ROBERT ROBB

Doug Ducey is risking state cash for a mask law that no longer exists. Too far, governor

Opinion: Gov. Doug Ducey has chosen to pander with a mask mandate ban. That's fine. But his fight with the feds puts real money on the line. That's too far.

Robert Robb
Arizona Republic

I understand the populist conservative opposition to vaccine and mask mandates. I disagree with a significant part of it, but I understand it.

And I understand Gov. Doug Ducey catering to the populist conservative opposition to such mandates. Populist conservatism is the ascendant force in the Republican Party at present.

What I cannot even begin to fathom is how Ducey could conclude that it was appropriate to use federal COVID-19 relief funds to enforce a mandate ban on schools.

Not all conservatives agree with the governor

The populist conservative view is that whether to take the vaccine or wear a mask is an individual choice. And for children, it is a parental choice. That choice is supreme and cannot be restricted by any entity or institution, whether a government or a private business.

Now, with respect to private businesses, traditional conservatism says that the owners have a property right regarding the issue. If the owners want to require those who work for them to be vaccinated, or customers that frequent their premises to be masked, that is their right.

Individuals have a right to decline to be vaccinated or wear a mask. But they don’t have a right to work in a particular place or patronize a particular shop.

Populist conservatism doesn’t have the same respect for property rights and free markets as traditional conservatism. Which is why some of us don’t regard it as true conservatism, rightly understood.

My own view is that the federal and state governments should neither issue vaccine and mask mandates nor ban them. At this point in the epidemic’s path, deciding how to safely operate should be left to private business and local governments, including schools.

Ducey wasn't always against mask mandates

Gov. Doug Ducey is putting state funds at risk in a battle he'll likely lose in court. That's going too far.

Ducey has never expressed support for banning private businesses from adopting vaccine or mask requirements. An effort to do that percolated in the Legislature, but wasn’t included in the mandate ban that ultimately passed. The ban was limited to local governments and schools.

Ducey also wasn’t always uniformly opposed to mask mandates. When the first COVID-19 wave was overwhelming hospital capacity, he issued an executive order allowing local governments to adopt them. And he in effect established a statewide mask mandate by making one a requirement of certain businesses – such as restaurants and retail outlets – being open.

With a significant portion of the population vaccinated, the delta variant spread doesn’t pose the same risk to the health care system as the initial wave. And Ducey has adopted the populist conservative view on vaccine and mask mandates, sans the injunction against private businesses.

There is no ban. So it's not about state law

That extended to creating two programs for school funding based upon vaccine and mask mandates. As a practical matter, the issue is mask mandates, since no schools are adopting vaccine mandates.

Under Ducey’s programs, students whose public school has a mask mandate can receive a voucher to attend a private school. And schools without mask mandates can receive a significant boost in per-student funding.

In the press releases announcing the programs, Ducey made a big point that all that was required was adherence to state law, which at the time included a ban on schools adopting mask mandates. No money for lawbreakers was the theme.

But a Superior Court judge has found that the ban was unconstitutionally enacted. At present, there is no such ban. Nevertheless, Ducey has vowed full steam ahead with his two programs.

However, Ducey’s funding source is federal COVID-19 relief monies. And the Department of Treasury has warned that Ducey tying distribution to schools forgoing mask mandates is illegal and subject to having to be paid back to the federal government.

Now Ducey is putting state funds at risk

Ducey has been defiant and proclaimed that, to get the money back, the feds would have to go to court. And issued the usual blather about fighting a dictatorial federal government under President Joe Biden.

Now, such rhetoric may be apposite regarding the OSHA mandate on private employers the Biden administration is cooking up. But this is exclusively federal money allocated to achieve federal purposes, which don’t include enforcing a mask mandate ban on schools.  

This isn’t a matter of states’ rights or dual sovereignty. Ducey isn’t exercising any power granted him by the state Constitution or state law. He is acting as an agent of the federal government.

If this goes to court, I suspect that the Treasury Department would win, at least if the Ninth Circuit Court of Appeals has the final say.

That means that, rather than allocate federal funds to all schools on an equal basis, Ducey is putting state funds at risk in an attempt to use federal funds to enforce a mask mandate ban a state judge has vacated.

That’s taking a political pander too far.

Reach Robb at robert.robb@arizonarepublic.com.