Legal experts say Wolf administration has authority to issue mask mandate

Republican leaders in Pennsylvania said Tuesday that in issuing a school mask mandate, Gov. Tom Wolf and his administration are trying to circumvent the will of the people expressed through the passage in May of a constitutional amendment.

Legal experts said that the emergency powers amendment approved by voters in the 2021 primary election does not apply to the order issued Tuesday.

“If you don’t declare an emergency, you aren’t using the governor’s emergency powers,” said Duquesne University law professor Bruce Ledewitz. “You’re not getting around the constitutional amendment. The amendment is irrelevant.”

On Tuesday, Acting Health Secretary Alison Beam announced that, beginning on Sept. 7, all students in public and private schools, K-12, and preschool, will be required to wear face masks inside. The measure is to prevent the spread of covid-19, which has been surging in recent weeks because of the delta variant.

The announcement was followed immediately by Republican legislators condemning the move.

“The people of Pennsylvania spoke back in May when we said ‘no’ to more edicts from this governor,” said Rep. Ryan Warner, R-Perryopolis. “Sadly, Gov. Wolf’s arrogance has again reared its ugly head with today’s masking announcement. He is intentionally dodging the constitutional amendments approved by voters and is instead circumventing the process by using the secretary of health’s authority to issue a statewide mandate on masking – an issue that only weeks ago he stated should be decided at the local level.”

Senate Majority Leader Kim Ward, R-Westmoreland, concurred.

“Let’s not forgot, three months ago, the people of Pennsylvania voted to limit the executive branch’s unilateral control of emergencies,” she said in a statement. “Yet today, Gov. Wolf has opted to circumvent the general assembly, by broadly applying the Disease Prevention and Control Law of 1955, even after he received input contrary to his position.”

However, Tina Batra Hershey, a professor of health policy and management at the University of Pittsburgh School of Law, said that Wolf is not invoking his emergency powers.

“We are no longer under a disaster declaration,” she said. “That is not what’s being invoked in this current face covering order.”

The constitutional amendment, which passed with nearly 52% of the vote statewide, changed existing law so that a disaster emergency issued by the governor automatically expires after 21 days unless the general assembly takes action to extend it.

“The amendment is very specific,” Ledewitz said.

Wolf said the same during Tuesday’s announcement.

“Let me just be clear: This is not coming from an emergency declaration on my part,” Wolf said. “This is coming from (a 1929 law) that gives the Department of Health the ability to look at the general health and welfare of our schools, including cafeterias, cleanliness of classrooms, all that kind of stuff. This is part of the power that exists there, and this order is coming from the Department of Health.”

The administration cited the Disease Prevention and Control Law of Pennsylvania’s 1929 administrative code, as well as the Department of Health’s regulations relating to disease control measures.

Under the 1929 code, the department of health has the duty to “protect the health of the people of this commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease.”

Under disease control measures regulations, the department may take “any other disease control measure [it] considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect from the spread of infectious agents.”

Batra Hershey said the health code being cited is broad and likely supports the administration’s order.

“It’s typical public health authority the Department of Health has,” she said. “Whether judges agree with me is something else. It’s playing out differently across the country.”

The governor expected pushback.

“I’m not expecting everybody in the general assembly to be pleased with this, but I think everybody recognizes this is a difficult decision that has to be made, and I applaud the secretary of health for making it, and I think they will too,” Wolf said.

He does not believe the legislature has the ability to overturn the order.

“I would think that if a state can’t do this, if a community can’t do this, then what justification is there for setting up stop signs or traffic lights or traffic rules or other rules of safety,” Wolf said. “I think one of the reasons government exists is to protect us, protect our community, protect our neighbors – our society. And that’s simply what this is intended to do.”

While the amendment was designed to reign in the extraordinary powers given to the governor under an emergency declaration, Ledewitz said the order issued Tuesday is a simple matter of administrative law.

“This is a health issue in the schools,” he said. “The secretary has authority under the health act.”

Staff writer Megan Guza contributed to this report.