Wolf must appeal ruling overturning mask mandate
Why bother, I thought, when Gov. Tom Wolf ’s administration appealed Wednesday’s court opinion overturning Pennsylvania’s school mask order.
Only two days earlier, Wolf said his administration anticipated ending the mask requirement on
Jan. 17. He said it would be up to school districts to decide whether to require masks after that date.
With the holidays looming, the appeal of Wednesday’s Commonwealth Court ruling might not even be decided by then.
Just let it go, I thought.
But then I thought better.
The Wolf administration must challenge the ruling because it must protect the authority of the state health secretary.
The governor has to ensure future health secretaries can take actions to protect people during public health emergencies.
While I oppose Wolf ’s statewide school mask order — I believe that decision should be left to school districts — I respectfully disagree with the court’s opinion.
If a health secretary can’t take action to protect the public during a pandemic, why even have a health secretary? Or an infectious disease law?
“The secretary of health’s authority is clearly outlined in existing law,” Wolf spokesperson Beth Rementer told me Thursday.
The court overturned the mask order based on a lawsuit filed by parents, schools and two Republican lawmakers, including Senate President Pro Tempore Jake Corman, who sued as parents.
They argued the order from acting Health Secretary Alison Beam was issued without statutory authority, as the state no longer is under a gubernatorial disaster declaration. They argued the law does not allow the secretary to require healthy people to take action; only those who are sick or have been exposed are subject to rules, such as quarantines.
They also argued the order was a regulation that should have gone through the state’s formal regulatory review process, which can take many months.
Democrat Wolf ’s administration argued the order was not a regulation and was allowed under several laws, including the state’s infectious disease law.
Four of the five Commonwealth Court judges who heard the case said Beam didn’t have the authority.
The disease control law “does not provide the acting secretary with the blanket authority to create new rules and regulations ... provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures,” said the majority opinion, written by Judge Christine Fizzano Cannon.
Beam “attempted to issue her own emergency declaration about the dangers of COVID-19 and mutations thereof, including the Delta variant,” wrote Cannon, a Republican.
The judges stressed they were not expressing an opinion about “the science or efficacy of mask-wearing or the politics underlying the considerable controversy the subject continues to engender.”
They dismissed as moot a parallel lawsuit filed by other parents, including a family from the Parkland School District.
The five-judge panel included three Republicans and two Democrats, one of whom dissented. The appeal will be heard by the state Supreme Court, which has a 5-2 Democratic majority.
Last month, the mask order was upheld by the Joint Committee on Documents, an obscure entity that includes members of Wolf ’s administration, other executive branch officials and legislative leaders.
It voted 7-4 that Beam’s order did not have to be enacted as a regulation.
Passing a regulation in Pennsylvania is a lengthy process.
There is a public comment period. Then it goes to the Independent Regulatory Review Commission, which determines whether the regulation is in the public interest. Factors to be considered include economic and fiscal impacts, and protection of public health and safety.
Legislative committees and the state attorney general review regulations after the commission rules.
Timely decisions are required during a pandemic. To require every move by the health secretary to undergo such a review isn’t practical.
That said, the state shouldn’t be issuing universal mandates at this point in the pandemic.
Decisions should be made at the local level. School districts should decide whether to require students to wear masks, just as employers should decide whether their workers should have to be vaccinated.
This case isn’t about masks, though. It’s the latest front in the two-year power struggle over who makes public health decisions during a pandemic.
The Wolf administration must fight for that.