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Gatter is a professor at the at St. Louis University, which happens to be the institution that granted Schmitt a law degree. Schmitt is the attorney general of the state of Missouri, though he spends most of his time these days running for the Republican nomination for the U.S. Senate.

Schmitt wasn’t a party to the restaurant lawsuit, though he made it clear that he was opposed to various county health orders. He even filed an amicus brief in a different case backing a restaurant in the Kansas City area that was violating a local order during the ongoing pandemic.

In an amicus brief in the St. Louis County case, Gatter explained the importance of why state law delegated certain powers to local public health officials:

“Unlike other threats to public health, infectious diseases have the potential to spread quickly across the state’s population like a wildfire,� Gatter wrote in a brief he co-authored with Thomas Burroughs, the dean of SLU’s College of Public Health and Social Justice. “This warrants laws that concentrate authority over infectious disease response at the state level, including regulations that impose specific powers and duties on local officials to impose orders designed to safeguard local populations and to do so on behalf of the State. Upsetting this system of infectious disease governance would undermine both Missouri’s ability to safeguard population health in this pandemic today and its preparedness for future disease threats.�

The judge in the case agreed. The restaurants lost their case. So they tried a new strategy, suing the state Department of Health and Senior Services, and attacking the underlying law that grants local public health officials authority to keep the public safe during a pandemic. It was an ingenious legal strategy, really. That’s because when the state of Missouri gets sued, it’s the attorney general who defends state law.

Enter Schmitt.

It’s not particularly hard to win a lawsuit when the opposing counsel — in this case, Schmitt — agrees with the plaintiff. It’s the ultimate inside game. What should have happened in this case, with Schmitt’s clear conflict, is what Republicans did when there was a Democrat in the attorney general’s office, and they feared a less than aggressive defense of state law.

Twice during Jay Nixon’s tenure as attorney general, Planned Parenthood brought a lawsuit against the state challenging anti-abortion legislation that had passed. In one of those cases, in 2007, the Department of Health and Senior Services hired outside counsel to work alongside the attorney general because Republicans didn’t trust Nixon, who was pro-choice, would do his job.

In fact, he did, taking the cases all the way to the Missouri Supreme Court.

In this case, Schmitt says he won’t do that. In fact, rather than appeal Cole County Circuit Judge Daniel Green’s ruling, Schmitt said he’ll work to enforce it, which suggests any health orders issued under the authority of Department of Health and Senior Services authority are

And that puts Missouri residents at risk as the pandemic continues to rage, winter hospitalizations are up, and the latest variant of COVID-19, called omicron, has made it to the U.S.

“It’s incredibly dangerous,� Gatter says of Green’s ruling, “because it creates this uncertainty about what is the law and what is the structure.�

That metaphor Gatter used in his amicus brief — comparing a pandemic to a wildfire — is a telling one. What Green writes in his ruling is akin to suggesting there is no mechanism in state law granting local officials any authority to move quickly to protect citizens from, say, a fast-moving fire, or a flood, or a tornado, without first convening some local legislative body to mull the pros and cons. When Green, with Schmitt’s help, guts the underlying way in which public health laws have always worked in Missouri, it creates case law that affects much more than whether you might have to wear a mask the next time you go into a local restaurant.

Gatter presumes that some local health authority will file a lawsuit once Green’s order is fully in effect, so a case can be brought to do what Schmitt refuses to do: Ask the Missouri Supreme Court to weigh in on the law, and leave the politicking to less serious people.