PHILADELPHIA (KYW Newsradio) — A group of business owners and residents filed a lawsuit over the weekend in Commonwealth Court to halt Philadelphia’s renewed indoor mask mandate. A Villanova University law professor says the petitioners have a reasonable chance of winning their argument.
The Department of Public Health reinstated enforcement of the mask mandate on Monday in an effort to get in front of a potential wave of COVID-19 infections and hospitalizations driven by an omicron subvariant.
And Monday’s update from city health officials seems to bear out those concerns. New cases have risen 50% in the last week, now averaging 224 a day, and hospital cases have nearly doubled, from 46 to 82.
Health Commissioner Dr. Cheryl Bettigole said the decision was based on local standards, not those of the CDC, which considers the level of community spread in the city to be “low,” and does not explicitly recommend indoor masking for most people.
In doing so, the lawsuit alleges, city health officials have “usurped the power and authority” of state lawmakers, the Pennsylvania Department of Health, and the state advisory health board.
Tom King, the attorney behind the lawsuit, calls Philadelphia a “renegade operation,” saying what the city is doing is not permitted under state law or the city charter, alleging that the city has no authority to implement standards stricter than those of the CDC.
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“I guess I would say they at least have a shot. Sure,” said Villanova law professor Michael Moreland. “It’s a question of what authority is the city acting under.”
Moreland says a judge will have to weigh the “non-delegation doctrine,” answering the questions: What authority does Philadelphia have to make the mask mandate decision? And does it exceed the authority delegated by the state General Assembly?
“And then there is a more subsequent issue under that, which is: Are they following the best guidance that the CDC and other health authorities are giving them? And are they acting contrary to that in reimposing a mask mandate?”
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Moreland says courts have been fairly deferential to public health authorities since the start of the pandemic, figuring that they were in the best position to make decisions about COVID-19 mitigation. However, he says, in the last several months, that has begun to change.
“There has been some pushback, to be sure,” Moreland said. “And we even saw that at the state level, here in Pennsylvania, with the change to the Pennsylvania constitution that was passed in the election last year — to put more restrictions on the governor’s ability to impose these kind of emergency declarations.”
“Courts are a little more willing, sort of, to scrutinize the authority with which state and local governments are acting,” he said.
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According to the filing, the petitioners are asking for the city's original March 2020 emergency declaration to be declared unconstitutional from the start. Moreland says the petitioners are trying to demonstrate that the emergency declaration is no longer necessary and, with it in place, city officials have the power to do things that no longer require emergency action.
“It's a way of not only addressing the narrow issue of this mask mandate, but also saying that a lot of other things that the city is doing are no longer necessary and that the presence of this emergency declaration is giving way too much authority to the mayor and other city officials to do things that are no longer taking place in the context of an emergency,” Moreland said.
King says it could be days or weeks before the suit gets in front of a judge, but he hopes Commonwealth Court will expedite the case.