Regulating Your Face
No one likes being told what to do. It’s the reason that philanthropists prefer to contribute to the charitable causes of their choosing, rather than paying more in taxes. It’s the reason that courts have equated enforcing a contract with imposing involuntary servitude. It’s the reason for viewing government as a “necessary evil,” rather than a fortuitous collective agreement.
And it’s the reason for the controversy around a host of new public health issues presented by the COVID-19 pandemic.
Americans take least kindly, perhaps, to being told what to do when the government does the telling. There is some irony to this position in that on some level, the government just means other Americans. (Although if the government doesn’t represent you, that’s a problem. If you chose not to vote, that’s—sometimes—on you.) But current responses, especially in light of burgeoning access to vaccination, reveal that the attitude goes beyond distrust in government. (Tragically, such distrust gives rise to increased—but displaced—trust in the private sector, exacerbating the “charitable-industrial complex” noted above.) In the course of the past year (can you believe it), Americans have proven themselves unwilling to follow COVID-related directives issued by the government, each other, and, most recently, employers. (Adding controversy, government and employer can be one and the same, as is true for the teachers and police officers who would be subject to compulsory vaccination if a Massachusetts gubernatorial candidate has his way.) No matter by whom, Americans don’t like being told what to do.
This is not to say that Americans are unique either in their preference against taking orders, or in their hesitant adoption of mask mandates. Lines have been drawn broadly between “Eastern” and “Western” countries in terms of their respective openness to wearing masks. In the Northern European countries Denmark, Norway, Sweden, and Finland, fewer than 10 percent of people wore masks initially after a mandate was issued; a German “epidemiologist and legislator” cited a “culture of optimizing appearance” as a barrier to widespread mask adoption in Germany. And anti-burka face-covering bans instituted in Europe, beginning in France, have posed challenges to widespread acceptance of mask-wearing in additional European countries.
But the particular strain of resistance that has been on view in the United States is consistent with other uniquely American idiosyncrasies that present themselves foremost in two particular areas of American law: government regulation and omissions liability.
I. American Aversion to Regulation
In regulating something so intimate as to the cloth that covers your body, perhaps the mask regulation to some represents an particularly threatening form of government interference, especially against a backdrop of general distaste for government interference. This may be why anti-mask protestors found their appropriation of the pro-choice “my body, my choice” slogan so clever. (Men—and White men in particular—were the demographic most uncomfortable with wearing a mask, leading Scientific American to declare masks “condoms of the face” in a further discussion of masculinity as a barrier to public health solutions.)
But the transition from government-imposed mask mandates to vaccination—made mandatory by some employers as a condition of employment—underscores that our aversion to imperatives goes beyond aversion to government interference. It is, in fact, the power of the state (or at least twenty-seven of them) that is being sought to prohibit private employers from requiring their employees to be vaccinated. The likely overlap between the majority of Americans not in favor of the government regulating business and those in favor of government restrictions on mandatory vaccination for employment underscores the rhetorical inconsistency. And the basis of at-will employment policies that allow for such conditions of employment as vaccination in a Lochner-esque hands-off attitude toward government regulation makes the irony all the more clear. Cast as a choice between government regulation of business or not, we don’t want regulation. Reframed as a choice between business regulation of us or not, we call on the state to intervene. What is consistent between these examples is not an aversion to interference by government—it is an aversion to interference, full-stop.
Perhaps it is distaste for government regulation that brings policymaking and litigation together in the distinctively American concept of private attorneys general. Laws that incentivize plaintiff-side litigation in important practice areas like civil rights, labor, and environmental law arguably take the place of key regulatory and enforcement mechanisms for which the government might otherwise be responsible. And private attorneys general have gone to work challenging requirements to wear masks, take COVID tests, and now to vaccinate against COVID-19. Jacobson v. Commonwealth of Massachusetts, a 1905 case about state-mandated smallpox vaccination, both upheld Massachusetts’s requirement that public school children receive the vaccination and has been cited as authority for the proposition that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Jacobson has been cited over 200 times in the past year in COVID-related disputes.
But enforcing rights through litigation is a burden-shifting scheme that (usually) places the burden of enforcing rights ex post on the potential rights-violatee, rather than hold the potential rights-violator answerable to the government ex ante through regulation. This makes rights enforcement into a question of who has the resources and the will to fight for them. Means and will should not determine whose rights are protected. And nor should drawing an often arbitrary distinction between action and inaction that can prove determinative.
II. Refusal to Prescribe and American Omissions Liability
Our unwillingness to accept an externally-imposed obligation to act manifests as a matter of law as well in omissions liability doctrine. Omissions liability—liability not for acting, but for failing to do so—presents itself in both criminal and tort law. The Model Penal Code leaves open the possibility for a statutorily imposed crime of omission or duty of care, but the general rule defaults against “liability…based on omission.” “Good Samaritan” laws vary state-to-state, and do not always cover individual private citizens even acting in the course of an emergency. Even so, these laws typically are framed as protections against liability for the person who helps, rather than requiring a person to help. (As of 2017, only six states imposed a duty to act.) The general absence of a “duty to act” reflects our country’s social values, not an objective, fixed attribute of either criminal or tort law. Americans simply cannot tolerate being told what to do.
Such antipathy gives rise to important strategic consequences for both policymaking and litigation. Much of this comes down to characterization. Tort law’s “duty” framing prefers a characterization of a driver as an actor who therefore had a duty of care with which to comply, rather than characterization of braking as an act for which the driver is affirmatively responsible. Litigation, as well, prefers regulating existing activity rather than affirmatively mandating conduct. Courts have an easier time issuing a “negative” injunction—telling a defendant to stop doing something—than ordering a “positive” injunction demanding the defendant act.
But “conduct” and the absence thereof can differ in the eye of the beholder. The Supreme Court’s fractured holding in National Federation of Independent Business v. Sebelius neatly sidestepped the government’s Commerce Clause argument by characterizing the Affordable Care Act’s individual mandate as regulating “inactivity,” thereby removing it from the ambit of “activities” that the Commerce Clause grants Congress authority to regulate. Given that 99.5 percent of adults above age sixty-five have utilized health care, as Justice Ginsburg pointed out in a partial concurrence, was this the correct framing? Or does the majority’s effort go too far to avoid telling Americans what to do—to avoid punishing Americans for what they’re not doing by refusing to acknowledge when almost every American is, in fact, “acting”?
In fixating on the distinction between activity and inactivity, both omissions liability doctrine and regulation in their current forms lose sight of an important concept: that doing something for someone else does not have to be viewed as a concession. Reporting early into the adoption of masks across the world found that people in Japan—where social conformity is more valued and individual freedom less so than in the United States—were more likely to wear masks to fit in. And in China, wearing masks for common courtesy had long been routine. Rather than continuing to indulge Americans’ hostile attitude towards being told what to do, the law could reframe the issue in terms of an equally original tenet of American ethos: the act of helping another confers a benefit on you. So let’s be clear: I’m not wearing this mask because I like it. But if putting something on my face helps keep you safe, I’m happy to do it. God help you if you try to tell me what to do. But this? It’s a gift.
J. Mia Tsui: Senior Supervising Editor, California Law Review, Vol. 109, and Berkeley Law Class of 2021.
