Bohannan offered an amendment to Hite's amendment that would have limited the new restrictions to the COVID-19 pandemic, giving local governments the flexibility to address future public health threats with mask mandates if needed. In urging colleagues to reject the amendment, Hite said Iowa law allows the governor to deal with other kinds of threats in the context of a disaster emergency proclamation.
He added, "I think property owners--that's what we're talking [about] with cities and counties, property owners, and with the schools, we're talking parents--can make [those] decisions for themselves." Watch:
House Republicans voted down Bohannan's amendment along party lines and later approved Hite's amendment and the bill in the same way. Reynolds beamed when House Speaker Pat Grassley delivered the bill to her desk shortly after midnight on May 20 and signed the bill, flanked by anti-mask and anti-vaccine conspiracy theorists.
No doubt most GOP lawmakers thought they were banning cities and counties from requiring masks under any circumstances. But courts look at the text of laws, not what might have been in the minds of legislators when they drafted and approved the bills.
The "good news" for Republicans is that sometime this fall (most likely in late September or October), they will reconvene for a special session to deal with redistricting. I anticipate they will also amend this portion of Iowa code to correct their mistake from May and unambiguously prohibit all local regulation of face coverings.
Meanwhile, Iowa City leaders may have bought a little time. The mayor's order could blunt the force of the Delta variant wave likely to hit the area as thousands of unvaccinated students return to the University of Iowa. Its impact will be limited, however, by the fact that university leaders won't enforce the mask mandate on campus.
UPDATE: Ross Grooters, a city council member in Pleasant Hill, questioned my analysis, saying cities are also owners of real property and are arguably in violation of House File 847. Since the matter has not been considered by any court, Grooters cautioned against stating Iowa City's order complies with state law, and saying it does minimizes the political courage shown by local officials.
I sought comment from University of Iowa law professor Todd Pettys, who didn't agree with that reading of the statute. House File 847 says a city can't require "the owner of real property to implement a policy relating to the use of facial coverings that is more stringent than a policy imposed by the state.” To say a city can't require a city to implement a certain kind of policy is "not a natural way to read the text, and in any event it doesn’t describe what Iowa City did—Iowa City’s mayor didn’t issue a declaration telling Iowa City that it had to implement a policy of one sort or another."
Moreover, Pettys noted,
that’s exactly the opposite of the question that the Iowa Supreme Court has said we must ask under the Home Rule provisions of the Iowa Constitution and the Iowa Code. The court has said that a local measure is valid under those provisions unless the conflict with state law is obvious and unavoidable. The conflict here certainly is not obvious, given how oddly one must read the state law in order to perceive a conflict. And the conflict is certainly not unavoidable, because you can instead read the state law in the way that its text naturally suggests—namely, that a city cannot tell property owners within its jurisdiction what their facemask policies must be.
Appendix: Iowa City Mayor Bruce Teague's Order on Face Coverings, issued on August 19 and effective through September 30:
Top image: State Representative Dustin Hite speaks about an amendment intended to ban school and local mask mandates. Screenshot from Iowa House official video on May 19, 2021.