3 Branches of Government
Branch Breakdown (minus the judicial)
Legislative Branch - MAKES THE LAW. Two houses. One house is the Assembly, the other is the Senate. All representatives are elected by a majority vote. Representative, is the operative word here. Our voices are, in theory, heard through our elected representatives. Collectively, this branch is referred to as the legislature.
Executive Branch - EXECUTES THE LAW. A Governor is head of the executive branch. Also, elected by a majority vote. Except when there is a vacancy. Then the Lt. Governor automatically becomes the Governor. Hence, Hochul.
Where This Mandate Thing Comes From & Why It is Unlawful
Once upon a time, the legislature created the Public Health Law. There are 50 Articles in the Public Health Law. As part of the law, they created an agency called the Department of Health. The DOH and all of its power come from the legislature. Article 2 deals with the Department of Health. In it, the legislature created an advisory committe called the public health and health planning council("PHC"). The PHC, through a majority vote, and approval by the Commissioner, may establish, amend, and repeal sanitary regulations known as the sanitary code of the State of New York. Regulations have the full force and effect of law, but they are not laws. And there are limitations. The PHC cannot just do whatever they want in the name of protecting the public health.
In addition, the legislature enacted the State Administrative Procedure Act ("SAPA") as oversight to the rule making process. SAPA requires administrative agencies to follow specific procedures before they make rules. Traditionally, the agency has to allow a period of public comment prior to making a rule. Why? To give us, the people, an opportunity to participate in the democracy we consented to. Sometimes though, an agency must make a rule in an emergency situation. In a true emergency, they don't have the time to wait for public comment. Therefore, emergency regulations bypass the public commenting period. In August 2021, Hochul directed the PHC and Commissioner make a new rule in the sanitary code. Guess what the rule was? You got it, masks in schools. They claimed an emergency existed, bypassed the public comment period, and changed the sanitary code. BUT they did not actually change the sanitary code to mandate masks. See
That's right. You're eyes are not deceiving you. They did something worse. Instead of adding rules in the sanitary code itself, they expanded the Commissioner's power to make rules. They gave the Commissioner the power to dictate mandates whenever, and however, she determines. Zucker's determination in August, and Bassett's determination in December, are the actual mandates. Do you see the issues?
Some of the issues
As Constituional scholars now, you know that the branches can only do what the Constitution allows. You also know that the legislature created the Department of Health, and therefore the DOH can only do what the Legislature authorizes it to do. The first problem is that the legislature did not give this little advisory committe, that is overseen by the Commissioner, the power to give itself more power.
The second problem is that Hochul exceeded her authority. She executes the law, she does not make it too. Furthermore, she has no power to issue mandates through executive orders. Which is why there was no executive order. Instead, she brazenly directed the DOH to do, what she could not do through an executive order. The result is the same though.
The third problem, is the problem; tyranny. The Commissioner is no more than Hochul's appointed figure head. The Governor could command us, under the cloak of legal authority, to do whatever she believes is "in the interest of public health". At any time, the Commissioner could make a "determination" to impose heightened restrictions. The reason(s) for it don't matter. Then the determination becomes binding; with the full force and effect of law. Put simply, the Governor created a work around the law, to issue directives through the Commissioner and DOH.
But we already know that Hochul has used this work around. It is not hypothetical. But it can get much worse.
The Sanitary Code
For anyone interested, below is a summary of some relevant portions from the sanitary code. Does it seem to authorize controlling 19 million people? No, it doesn't.
- establish regulations for the promotion of health in any or all Indian reservations.
- establish regulations for the maintenance of hospitals for communicable diseases.
- set forth the diseases for which specimens shall be submitted for examination to a laboratory approved by the department.
- designate the communicable diseases which are dangerous to the public health.
- establish regulations defining the methods and precautions to be observed in disinfecting, cleansing or renovating premises vacated by persons suffering from a communicable disease.
- establish regulations in respect to ionizing radiation and nonionizing electromagnetic radiation except in relation to special nuclear materials...