Attorney General: Holcomb has no authority to enforce statewide mask mandate

Attorney General Curtis Hill, Republican, left, and Gov. Eric Holcomb, Republican

Gov. Eric Holcomb lacks the authority to enforce the statewide mask mandate he announced on Wednesday and should call a special session if he wants to implement the requirement, Indiana Attorney General Curtis Hill said late Wednesday.

Hill, a Republican, issued an advisory opinion saying that state law doesn’t give the governor specific authority to require face coverings or to create penalties for failing to wear a mask.

“Without properly delegated authority from the General Assembly, the proposed order would not have the force and effect of law,” Hill wrote in the advisory opinion, which was requested by five state senators, all Republicans. “The General Assembly would need to specifically and clearly allow for a mask mandate by law.”

Holcomb, also a Republican, announced on Wednesday afternoon that he would issue an executive order—effective Monday—requiring masks for anyone who is 8 years and older in indoor public places commercial entitles, transportation services, or in outside public spaces when social distancing isn’t possible.

He said the order would require students in grades 3 and up to wear masks in school.

The governor said exceptions will be made for medical purposes, strenuous physical activity, eating and drinking.

Holcomb said there won’t be any “mask police,” but violations will be considered a Class B misdemeanor, which can result in up to 180 days in jail and a fine of up to $1,000.

Hill said in his advisory opinion that “the governor has taken conduct that has not been specifically criminalized by the General Assembly and unilaterally declared it as criminal.” And he said lawmakers have not given Holcomb the authority to create a crime.

The opinion says that the Indiana Constitution limits the legislative branch’s ability to transfer its lawmaking powers to administrative agencies in the executive branch.

Holcomb’s office did not immediately respond to a request for comment about Hill’s opinion.

Sens. Jim Buck of Kokomo, Blake Doriot of Syracuse, Aaron Freeman of Indianapolis, Mark Messmer of Jasper and Jim Tomes of Evansville asked Hill to weigh in with an “official opinion” regarding Holcomb’s authority to order a mask mandate and make it a criminal offense not to wear a mask.

Hill’s opinion is labeled an “official opinion,” however it is considered only advisory and does not carry the weight of a court ruling. The attorney general said in the opinion that he encourages the use of masks but said “individual rights secured by the Constitution do not disappear during a public health crisis.”

Holcomb has issued a series of executive orders under the state’s Emergency Management and Disaster Law in response to the pandemic, including one that declared a public health emergency in Indiana. He has renewed that order four times, with the most recent order set to expire on Aug. 3.

The Emergency Management and Disaster Law gives the governor broad powers once he has declared an emergency. Among the provisions, the governor is permitted to “use all available resources of the state government and of each political subdivision of the state reasonably necessary to cope with the disaster emergency.” In addition, the law says the governor can “take any action and give any direction to state and local law enforcement officers and agencies as may be reasonable and necessary for securing compliance” with the emergency law.

The governor said Wednesday that an escalation in the number of COVID-19 cases in Indiana led to his decision to require masks.

But Hill said in his opinion that as Indiana has moved out of the early stages of the pandemic and there is “less of a sense of immediate emergency,” the governor should be acting with support of the General Assembly.

“As the representatives of the people, the General Assembly should have a say in the regulation of behavior and whether there is a criminal element to violating an order issued by the governor,” the opinion said.

Hill wrote that Holcomb has left lawmakers “on the sidelines” during what he said is “perhaps the most significant event of the century.”

Democrats in Indiana have already called for a special session.

The Senate Democratic Caucus, House Democratic Caucus and Indiana Black Legislative Caucus announced Tuesday during a press conference that they want lawmakers to come back to Indianapolis in August to address criminal justice reform, absentee voting and oversight of how the state is spending federal funding.

House Speaker Todd Huston said then that he did not see a need for a special session, but he said “important and productive conversations on these topics are ongoing.” That comment came before Holcomb’s announcement about a mask mandate.

Hill is in the last year of his term. He intended to seek reelection but did not receive the Republican Party’s nomination last month following accusations that he drunkenly groped a state lawmaker and three other women during March 2018 party marking the end of that year’s legislative session. A special prosecutor declined to bring charges against him.

Holcomb called for Hill to resign after the accusations and did not support Hill’s effort to win the GOP nomination.

Please enable JavaScript to view this content.

Editor's note: You can comment on IBJ stories by signing in to your IBJ account. If you have not registered, please sign up for a free account now. Please note our updated comment policy that will govern how comments are moderated.

56 thoughts on “Attorney General: Holcomb has no authority to enforce statewide mask mandate

  1. Just wear a mask. Pretty simple task to keep the community safer. Yes, there are situations for certain people, but that’s the exception. It’s not political, it’s not taking away rights or liberties, it’s a simple task to better our community.

  2. Good on the AG for independent thought.

    Like I said earlier:

    It’s just a mask? It’s just a vaccine?

    In 4 months, the U.S. transformed into an obedient socialist country. Government dictated what events are acceptable to attend. Violent protests that instill fear are OK but church services, family funerals and patriotic celebrations are dangerous. And you bought it without a fight.

    Standing in a graduation line is a “safety hazard”. Small businesses were forced to close but crowds to support the corporate money machine at WalMart, Lowes and Home Depot are OK.

    Come on. It’s “just a mask” & “safety precautions”.

    How about a little hush money. Here’s $2,400 that we stole out of your pay check in the first place. Enjoy. Buy something with it. From a big corporation.

    Cash is dirty. We can’t give change. There’s a coin shortage. Use your card. In 4 months, they convinced you to use a traceable card for everything.

    In less than 4 months, government closed public schools then “restructured” education under the guise of “public safety”. In less than 4 months, our government demonstrated how easily people assimilate to “guidelines” that have NO scientific premise whatsoever when you are fearful.

    In less than 4 months, our government successfully instilled fear in a majority of the population in America that allows them to control every aspect of your life. Including what you eat, where you go, who you see and your toilet paper.

    And the most dangerous and terrifying part? People are not afraid of the government who removed their freedom. They’re afraid of their neighbors, family and friends.

    And they hate those who won’t comply.

    It’s absolutely terrifying to me that so many people don’t question “authority”. They are willing to surrender their critical thinking skills and independence. They just… gave up without thinking. Without a fight.

    Do you know what’s coming next?
    “It’s just a vaccine. Come on. It’s for the greater good”.

    Wait until you’re told that you can’t enter any store or business without proof of the Covid-19 vaccine. Wait until you can’t go to public events or get on a plane without proof of receiving the vaccine.

    To everyone that doesn’t believe this is possible – DO YOU UNDERSTAND that government successfully dictated to people WHEN they were allowed to be outside, where they were allowed to go, and how their children would be educated in less than 4 months? And that a majority of the population followed blindly because they were told to do so.

    You’re kidding yourself if you think this behavior won’t be repeated with a vaccine. Or whatever the next step is.

    “I don’t follow politics.”
    “Who cares about that stuff?”
    “I don’t like to think about it.”

    They got you. Without a thought. Without a fight. Just like France. Just like Russia. Just like China. Welcome, comrade.

    1. You must know anyone who has died from this pandemic, has been sick from this virus forcing them to learn how to walk again, had business effected way before the US caught wind when China was shut down and not able to ship to US ports. With such strong ignorant feelings, I’m surprised you are reading the IBJ.

      FYI – Hills credibility is null and void with his indiscretions towards women.

    2. Finally a critical thinker… not a sheep being led to the slaughter called Authoritarian Government over subjects…we are citizens and will not follow blindly….we will no comply…thank you!!

    3. Spot on! Lulling “We The People” into compliant obedient sheep soon to be oppressed sheep under a shredded trampled nonexistent Constitution!

    4. Funny, I saw that exact long comment word for word on someone’s FB page a week ago…at least say “copied and posted.”

    5. Meanwhile, unmarked federal agents are grabbing people off the streets of Portland and whisking them away with no probable cause. But, go on about the masks.

    6. JCB, just because some people do not have the same view as you, and those who think like you on this particular subject, does NOT mean we are blindly following without questioning authority. Did it ever once occur to you that others can have a differing opinion on the mask requirement from yours and still think objectively on various aspects of what this pandemic is doing on various fronts? It’s not all or nothing. It’s not a “slippery slope” of perceived reduced freedoms in regards to masks. It’s a scientific fact, pure and simple. Sure, there have been mistakes made due to he speed at which decisions needed to be made but let’s give those who we elected to lead some grace as they try to do the best they can to keep us protected and keep the economy afloat. It would be disastrous to start shutting things down again ( in hindsight likely a mistake to begin with), so let’s do something very simple and not intrusive, wear your mask!

  3. Great to hear from the rightful Attorney General. Run for office and let the public vote for you, AG Hill. I am disgusted with our party’s treatment of you. I will not be voting for AG In Nov. and will leave this blank. I wonder what Curtis Hill’s next political position will be in the GOP. He must persevere and reemerge stronger than ever.

    1. Eric Holcomb isn’t going to lose. I mean, Trump still leads in Indiana and he’s the worst president ever elected.

      There’s far too many people who will just vote straight ticket Republican because “all Democrats are socialist tools of Nancy Pelosi” and that’s what they believe because that’s what Facebook or Fox News told them.

      Most people can’t even name the Democratic candidate (Dr. Woodrow Myers), and, by the way, he doesn’t have any money to campaign.

    2. Sorry Joe B, you are correct. I couldn’t remember if it was completed and didn’t want to assume guilty unless proven.

  4. I was surprised that this article did not mention that Holcomb had previously called for the AG’s resignation and that Hill did not receive the Republican Party’s nomination for reelection. As my dearly departed grandmother would say, “Consider the source.”

    1. I bet your dearly departed grandmother would have bothered to read the Last two paragraphs of the article:

      “ Hill is in the last year of his term. He intended to seek reelection but did not receive the Republican Party’s nomination last month following accusations…

      Holcomb called for Hill to resign after the accusations and did not support Hill’s effort to win the nomination. “

      She would not be proud of someone who just looked for an excuse to ignore what they don’t want to believe.

  5. We need the government to protect us from a virus so terrible it takes multiple test to determine if you have it. And if it took three tests to confirm you had Covid, then that counts as three new cases. If you did have Covid-19, but recovered from it, but then died due to something else, then that counts as a Covid death anyways.
    If you are scared, stay home, but don’t watch the news because you will never leave home again.

    1. Get an N-95 mask. It’s much easier to breathe in.

      And, to protect yourself, don’t go to places where others do not wear masks. You are likely high risk fo severe illness if you get the virus.

  6. mask haters – do unto others as they should do unto you

    My 62 year old diabetic brother just died…

    Trump said wear a mask (finally) it really is no big deal..

    Let’s Protect the old,disabled, infirmed and sick

    Let’s come together

    We are all Hoosiers 👍👍👍

  7. Just remember the reason politicians like Eric Holcomb are so inept is because they have zero real life experience. He has NEVER had a real job in his life. He went from the Navy into politics and is a creature of the political swamp. If (and I don’t agree with mandatory masks) that was the solution to the problem why was it not instituted at the beginning of the Covid fiasco. Why did he wait 120 days. When you are not a leader you might as well try to control people. The answer is that this guy is totally clueless and I am a life long conservative card carrying Republican. He got in by mistake.

    1. Yes, let’s elect more people who have no idea how politics works. That’s worked so well.

      The reason we didn’t do mandatory masking is because so much of the Republican base has been fed total nonsense when it comes to scientific knowledge. Trying to implement a scientifically suggested solution doesn’t fly with the base. So we try half-arsed solutions until there’s no other choice.

      Because if you listen to science on COVID, you might listen to science on climate change or vaccines. And that would threaten a lot of Republican donors/advertisers who sow FUD on those topics that a lot of people buy into. They need you to think science is “evil” or “in question” on those topics when it’s really not.

  8. Probably nobody on here has actually read Hill’s opinion and studied the relevant law, yet people are expressing strong opinions on how right or wrong the AG’s opinion is. That speaks volumes about how poisoned the political environment is.

  9. All great men and good thought, though some of it seems personally elevating, not in the Hoosier community’s best interest. This is an emergency. Gov Holcomb is the leader, consistently doing what’s right for people. That law Hill quotes is subjective and there is no time to debate it.

    Masks are annoying, uncomfortable and unsightly. Take it from an old retired rancher, wear a damp bandana instead for max comfort. Follow the leader. The bad times are just beginning.

  10. Case in point of the real reason Swamp Puppet Holcomb has disdain for Hill.

    By virtue and oath of office in all honesty and integrity, Hill has to speak up to protect us from the likes of Holcomb!

    Thank you Atty.Gen Hill!

    Curtis Hill For Governor 2024!!!

    1. Right on, Darrell W.

      Go get ’em, Curtis; the Republican swamp-dwellers who ran you out deserve it.

    2. I would vote for Curtis Hill. Now, I will not vote for either candidate and will leave my ballot blank.

  11. I wonder how many people would obediently practice hiding under school desks if told it would stop the virus, as government claimed would stop deaths in atomic bomb attacks? The total state deaths show we will not have a decrease in population, no savings for SSN, no new life expectancy tables. Some say Pandemic, some say Hoax virus. Extending lives relative to life enjoyments needs to be measured. All the early precautions that continue today didn’t slow deaths in the nursing homes. Virus, like atomic bombs, are not easy to stop or slow. Wasting time with these measures cuts freedoms, does not stop viruses. All measures like Holcomb has just ordered (120 days in and copying others make believe measures) are made to give the leadership illusion. The illusion clearly works.

    1. How did this crisis go from “we must flatten the curve” to the current “OMG, no one must ever get sick from anything again”????

  12. I appreciate each individual opinion about mask wearing and each person doing what is best for them, you do you. I would also like to repeat Hill’s statement, SHOUTING it from the rooftops “INDIVIDUAL RIGHTS SECURED BY THE CONSTITUTION DO NOT DISAPPEAR DURING A PUBLIC HEALTH CRISIS”!!!!!

  13. Rather than put my own comments here:

    Colorado Gov. Jared Polis said Sunday that more people wearing masks would allow for other aspects of normal life to resume during the coronavirus pandemic.

    “I think what’s important for people to know is this is not ideological, it’s not partisan, it’s science-based,” Polis said on ABC’s “This Week,” saying masks are “a ticket to more freedom.”

    “It makes it less likely that businesses will be shuttered. It makes it less likely that people will die. It makes it more likely school will return. If we care about those things, you’re going to take that as a matter of personal responsibility to protect yourself, protect others, protect our economy,” he added.

    1. Cusrtis Hill Jr. is not a clown; he is a fine man who was railroaded off the ballot by the state’s Republican swamp-dwellers. He was not disbarred; his license was suspended for 30 days; a slap on the wrist to placate those who would have his head.

      Hopefully, he’ll take a page from Vice President Pence’s playbook and not go to after-hours parties with women, especially black Democrat women from the region who would like nothing better than to bring him down…at which they partially succeeded, it would appear.

      But I heartily agree with the last two sentences of your post, John. ‘Couldn’t agree more!

  14. This is for all the idiotic anti-maskers: “Dr. Deborah Birx, a leader of the White House Coronavirus Task Force, warned state and local leaders in a private phone call Wednesday that 11 major cities are seeing increases in the percentage of tests coming back positive for COVID-19 and should take “aggressive” steps to mitigate their outbreaks. The cities she identified were Baltimore, Cleveland, Columbus, Indianapolis, Las Vegas, Miami, Minneapolis, Nashville, New Orleans, Pittsburgh and St. Louis.” Hmmmmm, now what kind of agressive steps could we take? Wear a f-ing mask?!?!? Or maybe you’d be happier if everthing shut down again.

    1. You don’t suppose the outbreaks in those cities had anything to do with the rioters being allowed to congregate to, well, riot, do you?

  15. If people are so upset about having to wear masks why aren’t they protesting smoking bans? The same argument can be made that people should be allowed to smoke cigarettes whenever and wherever they want. If my smoking is dangerous to ME that’s not YOUR problem and if it’s dangerous to YOU that’s not MY problem. You don’t believe all the science (hoax) that says smoking and second hand smoke is dangerous to personal and public health, do you?? Also, why do I have to pull my kid out of school when they have strep throat? It’s unfair to disadvantage MY child’s education because some people think it might spread to others. If you are concerned about YOUR kids getting strep than take them out of school. There are so many more examples of restrictions being put on individuals for the greater good of the community it’s ridiculous this is even a subject of debate. In your minds, It’s your world and the rest of us are just living in it.

    1. Amen, Greg S. I feel like I am reaching the end of my willingness to argue with the interminably ignorant.

    2. Greg S. You are so right. Some of these comments that are referring to “Individual Rights” and all the paranoia about following science and wearing a mask. It really shows the complete ignorance of some Hoosiers. Thanks for making your excellent point. At this point, I’m exhausted with arguing with stupid people who, for lack of anything else, feel Gina S. does that they are convinced that “individual rights secured by the Constitution do not disappear during a public health crisis.” Hey Gina….go exercise your First Amendment right and go get on an airplane and yell, “BOMB”. Please…will you do that? Then you could lose all of your rights as they send you to the Big House! Just remember folks, any true patriot, any true American knows that ever right we are blessed to have comes with responsibilities. Grow up….WEAR A MASK and quit whining like children.

  16. If the Governor can mandate you wear a mask under penalty of law that does not exist, what is that the Governor can’t mandate?

    If you fear those that don’t wear a mask, then quarantining at home. Win-Win..

    If C-19 is a contagious and deadly as it is being made out to be. Where are the “BIO HAZARD” containers for the used masks and gloves?

    And can the government mandate you to purchase goods or services they are not providing?

    You may disparage Curtis Hills character and rightfully so, but he still is the lead attorney for “We the People” and should be looking out for our rights until he is not in office.

    1. It’s easy: if you don’t want to wear a mask, stay home. There’s almost no place left that will let you in without one…or have you missed all those “mask required” signs on the doors at Kroger, Target, Meijer, Walmart, Menards, and office buildings and restaurants?

  17. Most of these posts are missing the point of the order. If his order is wrong at least its on the side of caution.

    So much political rhetoric at the cost of lives. Its all greed at the hands of power seeking Locals, nationals and Internationals. Is this the way we would argue if we had a planetary invasion? That’s exactly what this is.

    If it were for power, Holcomb could chase many more powerful targets. People are dying!!! Do you need a loved one to die or 1,000 deaths a month in Indiana before you unify against the monster, COVID?

    As a country, we are now leading the pack for the most reported cases and deaths. Yes proportionately the percentages may be less but we are suppose to be the smartest on the planet. We are not acting that way.

{{ articles_remaining }}
Free {{ article_text }} Remaining
{{ articles_remaining }}
Free {{ article_text }} Remaining Article limit resets in {{ count_down }} days.