Youngkin may get his mask victory, but he should learn he’s not a monarch

February 10, 2022 12:03 am

Gov. Glenn Youngkin delivers his first State of the Commonwealth address. (Photo by Ned Oliver)

Let’s hope novice politico Glenn Youngkin – eager to appease his base by banning mask mandates in schools – paid attention after an Arlington County judge hauled the governor to the woodshed. The proverbial paddling probably stung. 

It’s a positive outcome, though, if you believe in the rule of law and the state Constitution. That’s a lesson Youngkin needs to absorb, just weeks into his tenure.

Circuit Court Judge Louise DiMatteo granted a temporary injunction against Youngkin’s executive order Friday, saying he didn’t have the authority to override local school boards, as The Washington Post reported. Seven school divisions sued to halt the governor’s order.

The judge said both the Virginia Constitution and Senate Bill 1303, passed last year, give school boards the power to decide policies protecting the health of students and school employees during COVID-19. 

School officials are following federal health guidelines “to the maximum extent practicable” on masks and other safety measures, as the law dictates. 

SB1303, set to expire Aug. 1, removed politics from the equation and based masking on science. That’s a good thing, especially when mask and vaccine mandates have devolved needlessly into debates over “personal freedom” versus the need to protect everybody from a contagious virus.

Other legal challenges regarding masks are pending in Virginia. The state Supreme Court, for example, this week denied a petition sought by Chesapeake parents to overturn Youngkin’s executive order on procedural grounds. The justices noted, however, “we offer no opinion on the legality” of the order “or any other issue pertaining to petitioners’ claims.”

All this drama could become moot if the General Assembly passes a bill that apparently would supersede current law. It would allow parents to decide their children can go maskless in schools, some two years into the pandemic. 

The state Senate, controlled 21-19 by Democrats, approved an amendment Tuesday on an education bill allowing parents to “opt out” of the requirements. Ten Democrats joined Republicans on that vote, and Youngkin said he would sign the bill if it reaches his desk. A second vote on Wednesday, with less Democratic support, passed, too. Republicans control the state House, and they’re expected to approve the legislation. 

It’s yet another reason the guv should’ve reached out to Democrats sooner, before he fired off a slew of executive orders – some a sop to culture warriors – right after he was inaugurated Jan. 15. The mask declaration raised questions about whether it was even legal. Youngkin, seemingly obtuse, inked it amid the omicron COVID-19 surge. 

Carl Tobias, University of Richmond law professor, told me DiMatteo’s ruling was “clear, comprehensive, and convincing.” 

“She wasn’t overreaching,” Tobias said, adding that Youngkin’s signature on Day One in office “and giving a week to comply created chaos” for school officials and parents alike. 

He also pointed out something we can’t overlook: public health. Youngkin “wants to talk about parents’ rights,” Tobias said. “What about the parents of those who are disabled?”

Some pandemic background: Then-Gov. Ralph Northam, using emergency orders, closed businesses and schools as the pandemic raged. He also issued a mask mandate in schools when they reopened. 

Youngkin and his administration said they were merely using the same tools that Northam had wielded, and that they should be allowed to pursue this new course. My interviews with legal scholars didn’t clarify why Youngkin could face limits on his power compared to Northam – except for citing SB1303. 

Northam’s actions likely lowered the numbers of deaths and infections in the commonwealth. Hospitals and medical workers have been overwhelmed during the pandemic, and many health care professionals across America have left the field since COVID-19 arrived. 

Politics nationwide often played a role, too: Republican-controlled states tended to endorse fewer restrictions, while Democratic-run states usually did the opposite. 

Whatever Virginia ultimately decides, it will be tougher psychologically to reimpose restrictions after they’re lifted. So we need to get this right, while putting health and safety first.

Keep in mind: More than 908,000 people across America have died from coronavirus since February 2020, and at least 77 million cases have been reported. In Virginia, those numbers are 17,305 and 1.59 million, respectively.

A news report noted Virginia has had more COVID-19 deaths than nearby states during the omicron surge, though data show three straight weeks of declining cases in the commonwealth. Also, blue-led states like New Jersey have said they will end their mask mandates for schools soon. New York said Wednesday it will end face coverings in most indoor public settings, but it would keep masks in schools.

These are welcoming signs. Sen. Chap Petersen, the Fairfax Democrat who proposed the amendment on masks this week, noted the shift by several states to end mandates as one reason Virginia should follow their course.

This could provide Youngkin with a political victory. Congratulations, so long as he takes heed about the limits of his power – as a state judge pointed out.

He’s the governor. Not a monarch.

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Roger Chesley
Roger Chesley

Longtime columnist and editorial writer Roger Chesley worked at the (Newport News) Daily Press and The (Norfolk) Virginian-Pilot from 1997 through 2018. He previously worked at newspapers in Cherry Hill, N.J., and Detroit. Reach him at [email protected]