HARRISBURG, Pa. — The mask mandates signed by Department of Health Secretary Dr. Rachel Levine have brought into question how enforceable they are and how the differ from laws and orders.
Daniel Mallinson, an assistant professor of political administration at Penn State Harrisburg tells me a law, mandate and order essentially all have the same power to be enforced, but it's how they came to be that differs.
Mallinson says, a law is passed by the general assembly and signed by the governor. An order and mandate are interchangeable, and are made by the executive branch like a governor or DOH secretary with the power given to them by the legislature.
"It's not the governor or secretary acting unilaterally," said Mallinson. "They've already been given the authority by a law that's been passed by the legislature."
Mallinson tells FOX43 Dr. Levine's power to issue a mask mandate comes from the power given to her by the legislature under the Disease Prevention and Control Law of 1955. Section 5 of that law discusses control measures and says, Upon the receipt by a local board or department of health or by the department, as the case may be, of a report of a disease which is subject to isolation, quarantine, or any other control measure, the local board or department of health or the department shall carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation. The entire Disease Prevention and Control Law of 1955 can be read here.
The State Department of Health also cites PA Code with giving it the authority to take necessary disease control measures to protect the public from spread of an infectious disease. PA Code § 27.60. says; (a) The Department or local health authority shall direct isolation of a person or an animal with a communicable disease or infection; surveillance, segregation, quarantine or modified quarantine of contacts of a person or an animal with a communicable disease or infection; and any other disease control measure the Department or the local health authority considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect the public from the spread of infectious agents. (b) The Department and local health authority will determine the appropriate disease control measure based upon the disease or infection, the patient’s circumstances, the type of facility available and any other available information relating to the patient and the disease or infection. (c) If a local health authority is not an LMRO, it shall consult with and receive approval from the Department prior to taking any disease control measure. The entire code can be found here.
While the Wolf Administration is not enforcing its mask mandate, Mallinson says, they could because a mandate and order have the same effect as a law.
"The law that lies underneath that power that the secretary is using to order masks has penalties built into it and those penalties are enforceable by police, by district attorneys," said Mallinson. "So, there are, there is an enforcement method that is also written into the original law that also accompanies that power."
While some argue a mask mandate is unconstitutional, Mallinson tells FOX43 the mask mandate doesn't strike him as unconstitutional and that he is unclear why people think it is.
The legislature can overturn any order or mandate with a 2/3 majority.