Vaccine and mask mandates are gradually being wound down in many parts of the U.S. including here in Massachusetts, as an increased vaccination rate and the gradual reduction in the severity of the Omicron wave take hold. But who actually had the authority to issue mandates like the ones we have experienced during the pandemic? For that matter, when it comes to laws of any kind, which administration has more power than any other to make and enforce them?
Who makes the law in Massachusetts?
Several levels of government have the authority to make and enforce laws across the state. In many cases, each level is responsible for different laws, but in some cases, there is an overlap and when there is an inconsistency between laws, then there must be a hierarchy which determines which jurisdiction has precedence.
In Massachusetts, like all other states across the country, laws are made by the federal government at the highest level, while state, county, town and city laws make up the balance. The 10th Amendment to the U.S. constitution allows states to make and enforce their own laws, which on the whole tend to address affairs that are not addressed by federal law.
The relationship between federal and state laws is not straightforward
The relationship between federal and state laws when there is a discrepancy between them is not necessarily uniform. For example, minimum wage laws are made by both the state and federal governments. Each state sets its own minimum wage, but which minimum wage must be paid (federal or state) depends on which is the higher of the two – state or federal. In Massachusetts, for example, the minimum wage set on Jan 1st this year is $14.25 an hour, while the federal minimum is $7.25 an hour. The Massachusetts minimum is what has to be paid in this case because it is the higher of the two. Seven U.S. states have not set a minimum wage at all (e.g. Alabama), so the federal minimum takes precedence.
In some cases, where both state and federal laws are similar, such as anti discrimination legislation, the state agency responsible for investigating and enforcing legislation (the Commission of Discrimination) and the federal equivalent, the E.E.O.C. , have work share agreements. This means that victims of discrimination in the workplace may use either level of legislation to file a complaint, although the federal agency only investigates breaches of its anti discrimination laws in workplaces of 15 or more employees, so a worker in a smaller workplace would turn to the state agency instead.
In criminal law, a person who has been accused of a crime under the Massachusetts criminal code, may also face prosecution for a crime under federal law, although there are federal crimes which have no state equivalents. Most federal crimes involve acts that affect national interest or federal officials or government bodies, e.g. acts of terrorism against the country or federal tax or Medicaid fraud. Crimes of this nature are exclusively the preserve of federal law.
State and local laws compared
States are given the authority to create and enforce laws that affect much of the lives of the residents of that state, with the exception of anything of national importance as has already been mentioned. Examples of state jurisdiction include:
- state criminal and court systems;
- collection of state taxes;
- family and probate law e.g. divorce, child custody and support;
- deed registration;
- property ownership;
- social aid and welfare programs;
- emergency services e.g. police and fire service;
- regulation of industry;
- state highways and road maintenance;
- establishment of local governments.
Municipalities, such as villages, towns and cities, can make their own laws when there are specific good reasons for doing so. Usually, these are made because the conditions in that municipality are somewhat different from another municipality or because the local council has decided to create a law to deal with a specific issue pertinent to that locality. Zoning laws are typically decided by municipalities, for example.
Municipalities may also have the right to raise their own taxes to help run their own administrative tasks or services, pay for libraries, lighting, parks and garbage removal. Local courts may hear certain matters of dispute such as personal injury or family law cases. School districts are another layer of administration that might come under a municipality and determine the rules that govern the way schools are run. Special districts may make rules about specific services or infrastructure and are generally autonomous from state or local control. A special district may be shared between more than one state, such as the running of a power utility or regional transportation.
Counties are another layer of government which sits between state governments and municipalities. In some more sparsely populated parts of the state, residents may be more affected by county legislation than that of any municipality.
Which laws have precedence when there is a conflict?
Generally, when there is a conflict of interest between a state law and a local law, the state law takes precedence. This isn’t completely uniform, however, as the example of mask and vaccine mandates illustrates. Some municipalities and school districts have decided, for instance, to keep some mask mandates even though they have been relaxed in most cases by the state government. The situation is somewhat complicated by the existence of a combination of mandates, i.e. temporary orders that are enforced under penalty, and what is just advice or guidance which to some people might be misinterpreted as a mandate. For example, the CDC, a federal agency, has recently changed its guidance on mask use across the U.S, no longer advising the use of masks indoors in most settings, including schools.
However, this advice is not a federal mandate which overrides state or local laws. Massachusetts has, in line with the CDC guidance, also now changed its rules on mask use. Schools are no longer required to use masks indoors, but they are still required in certain settings, such as on public transportation and in public healthcare facilities. Meanwhile, Boston’s city administration has not yet changed its mask mandate in schools and has kept the mandate until the perceived level of risk to Covid-19 reaches a lower threshold. In this case, the local law preempts the state one!
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