Pa. regulatory panel upholds Wolf’s school mask order; eyes turn to courts

‘Executive overreach should be challenged when it occurs,’ Pa. House Speaker Bryan Cutler said

By: - October 21, 2021 12:57 pm

Masks and temperature checks will likely be the norm for many U.S. school-going kids until a COVID-19 vaccine is authorized for children under age 12 (NurPhoto/Getty Images).

*This story was updated at 3:35 p.m. on Thursday, 10/21/21 with comment from the Wolf administration.

A Pennsylvania legislative panel affirmed Gov. Tom Wolf’s school mask mandate on Thursday morning, 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.

If the panel had ruled against Wolf and the Department of Health, they would have had to reissue the order through the state’s rulemaking process, which would likely take months to reimplement.

In an email, Wolf spokesperson Elizabeth Rementer said the administration was pleased with the committee’s ruling, and argued the mask rule will help keep schools open for in-person learning.

“This is again a perfect example of Republicans in the legislature wasting time and being unhelpful,” Rementer said.

With the committee’s vote, further challenges to Wolf’ masks order must be brought to court.

Speaking after Thursday’s meeting, House Speaker Bryan Cutler, R-Lancaster, who sits on the Committee on Documents, said he was disappointed in the outcome. But he did not say if House Republicans were planning legal action. 

The school mask order, Cutler added, was another example of Wolf abusing his gubernatorial powers during the pandemic — a fight that has animated the last year and half of relations between the GOP-controlled legislature and Wolf.

A similar challenge spearheaded by Senate President Pro Tempore Jake Corman, R-Centre, and a conservative law group that tried to undermine the results of the 2020 election, is already working its way through the courts. The Commonwealth Court heard those arguments on Wednesday.

“Executive overreach should be challenged when it occurs,” Cutler said.

At first, Wolf said he’d allow all 500 of Pennsylvania’s school districts to make their own decision on masking. 

But on Aug. 31, flanked by Wolf, acting Secretary of Health Alison Beam issued the order, citing her authority under the 1929 law establishing the Health Department, and a 1955 law on disease control. 

Since then, the issue has been a political hot potato in Harrisburg. Republicans who control the state House cut short their summer vacation to address it. Over the objections of the chamber’s Democrats, they passed a resolution asking the Committee on Documents to rule on the order, but did not call up a floor vote on masks due to internal dissent.

House Republicans punt on school masks vote after returning early to address it

Vince DeLiberato, chair of the committee and the director of the Pennsylvania Legislative Reference Bureau, argued that Wolf and his agencies were within their powers to issue an “ad hoc response” to rising COVID-19 cases among school age children. 

However, such an order should only be used temporarily, DeLiberato added, as state law also allows for emergency rulemaking to quickly implement new, far reaching policies in case of disasters.

“An ad hoc response, I believe, cannot be converted into a permanent policy,” DeLiberato said.

He was in the minority that voted to reissue Wolf’s policy, and pressed for the Department of Health to still move forward with rulemaking to allow for public safety and follow the proper process with public input.

The committee’s decision could feed Republicans’ push to change state public health law. Cutler added that discussions changing the state’s public health laws were ongoing.

Wolf vetoed a bill to restrict the health secretary’s  ability to respond to health emergencies in July. Republicans have since floated restricting the cabinet secretary through constitutional amendments, which do not require Wolf’s signature.

Compared to 2020, there are nine times more cases of COVID-19 among children ages 5 to 18, according to the Department of Health. Since the start of the pandemic, eight people under the age of 18 have died.

Wolf signaled earlier this month he’d end the mask mandate once kids under 12 can be vaccinated. Federal approval for such a vaccine is pending.

In November 2020, Wolf administration officials said they would not mandate the COVID-19 vaccine for students.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is the Capital-Star's House reporter. He previously covered Pennsylvania state government for The PLS Reporter. You can reach him at 845-891-4306.

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