Mask mandate stays — for now

On Tuesday evening, an Appellate judge issued a stay to keep New York’s mask mandate in place pending further proceedings.

A Long Island judge at the lowest rung of the state’s three-tiered judicial system had struck down New York’s mask mandate on Monday.

Justice Thomas Rademaker of the state Supreme Court in Nassau County said Governor Kathy Hochul’s administration had exceeded its authority in implementing the rule.

After a Tuesday afternoon hearing, Associate Justice Robert J. Miller ordered that a stay on the lower court’s decision will remain in effect until at least Jan. 28.

In a statement Tuesday evening applauding the Appellate Division, Second Department “for siding with summon sens and granting an interim stay,” Hochul, a Democrat, said of masking, “These measures are critical tools to prevent the spread of COVID-19, make schools and businesses safe, and save lives.”

Similarly, Education Commissioner Betty Rosa lauded the stay and supported the appeal, saying that the mask mandate remains in effect for schools across the state.

On the other hand, Rob Ortt, the State Senate’s Republican leader, issued a statement Tuesday evening, critical of the stay. “If the governor truly thinks a mask mandate is in the best interests of New Yorkers, she should send a bill to be debated before the legislature,” he said.

In his decision, Rademaker did not question the settled science of mask-wearing; rather, he questioned the way the mandate was instituted. 

“To be clear, this Court does not intend this decision in any way to question or otherwise opine on the efficacy, need, or requirement of masks as a means or tool in dealing with the COVID-19 virus,” Rademaker wrote. “This Court decides only the issues of whether the subject rule was properly enacted and if so whether same can be enforced.” 

Rademaker wrote that former Governor Andrew Cuomo issued a number of executive orders under the guise of a state of emergency, but that the legislature rolled back his — and every subsequent governor’s — executive-order powers in March 2021. 

The law curbing executive authority passed by legislature, Rademaker wrote, “prevents the type of mandates and directives that former Governor Cuomo included in his various COVID-19 related Executive Orders.”

The mask mandate went into effect by way of a state Department of Health rule on Dec. 10, 2021. Rademaker writes Governor Kathy Hochul had endorsed the idea of a mask mandate in a Nov. 26, 2021 executive order declaring a state of emergency, but did not institute one “due to the State Legislature’s proscription against such broad ranging Executive branch lawmaking powers ….”

Instead, the governor pulled a sort of legal end-around and “utilized the New York State Department of Health to issue this ‘emergency’ ‘rule,’” the judge wrote.

If state agencies were allowed such law-making powers, according to Rademaker, then laws could be “changed at the whim of every new Commissioner who could then be said to be beholden to their appointer but also it would surely result in a lack: of representative government wherein only a select few appointees of the Governor make the laws.”

Rademaker wrote he couldn’t find a law enacted by the legislature that gave the Department of Health “the authority to enact a law.” And later in his decision he writes more assertively, “nowhere in the Public Health Law is the Commissioner bestowed with the authority to make a law.”

Rademaker wrote if the governor wanted to institute a mask mandate the legislature was the correct avenue for doing so.

“We disagree it has to go through the legislature,” Hochul said at a press conference in Syracuse on Tuesday, adding, “I believe we’ll win on the merits.”

Asked when she would lift the mandate, Hochul said, “I will not do it a day before we can do it safely.”

She urged looking around “the rest of the country” where, without mandates, she said, education had been disrupted. She also noted that the Omicron variant had changed the assumption children wouldn’t get sick or hospitalized with COVID-19.

With her Winter Surge Plan 2.0, Hochul had extended her mask-or-vax requirement by two weeks until Feb. 1. She had said at an earlier press conference that she wouldn’t know until Jan. 31 if the requirement would be lifted on Feb. 1.

On Tuesday, Hochul said she put the mask mandate for schools into effect as soon as she became governor on Aug. 24 and is closely monitoring data to see when it can be lifted. 

She is looking at positivity or infection rates, at the rate of vaccination — she noted earlier in the press conference that just 26.2 percent of 5- to 11-year-olds statewide are vaccinated against COVID — and at hospitalization data, particularly pediatric hospitalization, she said on Tuesday.

“We’ll absolutely get to that day,” said Hochul.

— Melissa Hale-Spencer contributed the parts from Kathy Hochul’s Tuesday press conference and the Tuesday evening statements from Hochul, Betty Rosa, and Rob Ortt.

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