ALBANY — A Nassau judge’s ruling that a state agency had no authority to impose New York’s indoor mask mandate faces long odds to be upheld, legal experts said Thursday.
That’s because court decisions, dating back nearly a century, long have upheld agencies’ authority to make regulations that carry the weight of law. While there are limits, agencies generally have been delegated to take actions to deal with public health matters and the COVID-19 pandemic, analysts said.
At issue is a ruling Monday by Nassau Judge Thomas Rademaker saying that the New York State Health Department overstepped when it imposed the mask mandate in December and that only the State Legislature had authority to do so. He said the issue hinges on authority, not the benefit of wearing masks.
“Agencies enact regulations that have the force of law every day,” said James Sample, a Hofstra University law professor. “(Rademaker) is conflating the idea that to have the force of law, a (regulation) must go through bicameral passage and signature of the governor. That’s not the world we’ve lived in for nearly 90 years.”
Gov. Kathy Hochul’s administration imposed the mandate to deal with the surge of omicron variant cases during the onset of winter and the holiday season. Rademaker said the mandate was unconstitutional.
The state appealed and an appellate judge on Tuesday granted a “stay,” or temporary suspension of Rademaker’s decision until a full panel of appellate judges can review the case. That means the mandate is still in place.
Meanwhile, the state and mandate opponents must submit written arguments to the court by Friday; the court might rule early next week.
Hochul’s mandate for most indoor settings expires Tuesday but runs until Feb. 21 for schools.
Legal experts contacted by Newsday said Rademaker’s decision might not be upheld.
They said he centered on a 1987 case known as Boreali v. Axelrod, in which New York’s top court ruled an agency overstepped in trying to outlaw smoking indoors. But Boreali involved very different circumstances — among them, a public health council taking action after several anti-smoking bills had failed legislatively.
Here, the question is about a public health agency responding to an emergency such as it has done in the past for Legionnaires’ disease or avian Flu.
“This is very different from Boreali,” said Alicia Ouellette, president of Albany Law School of Union University. “It’s a different case that might result in a different outcome.”
Nestor Davidson, a Fordham University law professor, said Rademaker is saying “delegations to agencies have to be clear.”
“But this seems well within the power the State Legislature has given the Health Department.” Davidson said. “Judge Rademaker’s opinion is written in sweeping terms and places a very high burden of specificity on the Legislature” to delegate authority.
Davidson, referring to the Spanish Influenza of 1918, said a mask orders have a history of being within the realm of public health agencies.
“This is not making up a whole new policy,” he said. “Mask mandates in response to respiratory diseases go back a long time. This is not some novel approach.”
Further, other experts said Rademaker’s implied prescription — that every regulation regarding transportation, health, environment, labor, etc. — go through the Legislature is completely impractical.
“We have long since decided that as a legislative and constitutional matter, that it is impractical for a legislative body — the New York State Legislature or Congress — to have to make every decision with regard to the myriad complexions of modern society,” Hofstra’s Sample said.
“In New York, yes, it would be ideal where, in a utopian universe, in a public health emergency, the Legislature was in session and had the expertise to deal with it. But neither is practical,” Sample said. “Do we really want to have to wait until the Legislature is called into session to act or overcome its lack of technical expertise to act?”
Ouellette raised the same point, saying the judge’s ruling “ignores the fact that Legislatures are very slow. Legislatures don’t have the expertise that agencies have. Agencies have to be able to act quickly in emergency situations.”
