Oregon has been governed in significant measure by press conference for nearly two years. Early in the pandemic, Kate Brown, the state’s term-limited democratic governor, would appear weekly, flanked by public health officials, to let Oregonians know whether they’d be allowed to gather with friends and family, attend school and worship services, travel, dine in restaurants, get surgery or open their small businesses. It was during one such press conference that Oregonians learned whether the governor deemed their work of sufficient import that they would be allowed to continue to do it outside their homes.
These days, with Brown the least popular governor in the country and increasingly ceding the political foreground to a battle royal among the large number of people who want to replace her come January 2023, she rarely partakes in the press conferences. Instead, she spends time traveling to climate change conferences, brainstorming the role of food waste in said change, and collecting awards, unmasked, at DC galas. Oregon, home of the Ducks, has as its governor the lamest of ducks.
Yet the government by press conference continues apace in Brown’s absence because she continues reliably to provide that regime’s predicate, of which she is singularly legally capable: serial declarations of a Covid public health emergency. She issued the most recent such order on December 21, 2021; it does not expire until June 30, 2022. If the order is not earlier rescinded or extended again, Oregonians will at its termination have lived under 844 days of emergency governance, of government by press conference.
Officials of the unfortunately named Oregon Health Authority (“Administration” and “Agency” were both available, folks) held one such press conference last Thursday. During that press conference, OHA officials described the effect of the Omicron surge in the state. State epidemiologist Dr. Dean Sidelinger solemnly observed, “This is a tragic time for Oregon.” It is, but not only in the way Dr. Sidelinger meant.
He addressed questions about Oregon Health Authority’s proposed rule implementing a permanent, as opposed to an emergency, indoor mask mandate. That rule had received a predominantly negative response in the recent public hearings held by OHA. The proposed permanent rule, which would replace an emergency rule with similar requirements but that expires on a date certain, provides,
The requirements in this rule remain in effect unless the State Public Health Director or State Public Health Officer issues an order stating that some or all requirements in this rule are no longer necessary to control COVID-19.
Dr. Sidelinger is the State Public Health Officer and reports to the State Public Health Director. So, the question of when he would deem the requirements in the rule “no longer necessary to control COVID-19” is quite pertinent. Oregon Public Broadcasting summarized his thoughts:
Sidelinger said there is no target date or data point for the state to lift the mask mandate. He said it will remain in place until hospitals, operating with staffing shortages and contingency standards, are able to resume more normal operations.
Factors the state will consider before lifting the mandate include the number of hospitalized people with COVID-19, the capacity for hospitals to provide care — including specialized care — and having a more reliable supply of antiviral medications to treat COVID-19.
In other words, the rule will no longer be necessary when OHA, in its discretion, determines it is no longer necessary. Which raises the difficult question of what “necessary to control COVID-19” even means. Is the disease controlled only if we have zero cases? Zero hospitalizations? Some cases and hospitalizations? What does it mean for hospitals to “resume more normal operations?”
And to what degree is an indoor mask mandate “necessary” to achieve the desired “control,” whatever that might be? Can we achieve “control” without such a mandate, and if so then is it really “necessary?” Forty-one states apparently believe such a mandate is unnecessary to achieve their goals.
Defining terms like “control” and “necessary” require consideration of tradeoffs and values - do we value personal autonomy or zero Covid cases more highly - that is inherently subjective. There is no amount of public health, medical or any other kind of expertise that can give us the “right” answer. In fact, there is no “right” answer. And Dr. Sidelinger is no better equipped to answer it than you or I, or the Republican in Burns who hates the mandate or the Democrat in Northwest Portland who wants the outdoor mask mandate back for good measure.
Governing a big, diverse state like Oregon is all about making subjective decisions like this. And in the absence of a “right” answer, we focus on trying to ensure that at least the right people make those decisions. Because people in different parts of the state often have different views of questions like this, we believe it is important to have geographically diverse participation in the decision-making process. And we believe voters ought to be able to influence the outcome of the decisions, if not directly, then through electing, or un-electing, representatives.
It turns out we have an institution in place that mirrors these needs: the legislature. We have a legislature - elected by voters from distinct geographic areas around the state - to answer precisely questions like when the state should stop being forcing people within its borders to wear masks. By failing to address this issue - by leaving it to unelected public health officials appointed by an unpopular lame duck governor - legislators are failing their constituents and their constitutional obligations.
Legislators have the opportunity to reverse their pattern of neglect. They meet beginning next week for their truncated even-year session. Their first order of business, or second after dealing with pressing budgetary matters, should be legislation to codify the mask mandate, or not, and to determine when and how it will end. Committees can hold hearings with witnesses from the hospital industry, the public health community, the business community and others to help legislators develop what they think “control” means, and what they think “necessary” means. This is what legislatures do. Or, at least, what they, uniquely, are supposed to do.
Yes, the process would be a giant mess. The mask debate would probably disrupt most everything else legislators want to do during the short session. But it would do so because it is an issue that Oregonians on both sides of the issue feel very strongly about. Which is precisely why it must be determined by the legislature.
The outcome of the process could be a mask mandate that ends only when the legislature rescinds it. Or, it could be no mask mandate at all. It could be something in between, a more limited mandate that identifies metrics (available hospital beds, Covid hospitalizations, etc.) the achievement of which would lead to its termination. Perhaps most likely, the legislature would be unable to act, leaving legislators’ work to Dr. Sidelinger. But that decision, and the decisions of 90 legislators that led to it, would be meaningful.
The decision not to act is a decision too, and one the legislature has made repeatedly throughout the pandemic. But, most often, the decision has been made by omission, by simply not voting on big questions legislators know the executive branch will make in their stead. Better for the legislature to vote on the mandate and its end. At least then Oregonians might be reminded they have a legislature - empowered to express the sovereignty of voters on fundamental and difficult issues - at all.
End the legislative neglect
Awesome, You have my vote! The powers at be need to work for the people not sit on the fence as they did with the butter bill HB26-12 last session.
FYI, I had sent a letter to my Representative and Senator for our County (Umatilla) early in January. I was aware of where OHA was wanting to go regarding masks and wanted to follow what normally would be the proper route to take to voice displeasure with where they wanted to go. To date, I have not received a reply from either. Did I mention they are both supposedly Republicans, especially around election time? These open-ended mandates are so anti-American, just like our government for the State of Oregon.