We’ve become accustomed to S.C. Attorney General Alan Wilson's missives demanding that public officials back off their attempts to protect the public health, but the one he sent to Columbia on Tuesday generated a very different response than the ones he sent to the College of Charleston and the University of South Carolina.
Rather than backing down and complying with Mr. Wilson’s interpretation of the state law that prohibits K-12 public schools from requiring masks, Columbia Mayor Steve Benjamin said, essentially: So sue me.
It’s hard to imagine Mr. Benjamin winning that lawsuit, because unlike the colleges, Mr. Wilson’s interpretation of that provision is almost certainly right. But in that response, Mr. Benjamin highlighted the easily overlooked truth about the attorney general: He has no authority to order anyone to do anything, even when he’s right about the law. The only way he can force any action by a college or other state agency or local government is by filing a lawsuit, and persuading a court to agree with his interpretation.
Any authority the attorney general’s office has outside the courtroom is based on the deference that officials choose to give to official attorney general’s opinions, which are serious legal analyses written by the professionals in the opinions section and which attempt not to advocate but to present an analysis of case law that predicts how a court would rule. Although an occasional opinion does seem to be influenced by the politics of the attorney general, nearly all of them are solid, and usually turn out to be correct when lawsuits are filed. But Mr. Wilson’s recent mask letters weren't attorney general’s opinions; he called his unsolicited directive to USC “guidance.”
So why in the world did USC interim President Harris Pastides rescind his campus mask requirement in the face of Mr. Wilson’s bizarre conclusion that the law that says colleges can’t make unvaccinated students wear masks unless vaccinated students have to wear masks actually prohibits any mask requirements? And why did the rest of the state’s colleges immediately fall in line behind USC, with even the Medical University of South Carolina saying students could go maskless on campus?
Although USC's attorneys might not have known at the time that Mr. Wilson’s understanding of the Legislature’s intent was based on “evidence” the S.C. Supreme Court considers irrelevant, surely they knew the law didn’t meet the court's usual requirements for ignoring the plain words of the text. But as Dr. Pastides implied in an earlier meeting with our editorial staff — when he begged off even discussing the wisdom of vaccine mandates by saying, "We're in a no-mandate state" — he understands that sometimes you win the victory only to lose the war.
Senate Republican Leader Shane Massey, who tweeted last week that Mr. Wilson was wrong about the mask law, predicted that if USC hadn’t backed down, the Legislature would have “fixed” the law to say what he claims it says. Others have said the same thing privately.
We don't know whether legislators actually had the votes to pass a prohibition on college mask requirements, but it's understandable that university officials wouldn't want to find out. After all, legislative leaders had quietly managed to water down the college proviso, which started out as a prohibition on mandates, and had killed a House proviso that would have prohibited colleges from requiring COVID testing. Colleges had good reason to worry that if they pushed the Legislature too far, they’d not only end up with a ban on mask requirements but also lose their ability to require mandatory tests. And who knows what else.
All this, by the way, is the problem with Sen. Dick Harpootlian’s lawsuit against USC and Mr. Wilson: Although the suit does a good job of pointing out the numerous legal flaws in Mr. Wilson’s argument, what it asks the court to do is to invalidate the attorney general’s interpretation of the law. That is, it asks the court to declare that unsolicited advice that has no force of law is incorrect. Which is not the sort of things courts tend to do.
Even if the senator prevailed, it would still be up to USC and other colleges to decide whether to require students to wear masks, and there’s good reason to believe they weren’t motivated by fear of Mr. Wilson’s lawsuit. They were motivated by fear of retribution from the Legislature.
Because let’s face it: This is a legislative state, and few things happen that the Legislature doesn’t want to happen.
Although Gov. Henry McMaster issued an executive order prohibiting public schools from requiring masks, that prohibition expired when he ended the state of emergency. It’s the General Assembly that passed the law — which the governor couldn’t suspend even if he declared another state of emergency, and wanted to suspend it — that prohibits public school mask requirements. Likewise, it’s the Legislature — not the attorney general — that can legally remove the authority colleges have now to require masks. Or to do pretty much anything else.
And it’s the Legislature — not Mr. Wilson, not Mr. McMaster — that decides whether our state will be able to use the tools it has to prevent our public schools and colleges from becoming COVID hot spots.