State Court strikes down NY's mask mandate

A state judge in Nassau County has ruled that the Governor exceeded her authority in issuing a COVID-19 mask mandate in December 2021. This is the latest in a series of court rulings over the last few years in which courts around the country have applied traditional legal principles in examining governmental orders relating to the pandemic. 

The case is Demetriou v. New York State Department of Health, issued on January 24. The most recent high-profile COVID-19 ruling saw the Supreme Court strike down an order from the federal Occupational Safety and Health Administration (OSHA) mandating that large employers around the country follow a vaccination mandate. That ruling concerned the power of a federal agency and whether it comported with the federal statute that created the agency. The Nassau County ruling involves a similar legal principle: separation of powers. 

These cases have acquainted the public with otherwise obscure legal principles. They are obscure to the general public, but not to lawyers and judges, many of whom probably last focused on these principles in law school. But obscure legal principles have a funny way of becoming relevant when you last expect it. Two years ago, courts were not routinely considering whether the Executive Branch had authority to make certain decisions. Not so today.

The plaintiffs in this case sue on behalf of their children who have to wear masks in school. The Court notes that the Governor declared a disaster emergency on November 26 once the Omicron variant began spreading around the country. But the State admits in its Answer to the lawsuit that currently there is no state disaster emergency. The Executive Branch then promulgated the mask mandate regulation. Everyone over the age of two has to wear one. The problem, as the Court sees it, is that the regulation covers a subject matter that only the State Legislature can address, not the Governor's office. The Court cites a 1987 ruling from the State Court of Appeals stating that the legislative branch cannot cede its authority to an administrative agency, which is not part of the legislative branch but the executive branch, with the Governor at the helm of that branch.

Administrative agencies do have power to issue certain rules. But those rules must be authorized by statutes. The Court says that no law enacted by the State Legislature gave the Department of Health the authority to adopt the mask mandate. Nor may regulations issue without compliance with the Administrative Procedure Act, which articulates a process for new regulations. This is administrative law 101: all regulations must in some way be authorized by statute. Since administrative agencies are comprised of experts who can issue specific regulations that give life to a statute, courts will defer to that expertise. But that deference has its limits. By way of example, the judge writes, "This Court does not need to contort the bounds of reality to imagine chaos in this State wherein laws were rules made from Executive Branch appointees such as the Commissioner of the Department of Motor Vehicles issuing annually new and differing speed limits or other rules of the road."

While the judge is sympathetic to what the State is trying to do in enacting the mask mandate, it strikes down the mandate, concluding this is a matter for the Legislature, not the Governor. The implication is that if the Legislature enacts such a mandate, it would probably be legal. In the meantime, the State is appealing this ruling, and my guess is the Appellate Division will resolve this issue very quickly. In the meantime, since the State is taking up an appeal, the mandate is still enforced during the appellate process.