The statewide mask order for Pennsylvania schools does not need to be enacted through the state's system of passing governmental regulations, as state House Republicans had sought, a panel decided Thursday.
The Joint Committee on Documents, an obscure entity that includes of members of Democratic Gov. Tom Wolf’s administration, other executive branch officials and legislative leaders, voted 7-4 that Acting Health Secretary Alison Beam’s Aug. 31 order did not have to be enacted as a regulation.
The committee meeting was required after the House Health Committee voted along party lines to request the review and asked the committee to take it up in a Sept. 14 letter from its Republican chair, Rep. Kathy Rapp of Warren County.
In a statement released after the vote, Rapp said the decision “blatantly ignores our foundational constitutional separation of powers, the rule of law, local control, parental and student rights, and especially individual liberty.”
The order applies to K-12 schools and child care facilities and is designed to halt the spread of the coronavirus.
Had the committee determined the masking order needed to be promulgated as a regulation, it would have ordered the Health Department either to go through the complicated process of establishing it as a regulation within 180 days or to stop using the order at all.
The joint committee’s chairman, Pennsylvania Legislative Reference Bureau Director Vince DeLiberato, said he voted against upholding the order but would have kept it in place for six months while a formal regulation is developed.
“I cannot stand for the proposition ... that this committee can shut down an emergency order today,” he said.
The hearing came a day after a state court heard argument in a pair of lawsuits challenging the order, including one filed by Senate President Pro Tempore Jake Corman, a Centre County Republican. The status of Beam's order as a regulation is also an issue in those cases.
Opponents of leaving Beam's order in place as it is said they were concerned about the fact that the order does not have an end date and said they doubted existing law gives Beam the authority she exercised.
“This is a limitless order, and I think that's problematic,” said lawyer James Kutz, representing Rapp at the hearing.
Health Department lawyers said that Beam took action in face of the pandemic's wide effects and that her order is meant to implement an existing regulation.
“The limitation is the disease,” said Health lawyer Kevin Hoffman. “And unfortunately the disease has tremendous reach.”
The committee's decision can be appealed to Commonwealth Court. House Speaker Bryan Cutler, R-Lancaster, who voted to make it go through the regulatory process, said a decision about the appeal has not been made.
“I think it's quite clear that the order as written impacts everybody, it impacts everybody uniformly and is generally applied as a law because it does have penalties tied to it,” Cutler said afterward.
