07/06/2020
Because I have seen many people question the legality of the mask order—feeling that perhaps their rights are being violated—I think it may be helpful to see a bit of the legal basis for such a mandate. I have seen other attorneys write similar posts, but let me add my voice to theirs. This is strictly a legal analysis and not my personal opinion...
The mandate is legal and let me briefly explain why. RCW 43.06.210 gives the governor the power to declare a state of emergency. RCW 43.06.220 outlines those things the governor can then implement or prohibit by virtue of that order. Probably the most pertinent language here is 43.06.220(1)(h)-"Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace."
The Secretary of Health has the power to carry out those orders per RCW 43.70.130. You can see that violation of the orders come with penalties per RCW 70.05.120. WAC 246-100-070 provides for the mandatory enforcement of such orders. Therefore, you can be penalized for violating the order.
It is important to note that the authority of the governor to declare a state of emergency with its accompanying powers has been on the books for decades. While I can’t speak for every state my guess would be that all of them have similar powers. I should also probably remind folks that governors (and the president) do not write the laws—legislatures do. Therefore, the legislature of the state would have to repeal this law.
To summarize, the governor is utilizing the powers given him via a law passed by the legislature of this state decades ago. It does not violate your constitutional rights. You may not like it, but it is not a violation of your rights. (If a suit was brought concerning these powers a court could find it to be a violation, but that has not happened to date. See Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health—this is still good law) I hope this provides a little context for how we find ourselves subject to these types of orders.