There’s a huge win brewing here for Glenn Youngkin and the GOP in his first month in office, assuming state Sen. Chap Petersen means what he says.
Let’s back up. Republicans and Democrats are squabbling in Virginia over one of Youngkin’s first executive orders as governor, which authorizes parents to decide whether their child should wear a mask in class or not. Youngkin’s not forcing local school districts to repeal their mask mandates or blocking them from imposing them, a la Ron DeSantis in Florida. But his parental opt-out rule has the same effect in practice. If you don’t want your kid to have to mask up in school, you’re free to ignore the not-really-mandatory “mandate.”
But there’s a problem. Last year Virginia passed a law requiring schools to follow CDC guidance on COVID control to the maximum extent practicable. The CDC currently recommends masking in schools, of course. And insofar as a duly enacted statute and an executive order conflict, the statute should control legally. That presents a question for the state supreme court: Does Youngkin’s order conflict with the statute, which would nullify it, or can it be reconciled with it? If schools are obliged by law to set rules in accordance with CDC recommendations, is there any room for parental choice in that framework?
The ambiguity has led to momentary chaos in Virginia’s mask policy, with some local officials defying Youngkin’s order in the belief that it’s illegal.
But there’s a way to resolve that ambiguity that doesn’t involve the courts. The Virginia legislature could simply repeal or amend last year’s law to make masking optional — if it can find the votes, which, it appeared, it couldn’t. Republicans hold the governor’s office, of course, and a majority in the lower house of the state legislature. But Democrats enjoy a 21-19 advantage in the state senate. That means the GOP is blocked…
…unless one of those 21 Democrats is willing to vote with Republicans to change the current law. That would force a 20-20 split on the issue, with new Republican Lt. Gov. Winsome Sears acting as the tiebreaker.
Which brings us to Democrat Chap Petersen. Think of him as the Joe Manchin of the Virginia state senate. Per the Daily Wire:
On Monday, Chap Peterson, a moderate Democrat who joined with Republicans to force school re-opening last year, said in an email to the Fairfax County Parents Association that Fairfax’s school board “must define an ‘off ramp’ for mandatory masking. That means plainly stated metrics as well as a final deadline (e.g. Valentine’s Day). They should announce that immediately. The forced masking policy is going to end very soon, i.e. in a few weeks. Otherwise, the General Assembly will again step in. IT IS NOT AN ACCEPTABLE LONG-TERM SOLUTION.”
Petersen’s an interesting character. He may be a Democrat but he was ahead of the curve on reopening schools, using budget leverage to try to force them to resume in-class instruction a year ago. He was stymied by having a governor from his own party in office. But now the state’s political complexion has changed and he’s evidently prepared to take full advantage.
That would be a win for Virginia’s students, obviously, but also a huge political victory for Youngkin, whose aggressiveness in keeping his campaign promise to empower parents made waves during his first week. Some thought he might go slow on masking, mindful of the fact that he doesn’t govern a reddish state like other anti-restriction GOP governors (DeSantis, Abbott) do. Maybe he’d work with Dems to try to find some bipartisan half-measure solution. But no, Youngkin went right after it. And now, if Petersen means what he says, the governor’s on the cusp of asserting his authority.
Republican lawmakers say they’re energized by the fast start. “November’s election was a call for change in the commonwealth and, like a lot of voters across Virginia, I’m excited to see that our governor has hit the ground running on Day One,” House Majority Leader Terry G. Kilgore (R-Scott) said…
Youngkin is “off to a good start,” said state Sen. Emmett W. Hanger Jr. (R-Augusta), a veteran lawmaker who has sided with Democrats on issues such as Medicaid expansion. When Democrats grumble that Youngkin is like DeSantis, Hanger replies with a grin: “But he’s pleasant about it.”…
Youngkin’s actions “should come as no surprise to anyone who’s paying attention. He’s doing exactly what he campaigned on and what he said he would do on the campaign trail … and we’re not going to apologize for that,” Kilgore, the majority leader, said this week in a floor speech.
I wonder if local Democrats won’t quietly lean on school districts to drop the mandates “voluntarily,” in order to avoid having a floor vote on the matter. That’s a no-win gut check for the party, torn between supporting maximum restrictions to placate their base and siding with Youngkin on an issue that helped him get elected in a Biden +10 state. Endless COVID mandates are an obvious loser for Democrats nationally, and the more exasperated the public gets from endless pandemic fatigue, the more of a loser it’s apt to be. If the mandates just quietly go away without the legislature having to act, that would spare Dems from having to go on the record about them.
Question, though: Do school boards have constitutional authority to ignore the legislature if it moves to lift mask mandates? Some school boards are suing Youngkin, citing Article VIII of the Virginia Constitution. “The supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law,” the key provision reads. If school boards have the constitutional power to “supervise” schools, arguably the only way to make them undo a mandate is to replace the board with anti-mandate members, not a gubernatorial executive order. Stay tuned.
I’ll leave you with Scott Gottlieb, who’s not quite ready to tell kids to take off their masks yet. Soon! But not yet.
It is "too soon" for mask mandates to be lifted in schools says @ScottGottliebMD. "To withdraw it right at the peak of the epidemic, I think it's imprudent. We should wait. I think within two weeks we'll be able make that decision." pic.twitter.com/HT00EF11ZG
— Face The Nation (@FaceTheNation) January 23, 2022
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