A New York court rules that New York State's latest mask mandate must go

In December, the commissioner of health for the State of New York imposed a mask mandate on the state, which Kathy Hochul, the unelected governor of New York, enthusiastically endorsed and enforced.  On January 24, a trial court judge in New York announced that only the Legislature has the authority to issue a mask mandate.  Thus, the New York Legislature, which has a huge Democrat majority, can still reimpose a mask mandate.  For now, though, New Yorkers can breathe free.  And who knows?  They might even decide they like it.

The Hon. Thomas Rademaker, sitting on the Supreme Court of the State of New York, County of Nassau, had before him the case of Demetriou, et al v. New York State Department of Health, et al.  The plaintiffs, acting on behalf of school-aged children, were challenging the most recent mask mandate that came from the State of New York.

Although Gov. Hochul had become the face of the latest mandate, which applies to everyone two years old and older, it was actually the work of Mary T. Bassett, the commissioner of health for New York State.  It came nine months after the New York Legislature, having had it with former governor Andrew Cuomo's unilateral assumption of complete control over New York's health system via executive mandate, passed Executive Law §29-A.  In his opinion, Rademaker explained that the statute "prevents the type of mandates and directives that former Governor Cuomo included in his various COVID-19 related executive orders."

Because of that new law, when Hochul, on November 26, declared a disaster emergency in New York, she could not unilaterally include with that declaration a mask mandate.  (Incidentally, the state revealed in its Answer to the complaint that "currently there is no state disaster emergency.")  Prevented from executing an executive order, Hochul got a proxy to do it for her — the health department.


Image: Kathy Hochul (edited).  YouTube screen grab.

Judge Rademaker, unlike the leftist justices on the United States Supreme Court, intelligently concluded that it was not up to him to determine the proper way for the state to approach COVID as we enter our third year of the pandemic.  Instead, he focused solely on whether the health department had the authority to impose a mask mandate and concluded that it did not.

Just as under the federal system, New York has a division of power.  "It is evident that the Legislature of the State of New York is the branch of government charged with enacting laws and the Executive branch is charged with enforcing the law."  And in the same way that OSHA exceeded its authority when it imposed a vaccine mandate on 85 million American workers, Hochul and the health department also exceeded their mandate when they tried to do an end-run around the Legislature.

What happened in New York is a microcosm of what happened to Biden's vaccine mandate, which he tried to sneak past the Constitution by having OSHA do it when he admittedly couldn't do so himself.  This is twice in as many weeks that a court has reined in a rogue executive as well as the government agency through which said executive acted.

In both cases, the Legislature, whether Congress or the New York Assembly, retains the power to act.  Congress can give OSHA a much broader mandate than it currently has while the New York Assembly can simply pass a law mandating masks.  However, even in institutions that are dominated by leftists, it's hard to imagine that legislators will willingly put their re-elections on the line to impose masks on a population that's sick and tired of being bullied to take actions that are offensive and have had no effect on COVID's spread.

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