Conclusion

Individual rights secured by the Constitution do not disappear during a public health crisis. Although the governor has powers under the EMDL, the General Assembly is limited by nondelegation principles in its ability to delegate its lawmaking powers to the governor and his agencies. And while the General Assembly maintains the authority to terminate the public health emergency, this authority can only be exercised when the General Assembly is in session. To ensure a check on the governor’s proposed executive order, and the establishment and maintenance of appropriate guidelines, it would be necessary for the governor to call the General Assembly into special session.

The governor has taken conduct that has not been specifically criminalized by the General Assembly and declared that a violation of his executive order under EMDL is a Class B misdemeanor. The General Assembly did not clearly delegate this authority to the governor. Even if the authority was clearly delegated, it is questionable whether the General Assembly could grant such broad authority without clear guidelines provided to the governor.

I encourage the use of masks, but we are bound by the Indiana Constitution and the laws of our state. Indeed, we have a duty to uphold and defend our laws pursuant to our oaths. This Opinion is not an argument for or against masks, but it is about process. These decisions on matters that have the effect of law and bind all of us continue to be made in private and handed down by decree. For Hoosiers, whose lives and livelihoods are on the line, to have a voice in how we continue to deal with the virus, it is critical that the General Assembly assume its constitutional role. Pursuant to the Indiana Constitution, and the laws of our great state, if a mask mandate is to be a law, it is up to the General Assembly to make that determination.

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