Governor Hochul’s cloth crusade has the same ‘work-around’ flaw as Biden’s OSHA order.
Governor Hochul’s cloth crusade has the same ‘work-around’ flaw as Biden’s OSHA order.
A s our Michael Brendan Dougherty recounted Tuesday, confusion abounded Monday over the ramifications of a ruling by a state judge in Nassau County, which invalidated — however fleetingly — the New York mask mandate. Judge Thomas Rademaker’s six-page decision stemmed from a challenge to the mandate’s draconian application to children aged two and up.
Much of the confusion was sown, willfully it appears, by the authoritarian progressives who run the Empire State’s administrative state — in this instance, the Department of Education, which was leaping to the defense of its fellow technocrats in the Department of Health (and, derivatively, Kathy Hochul, the state’s accidental governor).
Judge Rademaker’s ruling has since been lawfully stayed. Yet, it was not stayed at the time the state agencies were claiming it was. It is always that way with Leviathan: Bank on the mind-numbing process being exploited. Bureaucrats — education, health, climate, wetlands, thought, etc., etc. — know they’ve conditioned people to believe that nothing ever happens quickly and that no one is big enough to take on the state. They have no compunction about because-I-say-so assertions that an administrative rule remains in effect, even if a court has ruled it infirm. They figure you benighted masses will assume that the wheels of some abstruse administrative process are slowly grinding and, therefore, that you’d better just comply if you know what’s good for you. By the time the masses realize they’ve been had, if they ever realize it, we’re five new controversies down the road.
In this instance, while the state Education Department was deceptively claiming that Judge Rademaker’s ruling had been stayed, Letitia James, the state’s progressive Democratic attorney general, was seeking a stay. It was granted by an appellate judge . . . but not until late Tuesday afternoon. In the interim, the state’s weird duck of a governor (MBD has that nailed, too), who is becoming a more progressive Democrat as she seeks to be elected (the recently Peter-Principled former lieutenant governor calls it “re-elected”), was insisting that Judge Rademaker’s ruling would not stand.
You may notice that, to this point, I have not described the courts involved. That’s because, this being New York, doing so adds further confusion to the mix. But here goes.
The state’s lower court is called the “Supreme Court.” Judge Rademaker is thus a Supreme Court judge. His is an elected position. Running as a Conservative Party candidate in Nassau County on Long Island, which trends more right-leaning than most of the state (a low bar, to be sure), Rademaker was elected to a ten-year term in 2014. Appeals from state Supreme Court rulings are directed to the Appellate Division, which has four “Departments.” Its judges are appointed by the governor. Appeals from Nassau County go to the Second Department, which is headquartered in blue, blue Brooklyn. There sits Justice Robert J. Miller, a Democrat appointed by former governor David Paterson (the Democrat who inhabited the governor’s mansion before the Democrat after him resigned in disgrace, but after the Democrat before him resigned in disgrace). At the conclusion of a “for appearances’ sake” hearing that took about a half-hour, Miller stayed Rademaker’s ruling.
This temporary stay will remain in place while the case crawls along the appeals process. Depending on what happens in the Appellate Division (gee, wonder what that will be . . .) the case could be appealed to the state’s highest judicial tribunal, the Court of Appeals (which, in New York, has supremacy over both the “Supreme Court” and the appeals court, a.k.a the “Appellate Division”). Its seven members — the chief judge and six associate judges — are appointed to 14-year terms by the governor . . . and the current incumbents are, naturally, appointees of Andrew Cuomo.
Enough said. And don’t worry, there is no test on your recall of the above — and certainly no math! Rest assured in any event that somewhere ’neath this morass, there must be a “Grand High Exalted Mystic Ruler” and They/Them is undoubtedly a bureaucrat.
Are we clear? Good.
Now, just for guano and giggles, let’s suspend disbelief and pretend that the law — remember that? — has some attenuated connection to all this theater. Were that the case, we wouldn’t need to strain our brains if we paid attention to President Biden’s OSHA vaccine mandate. This is the Empire State version of that federal constitutional controversy.
A good deal of reporting, as well as such Republican critics as Congresswoman Elise Stefanik, refer to the subject of the dispute as Governor Hochul’s mask mandate. Not true, at least not technically. At issue is a state Department of Health rule, not a gubernatorial executive order.
As a matter of law, Hochul is impotent to issue a mask mandate. Nothing in New York’s state constitution empowers the chief executive to decree such mandates. Separation-of-powers principles theoretically apply to the three branches of state government the same way they apply to the federal government under the U.S. Constitution. A “mandate” is a law, and laws have to be enacted by the legislature. The governor and the sprawling bureaucracy (the state’s administrative state) may promulgate rules if the legislature delegates that authority; but they are confined to what the legislature has authorized them to do — they may not go beyond it.
It is not enough to say the state legislature has not empowered Governor Hochul to issue a mask mandate. In the initial months of the Covid pandemic, then-Governor Cuomo issued numerous mandates, rationalizing that public health required them, and statutory emergency authority authorized him to decree them. But between Cuomo’s reckless directive ordering nursing homes to accept Covid-infected patients and his hands-on (ahem) supervision of female staffers, state lawmakers came under increasing pressure to impeach him. As most of them were Cuomo cronies, they groped — uh, let me rephrase — they struggled for ways to emote their disgust without, you know, actually doing anything. One such exhibition was legislation that curtailed the governor’s ability to issue emergency decrees.
Good show! Except for the inconvenience that, as a matter of law, it was not a show; it was binding legislation. After Cuomo was cashiered, the Accidental Governor replaced him, and . . . Omicron happened.
As we’ve already recounted, not content with hitting the lottery once, Hochul wants to be “re-elected.” New Yorkers, like most Americans, may be fed up with inept pandemic governance, but politically speaking, New York is a Democratic-machine state, increasingly run by hard-Left progressives. They will heavily influence the determination of a nominee. It is progressive dogma — The Science notwithstanding — that cloth masks protect us from microbes. So if the Progs want masks, Hochul says, “Let there be masks . . . on everyone . . . on pain of listening to more of my speeches.”
But see, she can’t say that actionably because the legislature swiped that power from her predecessor. Meaning she needs . . . yes . . . wait for it . . . a work-around.
That’s what White House chief of staff Ron Klain touted, remember? President Biden wanted to issue a national vaccine mandate, but even this White House — having already been slapped down by the Supreme Court — knew that wouldn’t fly. So what to do? The administration’s legal beagles scoured the statute books and the Code of Federal Regulations that set out each administrative agency’s authority. The point, as the strangely guileless Klain revealed, was to come up with a “work-around” — a patchwork of enabling statutes and rules that spell out what administrative agencies such as OSHA are authorized to do, and which those agencies and executive-branch lawyers then stretch to the breaking point (and beyond) in order to rationalize whatever they want to do. Thus did the Biden administration attempt, in futility, to convince the high court that OSHA’s enabling statutes authorized it to promulgate a workplace rule requiring Covid vaccinations (or alternatively regular testing, designed to be so burdensome that people would see vaccination as the only practical option).
That is what New York is trying to do. Bereft of the necessary emergency authority, Hochul had the lawyers scrutinize the array of state health statutes and regulations in order to mine some that might plausibly be seen as authorizing the Health Department to issue its mask rule. As Judge Rademaker concluded, they don’t. Since there is no statutory authorization, the rule must be seen as law making rather than a mere application of existing law. The Health Department has no power to legislate. Ergo, Rademaker ruled, the rule violates New York’s constitution.
So, it’s essentially the same case as OSHA. But just as a fly ball down the right-field line may be the same thing at Fenway Park and Citifield, that doesn’t mean it will have the same result. In New York’s courts, as we reach the rarefied ranks, progressivism rules. As the Supreme Court’s opinions in the two Biden mandate cases illustrate, progressive jurists can be relied on to uphold administrative power if it is being exploited by a Democratic administration. Such quaint niceties as separation of powers and statutory provisions must not be permitted to obstruct administrative experts who are just selflessly trying to do the right thing to save lives. Oh, and let’s not forget, science!
There is no masking that . . . except in New York.