How long can an emergency last? That is the question being posed in the state of New York as Governor Kathy Hochul’s recent COVID mask mandate has been ruled unconstitutional by a state Supreme Court judge.
Based on emergency powers supposedly granted by the state’s Health Department, Hochul had in December ordered all indoor venues to require mask-wearing as a renewed response to the Omicron variant of the virus. Yet Judge Thomas Rademaker declared the rule “null, void, and unenforceable” as such a sweeping imposition on the lives of residents would need to be passed by the state legislature, rather than come as an order from the executive on high.
Hochul’s mask mandate, announced on Dec. 10, 2021, was designed to address a “winter surge” in COVID cases. Under the regulation, masks were “required to be worn in all indoor public places unless businesses or venues implement a vaccine requirement.” Businesses were held responsible for ensuring “all patrons past their second birthday and medically able to tolerate a face covering wear a mask at all times while indoors outside of physical eating or drinking.”
The court case was brought by Michael Demetriou and 13 other parents who challenged the compulsory masking in schools. The plaintiffs brought the suit “on behalf of all minor school children and persons similarly situated.” Their attorney, Chad LaVeglia, claimed that Hochul had “circumvented the entire democratic process” and “enhanced her own power to make law, and they just can’t do that.”
“It’s not about the pandemic, it’s about the law,” he added.
While former NY Gov. Andrew Cuomo had instituted various public health directives at the beginning of the pandemic, state lawmakers in March 2021 stripped the governor of the emergency powers they had granted him. Amid sexual harassment and COVID nursing-home mismanagement scandals, it appears Cuomo’s credibility was damaged enough that the state’s Democrat-dominated legislature passed a bill that, as the New York Post reported, “would bar him from creating any new directives without the Legislature’s approval and he would be unable to extend any existing directives unless they are deemed ‘critical’ to public health.”
Hochul’s decree was ruled illegal as her administration no longer possesses the emergency powers that provided the basis of so many executive orders in the early stages of the pandemic. The governor had in November declared a “state of emergency” for New York, based on a Nov. 24 rule by Health Commissioner Mary Bassett, and that rule is what Judge Rademaker struck down. He accused Hochul of using the Health Department as a means to get her mandates through, and said he found no evidence that the executive agency had any authority to enact such a law.
“Neither the governor nor the state health commissioner had the authority to enact the mandate without the state legislature because Governor Hochul no longer has emergency powers,” wrote Rademaker. The judge continued, “enacting any laws to this end is entrusted solely to the State Legislature. While the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature.”
According to Rademaker, Hochul’s order was essentially “a law that was promulgated and enacted unlawfully by an Executive branch state agency, and therefore void and unenforceable as a matter of law.” Hence, the Dec. 10 mandate “must fail as violative of the State Administrative Procedure Act.”
In response, the state Health Department insisted that “schools must continue to follow the mask rule,” as it expects Rademaker’s ruling to be reversed on appeal. Hochul said in a statement, “My responsibility as governor is to protect New Yorkers throughout this public health crisis, and these measures are helping to prevent the spread of COVID-19 and save lives.” She continued, “We strongly disagree with this decision and are pursuing all options to reverse this immediately.”
According to the Health Department, its imminent appeal “will result in an automatic stay that will unambiguously reinstate the mask rule until an appeals court issues a new ruling.”
Balance of Powers
Interestingly, the New York verdict contains some echoes of the recent U.S. Supreme Court ruling against President Joe Biden’s workplace vaccine mandate. While that decision was not a final ruling on the constitutionality of the Occupational Safety and Health (OSHA) mandate forcing businesses with over 100 employees to require proof of worker vaccination, the court did suggest that such a sweeping directive was likely outside the power of the executive, and should rightly belong to the legislative. According to the majority of justices, the federal government must:
“[A]ct consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: ‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”
Three years into the pandemic, can COVID still be considered an emergency? From governors to the president of the United States, the executive branch of government has reveled in the opportunity to seize and exercise power that it has rarely enjoyed before. Will it be willing to give this authority up as the pandemic comes to an end? If nothing else, the virus has given Americans a fascinating case study of constitutional checks and balances in action.
~ Read more from Laura Valkovic.