Spotlights 2022
September 30, 2022
The current status of federal vaccine mandate litigation, part 2
Last week’s update summarized the litigation surrounding three federal COVID-19 vaccine mandates: the contractor mandate, the federal employee mandate, and the Head Start program mandate. This week, we cover two additional federal vaccine mandates: the military mandates and the CMS mandate.
Military Mandates
Several district courts have granted injunctive relief in favor of service members pursuing RFRA and First Amendment challenges to military vaccine requirements.
In February 2022, the Fifth Circuit upheld one such injunction in U.S. Navy Seals 1-26 v. Biden. In March 2022, the Supreme Court narrowed the injunction, authorizing the military to reassign but not fire unvaccinated service members as the litigation continues.
In Doster v. Kendall, a district court in Ohio blocked the U.S. Air Force from enforcing its COVID-19 vaccine mandate based on plaintiffs’ RFRA and First Amendment claims. On appeal, the Sixth Circuit denied the Air Force’s emergency motion to stay the class certification, but expedited the consideration of the appeal. The order granting class status and preventing enforcement of the mandate remains in effect.
In Colonel Financial Management Officer v. Austin, a district court in Florida granted a class-wide preliminary injunction against the COVID-19 vaccine mandate for all U.S. Marines on the basis of RFRA. A bench trial has been scheduled for January 23, 2023 to consider a request for a permanent injunction.
Other challenges to military vaccine mandate have not been as successful. A California district court found Dunn, a service member, was unlikely to succeed on the merits of his RFRA and First Amendment claims, finding less restrictive means “not viable options.” Prelim. Inj. Hrg. & Order, Dunn v. Austin, 2:22-cv-288, ECF No. 22 (E.D. Cal. Feb. 2, 2022). The Ninth Circuit (see Dunn v. Austin, No. 22-15286, 2022 WL 1136043, at *1 (9th Cir. Apr. 1, 2022)) and the Supreme Court both denied Dunn’s request for an injunction pending appeal.
Additional cases in which courts denied plaintiffs' motions for preliminary injunctions include Roth v. Austin, appeal filed, No. 22-2058 (8th Cir. May 20, 2022); Knick v. Austin, Creaghan v. Austin, appeal filed No. 22-5135 (D.C. Cir. May 20, 2022); and Navy Seal 1 v. Austin.
CMS Mandate
Despite being upheld by the Supreme Court in January 2022, challenges to the CMS vaccine mandate continued. In February 2022, the attorneys general of 16 states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia and West Virginia) sought to amend their complaint, stating that the blanket rule issued by CMS does not account for changing and developing circumstances, and that given the new, more vaccine-resistant, Omicron variant, “the situation has changed.” This amended suit was filed in the Louisiana district court that issued the initial preliminary injunction against CMS’s interim final rule. Ultimately, the motion was denied by the Fifth Circuit.
September 23, 2022
The Current Status of Federal Vaccine Mandate Litigation
The federal government has imposed a number of vaccine mandates in response to the COVID-19 pandemic. This week’s update offers a brief summary of the litigation surrounding several of these mandates, including the contractor mandate, federal employee mandate, and Head Start program mandate. The litigation status of additional vaccine mandates will be discussed next week.
Contractor Mandate
Last month, the Eleventh Circuit upheld a lower court’s injunction of Biden’s executive order requiring employees working on federal government contracts to be vaccinated against COVID-19 (Georgia v. Biden). The court agreed that Biden acted outside the scope of his authority under the Procurement Act when he directed executive agencies to enforce the mandate. However, while the lower court enjoined enforcement of the contractor vaccine mandate nationwide, the Eleventh Circuit narrowed the applicability of the injunction to only plaintiffs. Nevertheless, the federal government has decided to not enforce the mandate anywhere.
There remains a patchwork of ongoing litigation regarding the contractor mandate, and many cases are pending appeal:
· Enforcement is enjoined in the seven states that were parties to Georgia v. Biden and in federal contracts with members from the Associated Builders and Contractors (Georgia v. Biden)
· Enforcement is enjoined as applied to federal contracts in Indiana, Louisiana, and Mississippi as parties, but an appeal is pending in the 5th Circuit with oral arguments scheduled for October 3, 2022 (Louisiana v. Biden)
· Enforcement is enjoined in federal contracts in Florida, but an appeal is pending in the 11th Circuit (Florida v. Nelson)
· Enforcement is enjoined in federal contracts in Arizona, but an appeal is pending in the 9th Circuit (Brnovich v. Biden)
· Enforcement is enjoined in federal contracts in Kentucky, Ohio, and Tennessee, but an appeal was argued in the 6th Circuit on July 21, 2022 (Kentucky v. Biden)
· Enforcement is enjoined in federal contracts in Alaska, Arkansas, Iowa, Montana, Missouri, Nebraska, New Hampshire, North Dakota, and South Dakota, but an appeal was argued in the 8th Circuit on September 21, 2022 (Missouri v. Biden)
Federal Employee Mandate
Currently, the full Fifth Circuit is considering the federal employee mandate (Feds for Medical Freedom v. Biden). In this case, the government is asking the court to uphold the decision reinstating President Biden’s executive order. The court had lifted an injunction issued by a U.S. District Court in Texas blocking enforcement of this order.
The government is arguing that employees opposing the mandate should not have taken their case to federal court, but, in accordance with the Civil Service Reform Act, should have taken their complaints to a federal review board. They also argue that President Biden is equivalent to the CEO of America’s workforce and thus can require private corporations to mandate their employees be vaccinated.
Head Start Centers Mandate
Several plaintiffs have challenged the Biden Administration’s order requiring teachers, contractors, and volunteers of Head Start programs to be fully vaccinated against COVID-19. The U.S. District Court for the Northern District of Texas granted a preliminary injunction preventing enforcement of the mandate in Texas, finding that in promulgating the order, HHS did not follow appropriate administrative rulemaking procedures and the HHS Secretary acted outside the scope of his powers. On March 1st, 2022, the government’s deadline to appeal that decision expired. In Michigan, a district court denied a request for a preliminary injunction, finding that the Secretary did have authority to issue the mandate. On appeal, the Sixth Circuit again denied plaintiffs’ request, finding the HHS Secretary did not violate the APA and did have the statutory authority to promulgate this vaccine requirement. The U.S. District Court for the Western District of Louisiana initially granted a preliminary injunction and later issued a permanent injunction blocking the mandate in the 24 states part of the litigation, stating that this mandate exceeded the scope of the President’s authority, and that he is unable to issue such a mandate without congressional approval.
As cases continue to be appealed, the status of these mandates and their enforcement is continuously changing. Next week, we’ll continue discussing litigation surrounding federal vaccine mandates.
August 19, 2022
More amicus briefs filed in the CDC transportation mask mandate case
Private individuals and organizations are making their voices heard in the CDC transportation mask mandate litigation. Following Judge Kathryn Kimball Mizelle's April 2022 decision striking down the mandate, Public Health Law Watch submitted an amicus brief with public health and public health law experts and organizations in support of the CDC. This month, eight groups have submitted amicus briefs in support of plaintiffs, the Health Freedom Defense Fund.
Briefs on behalf of plaintiffs have been submitted by a group of disabled passengers, the Washington Legal Foundation, a group of airline workers, Liberty, Life, and Law Foundation, Children’s Health Defense, Florida and 22 other states, Association of American Physicians and Surgeons, and a group of industrial hygiene experts.
Several of the briefs claimed that wearing masks leads to health issues. For example, the brief submitted by a group of airline workers argued that “[p]ilots must wear a mask before and after flight, causing us numerous medical deficiencies,” and “[w]earing a mask before we work a flight causes us to feel we are unable to operate the aircraft in a safe manner.”
Other briefs argued that the masks are not effective public health measures. A brief by the Association of American Physicians and Surgeons, a conservative nonprofit described by the New York Times as “ultra-right-wing” and “a political-economic rather than a medical group” dismissed several studies illustrating the effectiveness of masks, deciding instead to cite to a study that looked only at school mask mandates.
A few briefs brought in legal arguments. For example, the brief submitted by a group of disabled passengers argued that the mandate exceeded the CDC’s statutory authority and asked the court to “affirm the district court’s reliance on the Major Questions Doctrine.” Similarly, Florida’s brief argued that the mandate exceeded statutory authority because it is not a “sanitation” measure.
In contrast, Public Health Law Watch’s brief with public health and public health law experts in support of the CDC asserted that the mask mandate is a proper exercise of the CDC’s core regulatory powers to combat infectious disease spread and transmission. Congress wrote the Public Health Service Act to be broad enough to allow authorized agencies the power to take actions that in its “judgment[,] may be necessary” to respond to various diseases.
The American Medical Association also filed a brief in support of the CDC, arguing that masks are an effective public health intervention and that public health authorities like the CDC are well-positioned to implement such measures in an emergency situation like the COVID-19 pandemic.
The Eleventh Circuit has not yet set a schedule for arguments in the case.
July 15, 2022
What West Virginia v. EPA could mean for public health authorities
On Thursday, June 30, 2022, the Supreme Court in West Virginia v. EPA held that the Environmental Protection Agency (EPA) did not have the authority to enact the Clean Power Plan, an Obama-era climate change regulation (that was not actually in effect) that aimed to reduce carbon dioxide emissions from existing coal and natural gas power plants.
The Court’s decision limits the EPA’s ability to regulate emissions on a wide scale, and has the potential to further hamper the ability of federal agencies to issue regulations that protect health. In its decision, the Court invoked the major questions doctrine, which serves as a type of “clear statement rule” that bars agencies from issuing regulations on matters of major economic and political significance without explicit Congressional authorization.
What this means for public health
The Court’s decision hobbles the EPA’s ability to address climate change. More broadly, the Court’s reliance on the major questions doctrine in this case, as well as in its decisions blocking CDC’s eviction moratorium and OSHA’s vaccine-or-test mandate, threatens the ability of all federal agencies, including the FDA, CDC, and HHS, to protect the public’s health. For generations, Congress has granted agencies broad authority to promulgate regulations to achieve the goals set forth in statutes. This is especially necessary during public health emergencies, when authorities must act quickly, and potentially in innovative ways, to respond to a crisis. But the doctrine’s impact will be felt more broadly. Congress has long relied on agencies’ expertise to determine the best ways to achieve its goals. Requiring Congress to provide detailed instructions to agencies on the ways in which they can achieve these goals will hamstring the government’s ability to act effectively.
The major questions doctrine also opens the door to confusion, leaving agencies in the dark about what may or may not be allowed, as there are no clear guidelines for what constitutes a “major” question. In his concurring opinion in West Virginia, Justice Gorsuch attempted to lay out several factors that the Court, in his view, considers when invoking the major questions doctrine: that the matter is of great political significance; affects a significant portion of the economy, and touches upon a “particular domain of state law.” These criteria are themselves open-ended and could potentially apply to a wide range of federal regulations. As a result, the doctrine has the potential to transfer policymaking power from the federal government to the courts.
July 1, 2022
What might Dobbs v. Jackson mean for public health authority?
Abandoning almost 50 years of precedent, the U.S. Supreme Court last week in Dobbs v. Jackson Women’s Health Organization declared that the U.S. Constitution does not confer a right to abortion. In a majority opinion written by Justice Alito, the court upheld the “Gestational Age Act,” a 2018 Mississippi law banning most abortion procedures after fifteen weeks of gestation.
The crux of the majority opinion appears to rest on the nation’s history—holding that no statute or English case provided a right to an abortion, and that having an abortion was in fact unlawful and criminalized. The majority uses this reasoning to declare that matters of abortion should be decided by states.
What this means for public health authority
The Court’s decision puts into doubt substantive due process claims. During the COVID-19 pandemic, hundreds of plaintiffs have challenged public health emergency orders, such as business closures, asserting substantive due process violations. Though most of these claims were dismissed, some courts struck down stay-at-home orders and business closures for violating substantive due process. The Court’s focus in Dobbs on whether the right to an abortion was “deeply rooted” and recognized at the time of the ratification of the 14th Amendment might cast doubt on such claims.
Justice Alito tried to address the potential of the decision on other substantive due process and right to privacy rights, including rights to contraceptives and same-sex marriage, saying, “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” However, in his concurrence, Justice Thomas suggested that the Court should use the same legal rationale it used in Dobbs to review other cases under the right to privacy. The future of those rights are now uncertain, as are other claims based on those rights.
What the decision does not say is troubling for public health jurisprudence. Instead of discussing the impact of the Mississippi law and the Court's decision on the health of individuals and communities, the Court focused solely on the history of abortion laws.
The Dobbs decision will have a cascading effect for generations to come. Abortion restrictions will not decrease abortion rates, but instead will end safe abortion, risking patient safety and lives. Seventeen states have already banned or will soon ban abortion. Currently, an abortion ban is active in 6 states (Alabama, Arkansas, Missouri, Oklahoma, South Dakota, and Wisconsin). Existing bans have been temporarily blocked by a judge in 4 states (Arizona, Kentucky, Louisiana, and Utah), while an abortion ban is set to take effect in 7 states (Idaho, Mississippi, North Dakota, Tennessee, Texas, West Virginia, and Wyoming). Twenty states and the District of Columbia protect abortion access under state law; however, only 4 states (Colorado, New Jersey, Oregon, and Vermont) and the District of Columbia protect the right to an abortion at any stage of pregnancy.
This decision forces providers, health plans, and employers to immediately reassess their operations and the risks of certain procedures and coverage in certain states. With the increasing use of telehealth, the opportunity to receive abortion counseling online, and the mailing of medication directly to the patient, some states will attempt to regulate the use of telehealth abortion, though policing these regulations will be difficult.
June 10, 2022
Amicus brief filed in the CDC Transportation Mask Mandate case
On June 7, 2022, a group of 231 individuals, including six former CDC directors and hundreds of scholars, and 20 public health organizations, including Public Health Law Watch and the American Public Health Association, submitted an amicus brief to the Eleventh Circuit in support of reversing Judge Kathryn Kimball Mizelle’s April 2022 decision striking down CDC’s transportation mask mandate.
The brief asserts that CDC’s mask mandate is a proper exercise of its core regulatory powers to combat infectious disease spread and transmission via interstate and international travel under the Public Health Service Act, as Congress has delegated to federal public health agencies, including CDC, authority under the Act to address public health issues in a manner that individual states cannot.
The brief first presents the argument that CDC’s mask mandate is an exercise of the agency’s core regulatory function. During the crafting of the PHSA, Congress wrote the law to be broad enough to apply to any disease and to allow authorized agencies the power to take actions that in its “judgment[,] may be necessary” for the situation. The CDC mask mandate was implemented during a pandemic, and in a time where air travel, both domestic and international, has significantly grown. The mask mandate is an evidence-based mechanism backed by epidemiological findings, promoted by both domestic and global public health organizations, and separately employed by different US jurisdictions. By letting the District Court’s decision stand, CDC’s ability to safeguard the nation and apply its regulatory power to protect against interstate and international spread and transmission, including of COVID-19, will be hindered.
The amici curiae secondly argue that CDC’s mask mandate is authorized under the PHSA’s plain language based on both historical and contemporary meanings of the word “sanitation.” The brief further posits that the catchall language in the PHSA authorizing "other measures" encompasses the mask mandate, rejecting the District Court’s reasoning that the “other measures” were restricted to measures virtually identical to those previously enumerated. The brief also demonstrates how legislative history indicates Congress’ intention that the list of measures be non-exhaustive.
Read the full brief here
April 15, 2022
Indiana's fight over emergency powers
Last Thursday, the Indiana Supreme Court heard arguments in a case determining the constitutionality of a law giving state legislators the authority to call themselves into special legislative sessions during public health emergencies.
What this means for public health
This case follows a line of cases raising separation of powers issues relating to public health emergency orders. In several states, including Louisiana, Michigan, New Hampshire, and Wisconsin, state legislatures that were unhappy with governors’ emergency orders during the COVID-19 pandemic attempted to limit executive powers. These cases raise important issues about the balance of power during a public health emergency. They also have the potential to weaken the executive branch’s ability to act quickly during a public health emergency. Governors and other health officials might be wary of imposing public health measures knowing they could be quickly overruled by the legislature. Under Indiana law, the Legislature can end the Governor’s emergency orders with a majority vote.
Background
Unlike many intrastate power struggles between the state executive branch and legislature, such as that in Wisconsin v. Palm, the fight in Indiana is not a partisan one. Both Governor Eric Holcomb and legislative leaders are Republican.
The conflict arose in July 2020, after the Governor ordered a statewide mask mandate. Shortly after, several Republican legislators asked the Governor to convene a special legislative session so they could debate the order and other COVID-19 measures. Even the Republican state Attorney General at the time, Curtis Hill, opined that the Governor should have called a special legislative session.
The Governor declined to call a special session. When the Legislature, known as the General Assembly, began its regular session in January 2021, it passed the law in question, House Bill 1123. The law gives the Legislature the ability to call “emergency sessions” during times the Governor has declared a statewide emergency. The Governor vetoed the law shortly after it was passed, and the Legislature overrode that veto. The Governor challenged the law in court, and in October 2021, a Marion County Superior Court judge upheld the law.
The Indiana Constitution permits the Governor to call special sessions of the General Assembly. The question is whether that grant of power is exclusive to the Governor, or whether it is shared by the Governor and the Legislature.
A similar law was upheld by the Wisconsin Supreme Court in 2019, in League of Women Voters of Wisconsin v. Evers. Similar to the Indiana case, plaintiffs argued that the Wisconsin Constitution, which allows the Governor to call in special legislative sessions, gave that power solely to the Governor. The court held that extraordinary sessions called by the Legislature are not in violation of the Wisconsin constitution, as they have the power to make laws authorizing that power.
April 1, 2022
Public Transportation Mask Mandate Litigation
On March 10th, the Transportation Security Administration (TSA) extended its mask mandate for public transportation, including planes, trains, and buses, as well as transportation hubs such as airports. CDC initially issued the requirement in February 2021, and the Department of Health and Human Services directed TSA to enforce the mandate, which has been extended several times, and is currently set to expire on April 18th.
Several groups have filed lawsuits over the mandate, arguing that it violates the Administrative Procedures Act and exceeds the scope of CDC’s authority under the Public Health Services Act. A key question in these cases will be the application of the major questions doctrine, in which courts do not defer to an agency’s statutory interpretation that deals with questions of “vast economic and political significance,” or that could greatly increase agency authority.
What it Means for Public Health:
The litigation over the transportation mask mandates presents yet another challenge to the ability of federal agencies, including CDC, to issue orders to protect the public’s health. It is also a further attempt to expand the major questions doctrine. If any of the courts agree with the plaintiffs, they may block the mandate. This could leave the government with fewer tools to ensure safe transportation should COVID-19 cases start to rise.
The Mask Mandate Litigation
The major questions doctrine was central to the litigation surrounding the federal eviction moratorium, in which the Supreme Court in Alabama Association of Realtors v. HHS ruled that the moratorium exceeded CDC’s statutory authority, also under the Public Health Services Act.
In fact, several mask mandate plaintiffs cited the Supreme Court’s decision in their complaints. On March 14th, a group of 16 Republican Members of Congress filed a lawsuit in the Western District of Kentucky to end the transportation mandate, arguing that the CDC exceeded its authority granted by Congress. Plaintiffs cited to Alabama Association of Realtors. They also argued that even if the CDC had authority to enact the mandate, it would constitute an unconstitutional violation of the nondelegation doctrine. Texas and U.S. Rep. Van Duyne filed a lawsuit in February in the Northern District of Texas utilizing those same arguments.
March, 11, 2022
Keil v. City of New York Case Nos. 21-3043, 21-3047
On Monday, March 7, the Supreme Court rejected a request by New York City teachers to review their Free Exercise challenge to the city’s COVID-19 vaccine mandate.
After Justice Sotomayor, who is assigned to the Second Circuit, denied plaintiffs’ emergency request to hear the case, they turned to Justice Gorsuch. He referred the case to the full Court for consideration.
The Court has sent mixed signals about vaccine mandates. In January, it blocked OSHA’s vaccine-or-test mandate for companies with more than 100 employees, but allowed the HHS mandate for health care workers at institutions receiving Medicare and Medicaid funding to go forward. However, the Court has declined to hear challenges to state mandates.
Monday’s refusal follows the Court’s decision in February to reject the petition by Maine health care workers to enjoin that state’s vaccine mandate for health care workers. Last August, Justice Barrett rejected an emergency request by college students to review Indiana University’s vaccine mandate.
Although the Supreme Court has not ruled on any of the state claims, Justices Gorsuch, Alito and Thomas have indicated that they consider state mandates that lack religious exemptions to be unconstitutional. For now, however, the majority seems content to leave the litigation over state mandates to the lower courts.
February 25, 2022
Religious Exemptions to Vaccine Mandate Cases: Maine & NYC
The Supreme Court has recently been asked to hear several vaccine mandate cases brought on religious freedom grounds. On Tuesday, February 22, the U.S. Supreme Court again declined to hear arguments from Maine health care workers challenging their state’s vaccine mandate. A week earlier, the Court said it would consider hearing an emergency request to block a vaccine mandate brought by New York City teachers and staff.
In late October, a group of Maine health care workers sought injunctive relief from the emergency mandate, seeking a religious exemption. The Supreme Court denied plaintiffs’ request in a 6-3 decision. The dissent, penned by Justice Gorsuch, opined the mandate should be reviewed under strict scrutiny due to the mandate’s lack of religious exemptions.
Enacted in August 2021, Maine’s initial emergency mandate requiring health care workers in the state be vaccinated has since become a permanent regulation.
In August, New York City issued a vaccine mandate for teachers and school staff. The United Federation of Teachers filed a formal objection to this mandate on the grounds it did not provide medical or religious accommodations. Following arbitration, a process was created whereby religious accommodations could be made by submitting a request “documented in writing by a religious official.” Requests could be denied where objection to the vaccine is “personal, political, or philosophical in nature.”
Plaintiffs, a group of New York City teachers and school administrators, sued on religious freedom grounds. Both the District Court and the 2nd Circuit reasoned that the mandate does not violate the First Amendment rights of the plaintiffs. However, the courts disagreed on whether a preliminary injunction should have been granted on the more procedural issue of whether religious exemptions for more uncommon or unorthodox religions violated the arbitration agreement.
After Justice Sotomayor denied the emergency request from plaintiffs to hear the case, plaintiffs then sought a new emergency request from Justice Gorsuch, who offered the emergency request to the full court for consideration. According to Supreme Court rules, parties may make a renewed request to “any other justice” after a denial from the justice with jurisdiction over the circuit court involved in the case. It’s speculated that the plaintiffs in this case chose to make a renewed request to Justice Gorsuch because he wrote the above-mentioned dissenting opinion when the Court denied a request to block the Maine vaccine mandate.
However, there are important differences between the Maine vaccine mandate and the New York City vaccine mandate. Specifically, the Maine vaccine mandate does not offer religious accommodations, while the New York City vaccine mandate does, although the parties disagree on how limited these accommodations are.
February 11, 2022
Austin v. Pritzker (Case No. 2021-CH-500002)
On Monday, February 7, an Illinois Circuit judge ruled in favor of parents and school staff who sought a temporary restraining order against emergency rules adopted by the Illinois Department of Public Health (IDPH) and the Illinois State Board of Education (ISBE). The emergency rules included masking, testing, and quarantine requirements.
Analysis
This court, like the court in Demetriou v. New York State Dept. of Health, is following a number of decisions around the country asserting that public health authorities need to be explicitly granted by the legislature. This echoes what federal courts refer to as the major questions doctrine. As the Supreme Court said in its recent case invalidating the OSHA vaccination mandate, “‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”
The judge here determined that authority to implement such rules was improperly delegated to ISBE, despite an Executive Order allowing ISBE to promulgate emergency rules as necessary to effectuate the order. “The Court cannot find (nor did any party provide) any law enacted by the State Legislature that grants the IDPH the authority to delegate or transfer its duties and responsibilities to ISBE and local school districts.”
The Illinois judge also indicated skepticism that the emergency rules were implemented in good faith, writing the rules were modified “under the guise of an emergency.” The judge added that COVID-19 has been in existence over one and a half years, making the need to adopt such emergency rules “suspect at best and not in compliance with the law.” Due process and separation of powers were also implicated in the decision.
In response to the court’s holding, Governor Pritzker asked the Illinois Attorney General’s office for an immediate appeal and stay of the judge’s ruling. The emergency request has not yet been granted. In his response, Pritzker maintained that, “masks keep kids safely in school in-person, which we all want. Across the state, the nation, and the world, the evidence is there whether or not you want to look at it. In the moment that we’re in right now, masks are a proven tool; not a new feature of life, but a tool to get us through this time.”
As of Monday, many of the districts named in the case have adopted new "mask-optional" policies. Some canceled classes due to a lack of clarity regarding the ruling, and others moved to remote learning.
January 31, 2022
Demetriou v. New York State Dep't of Health (Index No. 616124/2021)
A group of New York citizens sued to block a state mask mandate ordered by the Commissioner of Health. On Monday, January 24, a state trial judge found health officials lacked authority to enact the mandate without approval of state legislators. The next day, an appellate court stayed the decision, allowing the mandate to stay in place until further deliberation by the court.
Analysis
This is yet another court insisting that public health authorities need to be explicitly granted. The trial judge relied on earlier decisions by the state’s high court in cases relating to tobacco control and measures aimed at sugary beverages to rule that important public health orders require explicit authorization from the legislature. The judge found the mask mandate was not grounded in state law, as no state law explicitly authorized a mask mandate.
This echoes what federal courts refer to as the major questions doctrine. As the Supreme Court said in its recent case invalidating the OSHA vaccination mandate, “‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”
The judge also determined that the mandate did not fall within the bounds of the state Administrative Procedure Act’s emergency rule requirements because there is no emergency, saying “respondents cannot support the ‘emergency’ classification other than to say the Commissioner chose to call it an emergency.”
Background
In March 2020, in response to COVID-19, New York state lawmakers expanded the Governor’s state of emergency powers. In March 2021, lawmakers curtailed these powers, with the result that the Governor could not impose a mask mandate.
In December 2021, the Health Commissioner promulgated a mask mandate, with medical exemptions. The trial judge ruled that the Commissioner exceeded her authority in implementing the mask regulation, writing that, though “there can be no doubt of [their] good intentions,” state health officials lacked the authority to enact the mask mandate without the approval of state lawmakers. Such authority, the court said, is “entrusted solely to the State Legislature.” The judge found plaintiffs would suffer “irreparable harm” if the mandate was to continue.
The next day, nearly two dozen New York school districts made masks optional.
Later that day, an appeals court judge temporarily stayed the decision, allowing the mandate to stay in place pending further review.
Parties presented written arguments in appellate court Friday. Also Friday, New York extended the mandate, which was set to expire February 1, to February 10, at which point it will be re-evaluated every two weeks.