As has been widely reported in the news last night, a Long Island Supreme Court justice (and that would the equivalent of a superior court judge in California or a district court judge in Texas) barred the enforcement of the NY Governor’s mask mandate for schools.

BUT THAT’S NOT THE INTERESTING PART

After the judge issued the order, the NY State Department of Education issued a statement to NY schools to disregard the judge’s order. There were reports that the order had been stayed, perhaps automatically by an appeal of the order. Except that there is no such thing as an automatic stay for an appeal of an order like that. Further, as far as I can tell, an appeal had not even been filed when the NY DOE made its statement.

I have heard that today, January 25th, the state has filed an appeal, and presumably, they will quickly seek a stay of the order. Many school districts are complying with the judge’s order by not enforcing the state masking requirements. A few are only loosely enforcing compliance.

It seems that previously another Supreme Court justice in Albany had refused a similar preliminary injunction request, but you only have to win with one judge.

I think we will know within the next few days whether or not the Governor’s order will be stayed by the Appellate Division.

So what is the basis of the injunction and what does it portend for other cases like vaccine mandates?

Like with the recent federal mandates decisions (OSHA and CMS/Medicare and Medicaid providers), the issue is whether the executive branch has the authority to issue mandates under the government’s constitutional or statutory authority. Or, whether that authority rests with the legislature. The Long Island judge held that the governor and her executive branch exercised power she did not have.

What these cases are not:
They are not broad sweeping decisions on the personal freedom rights of people versus the government. But of course, you fight the battles you have to fight as they arise. So, for those opposed to a school mask mandate, a W is a W.

But what these cases probably signify:

This is another example of pushback against one elected politician’s ability to dictate the behavior and health practices of millions of people without any legislative oversight. I think the courts are increasingly rejecting these actions. More so as the pandemic continues, and even more so, if the pandemic abates, and these restrictions on personal actions are not quickly removed, as for example is happening in England now. (England has removed almost all mandates.)

What effect will this have on actual vaccine mandates?

As all you Californians know, Senator Pan is back and is about to drop his bill adding the COVID vaccine to the mandatory vaccine schedule. A companion bill allowing kids as young as 12 to get the vaccine without their parents’ consent.

As indicated, I don’t think these cases have any direct impact on the legality or constitutionality of adding the COVID vaccine to the mandatory vaccine schedule.

For the worse, (and not even the better and worse), legislative based vaccine mandates are judged by state police power jurisprudence a/k/a the Jacobson line of cases, passing through the SB 277 challenges (Brown, Love, and the other one), and ending with some recent and Supreme Court cases or hints about how the justices think about this line of cases, based on cases not quite on point situations.

What concerns me most is that it is now abundantly clear that the covid vaccines are only effective for around 6-8 months at most. Israel has now authorized a fourth dose. Here, there is a constant drumbeat for a booster. Is this going to turn into a flu-type situation with a yearly mandate? I am sure that is what many of you are worried about. That seems like a line in the sand that might even garner some needed Democratic support. (I assume that the pro and anti covid vaccine mandate votes will be pretty much on straight party lines.)

Another one might be to bring back the titers/past infection exemption given the recent strong data that for Delta at least, Natural immunity was three times more effective than the vaccine. I’ll be doing a post (actually a Youtube vlog, maybe with a live chat) on that study shortly.

More when Senator Pan’s bill is dropped. (the bill was dropped last night at 9:00 PM, but I hadn’t seen it when I wrote this post. here it is. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB871&fbclid=IwAR3-NeM7wkrbVlE56BM5QLl-N7pi6nwLeKT6SmMRUfBrcTBwsNSeX7J7TV4

Rick Jaffe, Esq.