The battles in the courts pitting red state governors against mask mandates comes down to executive authority and the length and scope of emergency declarations, according to legal expert Alan Dershowitz on Newsmax.
"It has nothing to do with whether you can have a mask mandate at all, as I said many times on your show very early on, the big issue is who gets to decide?" Dershowitz told host Carl Higbie on "Saturday Report," about a Florida judge blocking GOP Gov. Ron DeSantis for outlawing local or private mask mandates.
"Is it the governor or is it the state legislature or the city council? In a democracy, the governor, the executive, enforces the law. The executive doesn't make the law, except in cases of immediate emergency."
In the Florida case, Dershowitz noted, DeSantis has to abide by the state lawmakers determining local officials can make decisions on masks.
"So this was a case not about whether you can have mask mandates or not," he continued. "It was a case about who gets to decide, and the judge said the governor didn't have that authority. The legislature had already decided that towns and cities have the right to make decisions about masks."
There are going to be court rulings on similar issues, Dershowitz added. The issues are similar to the election process changes state by state that altered the voting process without authorization from state legislatures.
"So we're going see lots and lots of cases now challenging mayors, challenging governors, challenging other executives saying: 'The emergency is over. You have time now. The legislature can make those decisions.'
"And the legislature should make those decisions."
It comes down to the state legislature in determining the continued emergency declarations, such as the case with COVID-19, according to Dershowitz.
"Every state is different," he said. "If the legislature has explicitly authorized the governor to act, then the governor has a mandate from the legislature. That didn't happen, according to the judge, in Florida.
"So, governors can only act and make law when the legislature authorizes them to do so. There's no inherent gubernatorial authority, mayoral authority, to make the law except in cases of imminent emergencies that will end soon."
Also, emergency declarations are not indefinite and have some time limitations, according to Dershowitz.
"Emergencies can't be allowed to last a year, a year and a half, without legislative action," Dershowitz concluded. "That's what democracy is about: Legislatures make the law."
Republicans and lawyers supporting former President Donald Trump have noted election processes changed in the past presidential election under the guise of COVID-19 unconstitutionally skirted the authority of state legislatures, but the courts ultimately are going to be asked to define the scope of emergency powers by state executives and officials.
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