The Mandates Are Gone. Why Is New York State Fighting In Court To Keep Them?

Originally published March 9, 2022

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Last week, as the Democrats pat themselves on the back for lifting their boot off the necks of New Yorkers long enough for the masks to be removed, they surreptitiously filed a brief with the Appellate Court of New York.  The purpose?  To keep the option open that they can “reinstitute masking requirements in schools or any other indoor location if needed.”  As anyone who has paid attention knows, “if needed” depends entirely on the poll numbers, not the scientific necessity. 

This brief was the state’s attempt to overturn the ruling of Supreme Court Judge Rademaker.  The ruling, which was made at the end of January, stated that the mask mandates was “a law that was promulgated and enacted unlawfully by an Executive branch state agency, and therefore void and unenforceable as a matter of law.”

The brief, which was filed on March 2, one day after restrictions in New York were lifted, claims that this ruling affects the state’s “rights and interests.” The issue is not that the state wants to reinstate masking at any time they want; they want the governor to be able to do it single-handedly.

The issue with masking, from a legal standpoint, was not that it was done, but how it was done.  The separation of powers is an incredibly important aspect of American law.  The legislature – in the states and federal governments – have consistently abdicated their responsibilities and given their power over to the executive branch.  In the case of Governor Kathy Hochul, this includes the ability to mask anyone at any time, regardless of scientific need.

The state’s lawyers, realizing that the issue is likely moot because the political science caused Hochul to lift the mandates already, requested that Rademaker’s judgment should be vacated because it impairs the “ability to respond quickly and effectively to the still-ongoing and oft-evolving COVID-19 pandemic.”  This is, frankly, ridiculous on its face.  The argument essentially is that unless masks are mandated, people won’t wear them if case rates spike.  By statistical data taken over the past few years, the opposite is true.  People can, and do, choose to take extra precautions when there is a need for them in their area.  However, Hochul and Attorney General Letitia James believe that unless they force you to wear a mask, no one will.

The state also lies about the need for masks in its brief.  “The pandemic has also taken a toll on the physical, mental, and emotional health of children,” it says. “The highly transmissible Omicron variant caused a seven-fold increase in pediatric COVID-19 cases that require children to be hospitalized.” The state ignores the findings of its own data that showed that nearly half of COVID hospitalizations in New York were “with” COVID, not “from” COVID.  The distinction is important.  If a kid needs stitches and goes to the hospital, they could get a positive COVID result from him, regardless of symptoms.  That is not a case of going to the hospital because of COVID, yet it counts in the statistics.  

The state also touts the effectiveness of masks, and uses debunked science to do it.  “A mask reduces the wearer’s discharge of virus-laden droplets,” the brief claims, despite the fact that far more case spread occurs because of airborne transmission, which most masks are completely ineffective at preventing.  This has been the case since Omicron became the dominant strain in New York, and the brief itself admits that 99% of positive COVID cases are Omicron.

The state also pushes useless “studies” to make a convincing argument. “For example, a study conducted from July through September 2021, concluded that “[c]ounties without school mask requirements had larger increases in COVID-19 case rates after the start of school compared with counties that had school mask requirements.” Firstly, July through September is summer, when schools are closed.  Secondly, Omicron didn’t appear until November, and that strain demolished any prior argument for masking.  Citing that study is a clear obfuscation of the relevant facts.  

The state also ignores the massive increase in speech-related issues in young children when they argue that “there are no significant adverse effects of mask-wearing for most healthy individuals.” At the same time, they claim that there are possible unknown long-term effects that COVID can have.  They ignore a lack of data when it suits them, but cling onto a lack of data when they can as well.

The importance of this case cannot be understated.  The courts are deciding the limitations on executive power in this state.  If anyone enjoyed the past few years of restrictions, with zero positive identifiable results, they won’t care if Albany can force them and their families into compliance on a whim.  The rest of us, who want to have some semblance of normalcy returning to our lives, must do whatever we can to ensure that no one person has that amount of power over us again.  The only way to do that is at the ballot box, by electing people who are willing to give that power back to the people of this great state.  

Moshe Hill is a political columnist and Senior Fellow at Amariah, an America First Zionist organization. Moshe has a weekly column in the Queens Jewish Link, and has been published in Daily Wire, CNS News, and other outlets.  You can follow Moshe on his blog,, and 

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