Perhaps the most surprising thing about the pending court battle between Georgia Governor Brian Kemp and Atlanta Mayor Keisha Lance Bottoms is that it took this long for a lawsuit like this to reach the courts during the ongoing novel coronavirus pandemic. The situation began to approach the boiling point when Kemp issued an executive order stating that no county, municipal or local governments would be allowed to mandate the use of face masks or other personal protective equipment or impose penalties on citizens who are not in compliance. For her part, Mayor Lance Bottoms had resisted the urge to issue such an order until she and her husband contracted the virus themselves. Then she had a change of heart, defying the Governor’s order. That brings us to last night when the Governor and the Attorney General announced that they would be taking the Mayor to court to prevent her from enforcing the face mask order. (Associated Press)

Georgia Gov. Brian Kemp is suing Atlanta’s mayor and city council to block the city from enforcing its mandate to wear a mask in public and other rules related to the COVID-19 pandemic.

Kemp and Georgia Attorney General Chris Carr, in a suit filed in state court late Thursday in Atlanta, argue that Atlanta Mayor Keisha Lance Bottoms has overstepped her authority and must obey Kemp’s executive orders under state law.

“Governor Kemp must be allowed, as the chief executive of this state, to manage the public health emergency without Mayor Bottoms issuing void and unenforceable orders which only serve to confuse the public,” the lawsuit states.

Kemp on Wednesday clarified his executive orders to expressly block Atlanta and at least 14 other local governments across the state from requiring people to wear face coverings.

As of this morning, Lance Bottoms is still remaining defiant. She almost immediately issued a statement saying, “If being sued by the state is what it takes to save lives in Atlanta, then we will see them in court.”

As to the validity of the Governor’s order and the grounds for his objections, neither is entirely clear. He and the DA claim that his order is enforceable on all local and municipal officials under state law, but the specific provisions providing for such an order weren’t provided. His objection to the Atlanta face mask rule, according to the lawsuit, is that it’s “void and unenforceable” and may serve to “confuse the public.” Of course, since we’re talking about an executive order issued during a declared state of emergency, he generally doesn’t have to provide much of a reason to begin with.

This showdown could (and very likely will) be mirrored in pretty much any state where the Governor’s office is held by the opposite party as the mayorship in some of their cities. Texas comes to mind immediately, but there are plenty of other examples.

So the question before us is which level of government is superior? Keep in mind that these are all extraordinary orders that have not been enacted into law by any legislature. Individual executives are issuing these orders entirely on their own. If the Governor can issue an executive order that overrides the authority of a mayor or county executive, can the President issue orders that overrule the decisions of the governors?

The Supremacy Clause in Article VI of the Constitution is frequently invoked in such cases. It tells us that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the “supreme Law of the Land”, and take priority over any conflicting state laws. Similar clauses can be found in most state constitutions, establishing the power of the state government. But in this case, we’re not talking about any “laws” here. As noted above, no legislative body has considered and approved either Keisha Lance Bottoms’ face mask order or the Governor’s mandate against any such rules. So does any version of the Supremacy Clause actually apply here?

This could be a very interesting question for the courts to take up, though the question has been raised before with mixed results. We generally think of executive orders in terms of Presidents, but Governors hold many similar, sweeping powers during a state of emergency. The courts have generally held that such orders are allowable and carry the force of law, but only if they are in keeping with the federal or state constitution in question. Would Governor Kemp’s order pass muster in that regard? We may find out from the state supreme court in short order.