The Legality of the “New Normal”: A Challenge to New York’s Mask Mandate

Introduction

As the Coronavirus swept across the country, Americans and the world alike were forced to face a new normal. This new reality was a world of quarantining, social distancing, contact tracing, and most lifestyle altering of all, masking. Federal, state, and local governments alike instilled mandates that required people to wear masks under specific conditions. Some Americans have accepted these mandates as part of their daily lives, understanding that they are a necessary tool to stop the spread of the Coronavirus, while others have challenged the government’s authority to promulgate and enforce such mandates.

Case

This debate is demonstrated in the case of Demetriou v. New York State Department of Health (2022). This case was presented before Judge Thomas Rademaker of the Supreme Court of Nassau County. In this case, the petitioners sued the New York State Department of Health, the Public Health and Health Planning Council, the Commissioner of Health of New York, and the Governor of New York on behalf of all minor school children and others who are similarly situated. They claimed that Governor Kathy Hochul’s endorsement and enforcement of the New York State mask mandate,10 NYCRR §§ 2.60; 2.60(a), is not “a permissibly enacted rule” and is “null and void as a matter of law, improperly enacted, constitutionally impermissible, violative of their conditional rights, and unenforceable.”[1] Judge Rademaker made it clear that he was not ruling on the efficacy of the masks, but only if the mask mandate was properly enacted and enforced.

Ultimately, the court ruled that 10 NYCRR §§ 2.60; 2.60(a) was void and unenforceable since it was “promulgated and enacted unlawfully by an Executive branch state agency” on January 24, 2022.[2] The court determined that the Department of Health (DOH), the Governor, and the Commissioner lacked the statutory authority to issue the mandate since no statute authorized them to do so. Judge Rademaker even ruled that 10 NYCRR §§ 2.60; 2.60(a) violated the State Administrative Procedure Act. This act sets the standard for the procedures of administrative agencies and the state to propose regulations, arbitrate disputes, and provide for judicial review for agency decisions.[3] The Court reasoned that the DOH did not have a justification for issuing the mandate on their claimed basis of a “state of emergency.”[4]

Appeal

The petitioned parties filed for a stay on an appeal. When brought before the New York State Appellate Court, the court granted a stay. In order to obtain a stay, the appealing party must demonstrate “(1) irreparable injury in the absence of a preliminary injunction; (2) a favorable tipping of the balance of equities; and (3) a likelihood of success on the merits of the appeal.” [5] The court reflected on several studies that proved that masks are efficient in preventing the transmission of COVID-19.[6] They reasoned that since masks are an effective tool in preventing the spread of Coronavirus, there will be an irreparable injury to New York’s residents as a result of not enforcing mask mandates. Furthermore, the court rationalized that there is no evidence that mask wearing causes any adverse health issues, meaning the petitioners will not suffer harm from the mask mandate. Since the petitioners will not suffer from wearing masks, but the people of New York could experience irreparable injury as a result of getting rid of the mask mandate, the court determined that there is a favorable tipping of the balance of equities for a mask mandate. Finally, the court reasoned that the appeal will likely be successful since the decision in this case contradicts the decisions of other courts that have upheld the same regulation and directive.[7]

Conclusion

The legal challenge to New York’s “new normal” was unsuccessful for the petitioning parties, but it did affirm the state’s power to instill mask mandates. Although the stay was granted, New York State’s “new normal” may be changing once again. On February 9th, 2022, Governor Hochul announced that the statewide indoor business mask-or vaccine requirement will be lifted starting February 10th, but businesses, local governments and counties still have the option to make their own rules on masking.[8] With new guidelines in place, time will only tell what the legal landscape that will challenge or affirm the “new normal” will look like.