North Carolina COVID-19 Statewide Face Mask Requirement Was a Crime
North Carolina Governor Roy Cooper’s Executive Order Number 147
Government officials who make and uphold laws supposedly protect the rights of consumers, partly by advancing the free flow of accurate information in the marketplace. Such laws supposedly prevent fraud and unfair practices, thereby shielding individuals from unethical and careless actions. Such laws help insure that citizens, consumers, people in general should not be burdened by unfair, ill-conceived policies that disrupt entire economies or ways of life.
In this respect, North Carolina Governor, Roy Cooper, failed by issuing multiple executive orders that shut down the state’s economy, ignited massive unemployment, and ruined the quality of many lives. He announced his most invasive Executive Order No. 147 on June 24, 2020, which included a face-mask requirement for the whole state.
Questioning the Governor’s Authority
I cannot claim any formal legal expertise. I can only observe and point out inconsistencies that lead me to conclude that the governor did not have authority to impose a statewide face mask mandate.
In the recital of NC Executive Order No. 147, under the heading, Statutory Authority and Determinations, the Governor cited sixteen statutes to justify his authority.
Interestingly, he did not cite Statute 166A-19.30(b), which begins:
- During a gubernatorially or legislatively declared state of emergency, with the concurrence of the Council of State, the Governor has the following powers:
The key phrase here is with the concurrence of the Council of State.
In North Carolina, the Council of State consists of a group of top state officials that includes the Governor, Lieutenant Governor, Secretary of State, Attorney General, Treasurer, Commissioner of Labor, Commissioner of Insurance, Commissioner of Agriculture, Superintendent of Public Instruction, and State Auditor.
Statute 166A-19.30(b) goes on to list the most extensive, life-changing government powers during a declared emergency. This appears to be the clause most relevant to mandating face masks for all the state, although I find the statute vague or unclear about Council concurrence, which seems to be a grave shortcoming in need of legislative strengthening to prevent one voice from destroying the economy because of an extreme overreaction.
Such an intimate, intrusive measure aimed at controlling what humans wear on their bodies would seem to have required the same concurrence of the Council of State as required for taking control of state resources or evacuating part of the population. Also, since such an intimate, intrusive measure restricted the rights of consumers by forcing companies statewide to refuse normal businesses and services to anyone who did not wear a face covering, this order clearly entered the realm of power requiring concurrence of more than a minority of the Council.
The Governor, however, at the outset of issuing his COVID-19 executive orders, ignored the majority negative vote of the Council on one order. He then proceeded to issue additional executive orders that shut down wide swaths of the state’s economy, without even seeking concurrence from the Council on those additional orders.
Executive Order No. 147, which included the face mask mandate, is one such order where the governor failed to seek concurrence. The state Attorney General (only one member of the Council of State) happened to concur with the Governor. The Governor did not approach the rest of the Council.
How the top legal officer of the state and the Governor managed to sidestep concurrence of the majority of Council members, to issue wording of a face mask requirement with the force of law remains a mystery to me.
What is more of a mystery is why the Lieutenant Governor started so late to bring this information to the attention of the public, with a formal lawsuit against the Governor. Why did this matter become so serious, only months after the fact?
At the time of writing this article, the Lieutenant Governor’s lawsuit against the Governor was just getting under way. The specific aim of the lawsuit was strictly to challenge the Governor’s authority to act as he did. I contend that the substance of the order was equally open to challenge, particularly the evidence and reasoning about cloth face masks.
Questioning the Substance of the Governor’s Order
In reading numerous technical articles, I have discovered that researchers who endorse a universal face mask policy inevitably misrepresent key uncertainties. As they present their actual findings, they use tentative, soft and cautionary language that they suddenly erase in their final conclusions. Such researchers, therefore, are failing to inform policy makers truthfully. Policy makers are then amplifying these failures by instituting extreme social measures based solely on researchers’ professional faith.
The most outstanding proof of this can be seen in the following study:
Nancy H. L. Leung, Daniel K. W. Chu, Eunice Y. C. Shiu, Kwok-Hung Chan, James J. McDevitt, Benien J. P. Hau, Hui-Ling Yen, Yuguo Li, Dennis K. M. Ip, J. S. Malik Peiris, Wing-Hong Seto, Gabriel M. Leung, Donald K. Milton & Benjamin J. Cowling (2020). Respiratory Virus Shedding in Exhaled breath and Efficacy of Face Masks, Nature Medicine, 26:676–680.
Before considering this study’s content, first realize that the most direct way SARS-CoV-2 virus infects people is through aerosols. Originally, it was believed to infect primarily through larger respiratory droplets. In light of this realization, pay attention to the following statement from the article:
- Our findings indicate that surgical masks can efficaciously reduce the emission of influenza virus particles into the environment in respiratory droplets, but not in aerosols.
Notice that this is referring to surgical masks.
Accordingly, woven-cloth masks (inferior to surgical masks) would not be effective in reducing the emission of SARS-CoV-2 virus aerosol particles that allegedly cause the COVID-19 disease.
If aerosol particles are escaping cloth masks on everyone wearing them, and if even a few people together are emitting aerosol particles collectively through their masks into the surrounding air over the course of an entire day, then logic dictates that a cloud of aerosol particles will always be in the surrounding air. Cloth masks will not effectively reduce the emission of aerosol particles. Cloth masks, therefore, will not effectively reduce the emission of SARS-CoV-2 virus aerosol particles that become part of this cloud of aerosol particles in the surrounding air.
Surprising findings of the above study are revealed in these statements:
- Among the samples collected without a face mask, we found that the majority of participants with influenza virus and coronavirus infection did not shed detectable virus in respiratory droplets or aerosols, ….
- For those who did shed virus in respiratory droplets and aerosols, viral load in both tended to be low. … this might imply that prolonged close contact would be required for transmission to occur, even if transmission was primarily via aerosols, ….
- Our results also indicate that there could be considerable heterogeneity in contagiousness of individuals with coronavirus and influenza virus infections (in other words, different people shed different amounts of virus differently).
So, not only are cloth masks ineffective in reducing aerosol emissions, but also the chances are small for a person’s becoming infected from casually passing other people or from briefly interacting with other people (unlike in hospital settings, where such interactions are more direct over much longer periods).
Furthermore, if infectious aerosol particles are unavoidably present in the surrounding air, then logic dictates that people wearing simple masks are exposed to the risk of picking up infectious particles on their masks, in addition to breathing in a percentage of the particles through tiny spaces between threads of the fabric.
As people move about, they also collect a certain percentage of these infectious particles, and the particles build up in a concentration, on the fabric, near the mouth. Even more, people wearing masks breathe in these particles around the edges of their masks, where facial contours and lack of an airtight seal create tiny tunnels through which air flows during the suction of each inhaled breath.
One of the authors of the above study, Dr. Don Milton, has been quoted as saying:
- In normal times we'd say that if it wasn't shown statistically significant or effective in real-world studies, we don't recommend it. But in the middle of a pandemic, we're desperate. The thinking is that even if it cuts down transmission a little bit, it's worth trying.
Here we have a lead researcher finding that surgical masks, hence cloth masks, cannot effectively reduce emission of virus aerosols, and that prolonged exposure to other individuals is probably required to get infected, even from aerosols, yet he resorts to a desperate-times-call-for-desperate-measures philosophy to justify government actions that compromise personal freedoms and severely inhibit the ordinary flow of commerce and consumption.
Suppose an engineer were to say, If an extra wooden two-by-four reduces the velocity of a steel bridge collapsing a little bit, it’s worth trying? If engineers built bridges according to such a philosophy, then no rational person would ever use bridges. Yet, this was the sort of philosophy driving governments, as they forced face masks onto everybody.
Trusted health organizations such as the World Health Organization, Centers for Disease Control and Prevention, United Sates Department of Health and Human Services, and (locally) the North Carolina Department of Health and Human Services have mirrored this same, primarily faith-driven philosophy. Biased interest groups further forced the faith onto government officials, who caved under pressure to create appearances of taking effective action, in order to maintain public confidence and political favor.
What happened, then, in the communication of crucial information about cloth face masks, was that faith-driven conclusions overpowered the truth of actual, underlying uncertainties. Consequently, because they had been published in professional journals or promoted by respected organizations, these faith-driven conclusions became false facts.
What also happened was that only mask-endorsing studies were being widely promoted by popular media and organizations trying to appease public fears, thus giving the false appearance that cloth masks work as advertised (they do not).
This was a form of information consumer fraud, in the sense that negligence to consider all the facts created gross misdirection in policy-making for North Carolina residents, thereby misleading and impeding NC residents’ ability to act as consumers in relation to goods or services -- all goods and services, in fact, since all businesses were legally bound to refuse entry to anybody not wearing a mask.
The duty of public officials is to set policies based on the most rational review of all the evidence, which does not entail acting on third tier evidence, such as the evidence for cloth face mask effectiveness. Neglecting the responsibility of investigating all evidence, thus, has the effect of being criminal.
Impeding the normal operation of society in profound ways warrants meticulous, serious, broad consideration of all the evidence. This did not happen in proper proportion to the actual virulence of SARS-CoV-2 for the majority of people, with respect to cloth face masks.
North Carolina Governor Roy Cooper’s Executive Order Number 147 was a law that drastically interfered with the entire consumer process, by refusing reasonable access to goods and services to people who rejected what amounts to nothing less than superstition or scientifically unfounded tradition.
Failure to Review All the Evidence
I contend that Governor Cooper failed to review all the evidence. A comprehensive review of evidence should have included studies such as the following six, whose main points I have quoted directly:
1. Lisa M. Brosseau, ScD, and Margaret Sietsema, PhD (2020). Commentary: Masks-for-all for COVID-19 Not Based on Sound Data, CIDRAP (Center for Infectious Disease Research and Policy)
- Sweeping mask recommendations—as many have proposed—will not reduce SARS-CoV-2 transmission, as evidenced by the widespread practice of wearing such masks in Hubei province, China, before and during its mass COVID-19 transmission experience earlier this year. Our review of relevant studies indicates that cloth masks will be ineffective at preventing SARS-CoV-2 transmission, whether worn as source control or as PPE [Personal Protective Equipment].
- Overall, the body of research on mask efficacy in real-world settings is small and scattershot. And because SARS-CoV-2 was completely unknown to humanity just five (extremely long) months ago, there is no data on the efficacy of any type of mask wearing in any setting (healthcare or home) for this virus.
- In sum, given the paucity of information about their performance as source control in real-world settings, along with the extremely low efficiency of cloth masks as filters and their poor fit, there is no evidence to support their use by the public or healthcare workers to control the emission of particles from the wearer.
2. Rajat Mittal et al. (2020). The Flow Physics of COVID-19, Journal of Fluid Mechanics.
- … the rapid advance of COVID-19 around the world has laid bare the limits of our knowledge regarding the physics underlying the transmission process, as well as the inadequacy of the methods, devices and practices used to curtail transmission rates.
- Studies also suggest that social distancing in indoor environments could be complicated by ventilation-system-induced air currents.
- The turbulent cloud [of exhaled particles] also moves upwards due to buoyancy, thereby enabling small droplets and droplet nuclei to reach heights where they can enter the ventilation system and accelerate airborne transmissions.
- These droplet nuclei are submicrometre to approximately μm [micron] in size, and may remain suspended in the air for hours.
- … SARS-type infections in a host may potentially be caused by a single virus.
- While a mask can significantly reduce the velocity of the throughflow jet during expiratory events, the increased pressure in the region between the mask and the face pushes the face mask outwards, resulting in increased perimeter leakage.
- The leakage jets that issue from the perimeter can be turbulent and highly directed, potentially serving as effective dispersers of respiratory aerosols in transverse directions. Spasmodic expiratory events such as coughing and sneezing that generate high transient expulsion velocities will significantly diminish the outward protection effectiveness of face masks.
3. Talib Dbouk and Dimitris Drikakis (2020). On Respiratory Droplets and Face Masks, Physics of Fluids 32.
- Further research is required to advance the understanding of the following:
- Droplets breakup and coalescence phenomena that induce a liquid film barrier on the fibrous porous surface of the face mask, e.g., at the pore microstructure scale.
- Cough dynamics across subjects that experience different medical conditions.
- Saliva droplet composition effects on cough dynamics and droplet transmission.
- The effects of a high-filter efficiency offered by more advanced mask designs relative to breathing comfort.
4. Bhanu Bhakta Neupane, Sangita Mainali, Amita Sharma, and Basant Giri (2019). Optical Microscopic Study of Surface Morphology and Filtering Efficiency of Face Masks. PeerJ, 7, e7142.
- The findings of this study suggest that CM [Cloth Masks] are not effective, and that effectiveness deteriorates if used after washing and drying cycles and if used under stretched condition.
5. Jingyi Xiao, Eunice Y. C. Shiu, Huizhi Gao, Jessica Y. Wong, Min W. Fong, Sukhyun Ryu, and Benjamin J. Cowling (2020). Nonpharmaceutical Measures for Pandemic Influenza in Nonhealthcare Settings-Personal Protective and Environmental Measures. Emerging Infectious Diseases, 26(5), 967–975.
- Disposable medical masks are loose-fitting devices that were designed to be worn by medical personnel to protect accidental contamination of patient wounds, and to protect the wearer against splashes or sprays of bodily fluids.
- There is limited evidence for their effectiveness in preventing influenza virus transmission either when worn by the infected person for source control or when worn by uninfected persons to reduce exposure.
- Our systematic review found no significant effect of face masks on transmission of laboratory-confirmed influenza.
6. Rich Besser and Baruch Fischhoff (members of the National Academies of Sciences, Engineering, and Medicine’s Standing Committee on Emerging Infectious Diseases and 21st Century Health Threats), with input from Sundaresan Jayaraman and Michael Osterholm (2020). Rapid Expert Consultation on the Effectiveness of Fabric Masks for the COVID-19 Pandemic.
- The current level of benefit, if any, is not possible to assess.
Cloth Face Masks as “Talismans”
The final article of evidence that I offer deserves special mention, because it is a disturbing revelation of the misdirection regarding face masks, during the COVID-19 era. Written by doctors (modern day, medical professionals), the article was directed at professional hospital staff, but it clearly reflected the underlying motivation of virtue signaling behind forcing everybody in society to wear face masks. After each of the article's main points, quoted directly, I follow with my comments:
7. Michael Klompas, M.D., M.P.H., Charles A. Morris, M.D., M.P.H., Julia Sinclair, M.B.A., Madelyn Pearson, D.N.P., R.N., and Erica S. Shenoy, M.D., Ph.D. (2020). Universal Masking in Hospitals in the Covid-19 Era, New England Journal of Medicine, 382:e63.
- We know that wearing a mask outside health care facilities offers little, if any, protection from infection. Public health authorities define a significant exposure to Covid-19 as face-to-face contact within 6 feet with a patient with symptomatic Covid-19 that is sustained for at least a few minutes (and some say more than 10 minutes or even 30 minutes).
- The chance of catching Covid-19 from a passing interaction in a public space is therefore minimal. In many cases, the desire for widespread masking is a reflexive reaction to anxiety over the pandemic.
The final sentence is worth repeating: In many cases, the desire for widespread masking is a reflexive reaction to anxiety over the pandemic.
Anxiety was an irrational reason driving North Carolina's governor to compromise individual freedoms and impede commerce in an entire state. Continuing from the article:
- Focusing on universal masking alone may, paradoxically, lead to more transmission of Covid-19 if it diverts attention from implementing more fundamental infection-control measures.
Focusing on universal masking, even in conjunction with more fundamental control measures, completely overlooks the reality of many people’s failure to comply with the most basic best practices in using simple cloth masks, which reduces the entire exercise to a futile, superficial, symbolic display of compliance with authority. The article goes on:
- The extent of marginal benefit of universal masking over and above these foundational measures is debatable.
The marginal protective benefit of universal masking is indeed very debatable, as the previously cited five research articles prove. What is not debatable is how this is less important than an emotional benefit. If leaders promote masks as practical, physical barriers to limit spreading an infection, then the mask needs to conform to this claim. Otherwise, the claim is unfounded. Yet, medical professionals are writing this:
- There may be additional benefits to broad masking policies that extend beyond their technical contribution to reducing pathogen transmission. Masks are visible reminders of an otherwise invisible yet widely prevalent pathogen and may remind people of the importance of social distancing and other infection-control measures.
Look at what those words mean: broad masking policies remind people of a pathogen’s existence and of basic behavior to deal with a pathogen. This is irrational.
Lawmakers do not require smokers to wear pirate flags as reminders that smoking can kill. Lawmakers do not require people who eat at restaurants to carry food-group diagrams as reminders to eat healthy. Lawmakers do not require people who drive cars to attach red balls to their antennae as reminders to drive safely. Lawmakers do not require people who consume alcoholic beverages to carry rabbit feet as reminders to drink responsibly.
Even worse, though, the modern day, medical professionals continue in their rationalizations:
- It is also clear that masks serve symbolic roles. Masks are not only tools, they are also talismans that may help increase health care workers’ perceived sense of safety, well-being, and trust in their hospitals.
- Although such reactions may not be strictly logical, we are all subject to fear and anxiety, especially during times of crisis. One might argue that fear and anxiety are better countered with data and education than with a marginally beneficial mask, particularly in light of the worldwide mask shortage, but it is difficult to get clinicians to hear this message in the heat of the current crisis.
- Expanded masking protocols’ greatest contribution may be to reduce the transmission of anxiety, over and above whatever role they may play in reducing transmission of Covid-19.
- The potential value of universal masking in giving health care workers the confidence to absorb and implement the more foundational infection-prevention practices described above may be its greatest contribution.
Symbols? Talismans? Admittedly illogical? Reduce anxiety – how, by not being honest? Giving confidence – again, how, by not being honest? I cannot find words to describe such an indulgent display of truth obfuscating, unrealistic, excessive, emotional appeal. Suffice to say that this is a far cry from any practical reason to force all people to cover their faces while in public.
There is no legality in invoking such reasoning to justify government actions that profoundly invade people’s everyday, personal lives. Rather, this sort of reasoning resides in the domain of religion.
Nonetheless, the research that I have presented leads to the conclusion that such faulty reasoning was precisely the shaky foundation upon which North Carolina’s face-mask mandate ultimately came to rest.
As such, the statewide law, ultimately founded on symbolism, talismans, illogical thinking, and comfort objects, was unjust on many levels.