by John L. Micek, Pennsylvania Capital-Star
November 10, 2021
A Pennsylvania Commonwealth Court panel has voided the Wolf administration’s mask order for K-12 public schools, ruling that acting state Health Secretary Alison Beam overstepped her authority by not going through the usual regulatory channels, and declared it “unenforceable.”
(*This story was updated at 12:45 p.m. on Wednesday, 11/10/21 to reflect that the decision was made by a five-judge panel. It was updated at 1:19 p.m. with comment from the Wolf administration and Senate Republican leaders.)
Writing for the court in a 31-page ruling, Judge Christine Fizzano Cannon said that if the order were allowed in place, it would “be tantamount to giving [Beam] unbridled authority to issue orders with the effect of regulations,” in contravention of existing state law and the absence of a gubernatorial emergency declaration.
The appellate court heard oral arguments earlier this month in a pair of challenges to the order, which Beam said she was allowed to impose based on the 1929 law establishing the state Health Department, and a 1955 infectious disease law.
Senate President Pro Tempore Jake Corman, R-Centre, state Rep. Jesse Topper, R-Bedford, and a group of parents filed one of the lawsuits, arguing that no regulations related to masking have passed. In their suit, they also accused Gov. Tom Wolf and his administration of trying to do an end-run on the constitutional changes that curtailed the governor of some emergency response power.
Beam and the Wolf administration have argued that the mandatory order, which includes exemptions, was enacted amid rising COVID-19 cases in K-12 schools. Many Pennsylvania schools did not have required masking policies for the 2021-22 school year, and state health officials say masking, paired with layered mitigation efforts, is the best way to keep schools open for in-person instruction, the Capital-Star previously reported.
While remaining silent on the science behind masking, as well as the sharp-elbowed partisan politics of the debate, Fizzano Cannon found that the “purported authority cited by the Acting Secretary in the Masking Order does not convey the authority required to promulgate a new regulation without compliance with the formal rule-making requirements of the Commonwealth Documents Law and the Regulatory Review Act.”
Last month, an obscure regulatory panel upheld the administration’s order, ruling that the Democratic governor had properly implemented it under his administration’s existing powers.
The seldom used, 11-member panel, known as the Committee on Documents, is made up of lawyers, legislators, a cabinet secretary, and a representative from Attorney General Josh Shapiro’s office. It has a final say on what is, and is not, a regulation.
The committee decided 7-4 to uphold Wolf’s K-12 mask order, which requires all students, teachers and staff to wear masks while inside school buildings, regardless of their vaccination status against COVID-19. The order applies to public and private schools alike, as well as pre-school, the Capital-Star previously reported.
In a statement, the administration said Beam’s “authority is clearly outlined in existing law,” and that the “Department of Health has directed counsel to file an appeal today. Filing of the appeal will immediately stay the Commonwealth Court’s decision.”
In a joint statement, Corman, and Senate Majority Leader Kim Ward, R-Westmoreland, praised the court’s decision, saying it had “made the right decision by empowering parents to be part of health and safety decisions for their kids. The law is clear in this case. The Acting Secretary of Health does not have the authority to create new rules and regulations out of thin air.
“Today’s ruling validates what we have said all along – mask decisions should be made by parents and school boards, NOT unelected bureaucrats. A blanket mandate does not address the unique needs and circumstances of individual communities, and it takes power away from the people who are in the best position to protect our kids,” the lawmakers said.
Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor John Micek for questions: firstname.lastname@example.org. Follow Pennsylvania Capital-Star on Facebook and Twitter.