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NY Supreme Court judge strikes down governor Hochul’s unauthorized mask mandate

January 25, 2022 | | Print Article

A New York State Supreme Court judge told Gov. Kathy Hochul that she doesn’t have the authority to enact her mask mandate.

Judge Thomas Rademaker ruled that the governor and state health commissioner don’t have the authority to enact the mandate without the state legislature’s approval. Hochul does not have emergency powers.

According to the court document, “there can be no question that every person in this State wishes, wants and prays that this era of COVID ends soon and they will surely do their part to see that that is accomplished. However, enacting any laws to this end is entrusted solely to the State Legislature. While the intentions of Commissioner Basset and Governor Hochul appear to be well-aimed squarely at doing what they believe is right to protect the citizens of New York State, they must take their case to the State Legislature.”

The rule in question would require all state residents over the age of 2 to wear a mask while in a public place where social distancing is not an option. “This has been decided and determined by Commissioner Bassett to include in part, schools and school children,” according to the document.

While former Governor Andrew Cuomo announced the end of New York’s COVID-19 State disaster emergency on June 24, 2021, Governor Hochul extended the emergency powers via Executive Order 11, five months later, on November 26.

“Notably, in her Executive Order of November 26, 2021, Governor Hochul declared a disaster emergency in the State of New York; however, Respondents admit in their Answer that currently there is no state disaster emergency,” the court found.

While Judge Rademaker acknowledged the challenges of governing during a pandemic, his decision hinged on the Constitution.

“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,” the document reads. “To some extent this clear division of authority and responsibility is blurred and difficult to define in many instances, particularly when a state agency enacts administrative rules that relate to a low. But where the line of authority begins and ends lies at the core of our constitutionally established form of representative government.”

“The Court cannot find any law enacted by the State Legislature that specifically gives the Department of Health and its Commissioner the authority to enact a law,” the judge concluded.

Not everyone was waiting for the court’s ruling to act.

New York schools in Plainedge and Massapequa have recently made plans to do away with the mask mandates next month, according to a report from Bronx News 12, and the Board of Education for the Island Trees School District voted unanimously on Monday to leave the decision to mask up to the person who enters the school buildings once the mandate expires.

Nassau County Executive Bruce Blakeman is hopeful the ruling will stand.

“I’m very energized by the court’s ruling, and I believe that, as an appellate court reviews the decision of Justice Rademaker, they will see that it is well principled… That it’s based on the law and the constitution of the state of New York,” Blakeman told Bronx News.

Not surprisingly, many parents were excited to hear the court’s decision.

“Commend the judge for listening to what the community and the students have been asking for,” says parent Brian Peranzo. “Parent’s choice is what we’ve been asking for all along.”

Professor James Sample, of Hofstra University, however, does not expect the masks to suddenly disappear.

“In terms of what the average rank and file New Yorkers can anticipate, I would expect that tomorrow, for example, schools, stores and business will still be subject to the mask mandate…” Sample said.

What is expected is an appeal to the judge’s ruling from the governor’s office.

Until then, the question of masking or unmasking will remain a topic of some confusion.

Given the anticipated appeal, the State Education Department has said schools must continue to follow the mask rule, but according to one parent, the Copiague school district has been told by the school that “as they await further direction from the court, masks will be optional in our schools.”

Melissa Fine
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