Canceled NY mask mandate is uncanceled again... for now

Photo by Evan Agostini/Invision/AP

Yesterday we discussed the ruling of a New York State supreme court judge who issued an injunction against Governor Kathy Hochul’s statewide face mask mandate. The judge found that the mandate violated two different state laws and instructed the Governor to present the proposal to the state legislature for consideration. Well, that injunction lasted less than 24 hours. The Governor immediately challenged the injunction and an appeals court judge put the decision on hold, reinstating the mandate. However, the reasoning given for the reversal doesn’t seem to suggest that the appeals court believes the mandate is legal. This appears to be more of a procedural step in the process than anything else. (Associated Press)

An appeals judge restored New York’s mask mandate Tuesday, a day after a judge in a lower court ruled that Gov. Kathy Hochul’s administration lacked the constitutional authority to order people to wear face coverings during the COVID-19 pandemic.

After hearing brief arguments, Appellate Division Justice Robert Miller granted the state’s request to keep the masking rule in place while the governor’s administration pursues an appeal.

He offered no opinion on the mandate’s legality.

Local news outlets in upstate New York have been having a field day with this story, interviewing school officials and parents about all of the confusion that this circus is causing. Some schools were sending home students who refused to don the masks that the schools were providing, while others were keeping mask usage optional for both students and teachers. This includes some of the upstate school districts that were already refusing to enforce the mandate even before the supreme court judge issued the injunction.

New York Attorney General Letitia James praised the ruling, saying that she would continue to defend the mandate in court. Governor Hochul also cheered on the decision, sounding as if she had won some sort of major court victory. That optimism may prove to be a bit premature, however.

As I suggested above, this may prove to only be a temporary setback. Justice Miller did not comment on the legality of the mandate, instead simply declaring that the Governor has the right to pursue an appeal and that the mandate could remain in effect while that process plays out. But it’s difficult to see how the court of appeals will arrive at a different conclusion than Judge Rademaker did originally. Two different state laws make it unconstitutional for such an order to be put into effect without the legislature voting to do so. (And that’s a vote that many of those legislators are dreading the thought of.)

There’s another reason that all of this court activity may prove to be pointless. The current mandate issued by Hochul via the state Health Commissioner in December is only scheduled to remain in effect until February 1st. At that time, Hochul was scheduled to “revisit” the matter and decide whether or not to extend it based on the number of new cases being measured across the state. (That number has been steadily dropping every week.)

The decision to extend the mandate has to be made in five days. If Hochul chooses to let it expire, the courts will likely drop this hot potato and walk away without bothering to make a final determination because the original cause of action will no longer exist. That will leave the larger question of whether or not the mandate was legal hanging over everyone’s heads until the next variant blows into town.

Meanwhile, as I already alluded to above, many upstate school districts are simply ignoring the mandate and leaving the decision about masking up to the parents. Others are enforcing it, further disrupting the education of children and the work schedules of parents. The District Attorney is claiming that masks “promote safety.” But from the look of things this week, what the mandate actually promotes is chaos and confusion.