A good deal of reporting, as well as such Republican critics as Congresswoman Elise Stefanik, refer to the subject of the dispute as Governor Hochul’s mask mandate. Not true, at least not technically. At issue is a state Department of Health rule, not a gubernatorial executive order.

As a matter of law, Hochul is impotent to issue a mask mandate. Nothing in New York’s state constitution empowers the chief executive to decree such mandates. Separation-of-powers principles theoretically apply to the three branches of state government the same way they apply to the federal government under the U.S. Constitution. A “mandate” is a law, and laws have to be enacted by the legislature. The governor and the sprawling bureaucracy (the state’s administrative state) may promulgate rules if the legislature delegates that authority; but they are confined to what the legislature has authorized them to do — they may not go beyond it.

It is not enough to say the state legislature has not empowered Governor Hochul to issue a mask mandate. In the initial months of the Covid pandemic, then-Governor Cuomo issued numerous mandates, rationalizing that public health required them, and statutory emergency authority authorized him to decree them. But between Cuomo’s reckless directive ordering nursing homes to accept Covid-infected patients and his hands-on (ahem) supervision of female staffers, state lawmakers came under increasing pressure to impeach him. As most of them were Cuomo cronies, they groped — uh, let me rephrase — they struggled for ways to emote their disgust without, you know, actually doing anything. One such exhibition was legislation that curtailed the governor’s ability to issue emergency decrees.