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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again everyone. Omicron cases are exploding in schools on Long Island like everywhere else in our area and in fact, even more. News 12 reports that the stats from Long Island show the highest number of COVID cases among students for any region in the state this school year.

The report says Commack had the most cases and four school districts went all remote last week because they had too many teachers out due to the virus, Hicksville, Baldwin, Freeport, and Wyandanch, but the new Nassau County Executive Bruce Blakeman has announced that he will refuse to enforce Governor Hochul's statewide mask mandate for schools, leaving it up to each district in the county instead.

Blakeman, a Republican just elected in November, says he also won't enforce Hochul's statewide mask mandate for indoor public places including for county workers. That would mean county workers could decide as individuals that they don't want to wear a mask in the office and co-workers who don't feel safe with unmask colleagues breathing around them, will just have to deal with it.

What Blakeman is doing is handing out K-95 masks to teachers, giving out free at-home tests to county residents, and adding more testing and vaccination sites. Blakeman describes his approach as aggressive. Still, he said this on Thursday about the schools.

Bruce Blakeman: Parents have a fundamental right to make healthcare decisions on behalf of their children. Government may not infringe upon these rights without a compelling reason.

Brian Lehrer: Nassau County Executive Bruce Blakeman on Thursday. Governor Hochul says, "Not so fast."

Governor Hochul: State government, state laws prevail. There's also the issue of the State Education Department, which has direct control over funding of schools. I hope I don't need to say any more on that topic.

Brian Lehrer: Interesting threat about funding to schools. Let's talk about Nassau County's approach to masking during Omicron, but also the larger question, when does the state have the right to tell localities what to do and when do the localities have Home Rule and when should they? New York City can't make its own rent laws without getting upstate legislators to say it's okay. Same with how many red lights speeding cameras the city can have.

The question of Home Rule cuts across the left-right divide depending on the issue. With us now is an expert on state and local government who has written about Home Rule in New York State, Richard Briffault, Professor of Legislation at Columbia University Law School. He's also an expert in redistricting. We'll touch on the current stalemate and New York's new bipartisan redistricting procedures, the outcome of which could figure into which party controls the House of Representatives after the midterm elections. Welcome back to WNYC. Professing Briffault, hi.

Richard Briffault: Thank you. Happy to join you this morning.

Brian Lehrer: Governor Cuomo like to remind Mayor de Blasio that New York City is a creature of the state. What does that mean, and how does it apply to this conflict between Blakeman and Hochul?

Richard Briffault: In this case, it's actually pretty straightforward. New York State law can preempt inconsistent local rules. That's pretty clear. Governor Hochul was just absolutely right on the law. The statute that provides for emergencies, gives the governor the power to issue an executive order that displaces any inconsistent local law and inconsistent local directive, and the Governor's Executive Order does exactly that.

She's also particularly right about the point of education. Education is very much considered to be a state function, state-controlled, state sets the rules that can delegate a lot of discretion to cities and to local school boards, but ultimately, in education, in particular, the state sets the rules.

Brian Lehrer: Listeners in Nassau County, what do you think about the new county executive stance on masking? 212-433-WNYC, 212-433-9692. Anyone listening who is a county worker, how's that actually going in your workplace? If you happen to be listening right now with suddenly people who don't want to mask, not having to mask as they work alongside you. 212-433-9692.

Anyone listening who works at a hospital on Long Island, one way in, either way. 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. Are you surprised by this particular stance by Nassau County Executive, Blakeman? You talked about education, how about as it relates to public health and these county workers?

Richard Briffault: Again, just to mention some of the law, the governor is right, the State Executive Order prevails. Two things about the county executive's action. One, is it does fit into what has clearly been taking place over the last two years, is a partisan political divide in many places about all sorts of public health responses to COVID with Democrats gently taking a more aggressive approach on terms of things like masking and vaccination requirements, and Republicans pushing back.

You heard him say, talking about concepts of freedom or liberty, or at least on the part of the individual, not the community as a whole, but on individuals, and basically trying to make it into a more partisan issue.

More particularly though, his action does point to an interesting issue, which is, although the state sets the rules, state doesn't have police everywhere, the state doesn't have inspectors everywhere, and the state does depend on local cooperation to get the rules enforced. Although I think if Governor sue the county executive, she'd surely win. This does ultimately require local cooperation in order to make the state's rules happen.

Brian Lehrer: Talk about some other things that are controversial in terms of whether the state or a locality gets to determine what the laws on that are. I mentioned the example which has frustrated New York progressives for many decades of the state getting to control what New York City rent control and rent stabilization laws are rather than the city having Home Rule over that.

Richard Briffault: Candidly, in theory, the state could take over almost everything. The way Home Rule works, Home Rule is more a matter of saying, "Yes, cities, you can have relatively broad powers to do things without express state authorization, but in nearly every situation, the state can take that power back." That's really the issue. When we talk about Home Rule, at least, academics talk about the distinction between initiative and immunity.

Home Rule gives the city a lot of initiative. The city has done a lot of important things on its own over time. I think back to some of the initiatives that Mayor Bloomberg did in the area of public health, like anti-smoking in public places and in restaurants and bars, but the state has the power to take it back, and that comes up all the time.

Brian Lehrer: Well, is New York an outlier, in this respect, how much power the state has over New York City and other cities and counties and other municipalities?

Richard Briffault: No, not really. I think New York City has a lot of initiative power, but the state's ultimate power to take back is actually pretty comparable to other states around the country. Indeed, it's really only a handful of states that go the other way of which California maybe is the prime example, where there actually are some protections for local actions. Even those are mostly focused on things like local control of the municipal workforce, local rules governing local government contractors, people who like local government hires to build things, and maybe issues about the structure of a local government, but broader general policy matters, even in California, state usually has the power to prevail.

Brian Lehrer: Why does the state have the power to prevail over New York City's rent laws, to stay on that example?

Richard Briffault: The argument that the state has made and that the State Court of Appeals has regularly bought, it's kind of ironic, it's particularly strong with respect to New York City, is that what happens in New York City is a matter of state concern. That phrase "state concern" is the one that the courts use all the time. New York City is so big and so significant, it's kind of ironic. You would think that New York City being so big and so significant, it should be able to write its own rules, and a lot of things, but it's the reverse. The Court of Appeal has said that New York City is so big and so significant to the life, to the well-being of the state that the state has a major stake in important things to happen in New York City. It's kind of perverse, but it is the rule.

Brian Lehrer: As far as the Blakeman and Nassau County unmasking, he's not going as far as the Republican Governor of Florida, Ron DeSantis, for example, who I believe is forbidding local school districts and even private businesses from imposing mask or vaccine mandates. Blakeman is saying school districts should decide for themselves, based on the concept that counties have home rule for things like this. If he was in Florida, would he be considered a liberal?

Richard Briffault: If he was in Florida, he might have been adopted more of a DeSantis-like rule, who knows, but that is the direction that many Republican elected officials have gone.

Brian Lehrer: Because there's home rule for thee and home rule for me, if you know what I mean, from a liberal or conservative standpoint. The localities in Florida are saying, "What do you mean, Governor DeSantis, that we can't decide for ourselves when to have a mask mandate and a vaccine mandate?"

Here, Blakeman, from the other side is saying to Hochul, "What do you mean we can't decide that for ourselves?"

Richard Briffault: For things that receive state funds, the state could. I don't see or hear any evidence of this try and make school aid conditioned on those school boards enforcing the mask mandate. I haven't seen anything that indicating that the state's going to take that position, but it would be possible to say that the school districts in the state are heavily dependent on state aid. I could imagine that but there's no evidence that they're doing that.

Brian Lehrer: Mary Ann in Nassau County. You're on WNYC with Columbia Law professor, Richard Briffault. Hi there. You want to react to what your county executive is doing right?

Mary Ann: Hi, is this me?

Brian Lehrer: Yes.

Mary Ann: Oh, great. I'm Mary Ann Howie. I'm an emergency physician. I work in Nassau County. To have someone do something as responsible as a leader to discourage the mask mandate while our emergency departments are being flooded with people and patients who are coming in that are getting testing and we are on surge.

One of the things that he identified early on is that because 90% of the population in Nassau County is vaccinated, that we didn't have to worry about it anymore. I am telling him from the front lines, we absolutely have to worry about it because while I am getting inundated by patients who have, thank God, not as bad infections generally if they are vaccinated, as they did during the first wave. They are still taking up our time, our energy, and our efforts. The patients who otherwise would be using the emergency department are also caught into the crowd and the busyness of the people who need to get care.

Brian Lehrer: You are saying his stance for individual liberty affects other people who may not be able to get emergency healthcare in as quality away as if he didn't do this?

Mary Ann: Absolutely. I think the role of a good leader and a good role of government is to make sure the vulnerable are protected. Kathy Hochul is working to make sure the vulnerable are protected and Mr. Blakeman is absolutely not.

Brian Lehrer: Mary Ann, doctor, thank you for your call. Here's another doctor, Ron in Babylon, who says he's a school medical director for several districts. Hi, Ron. Thanks for calling in.

Ron: Hi, Brian. Thank you for taking my call. Yes, I work for-- Every school in New York State has a medical director who is responsible for what goes on in that school. This is a public health issue and we need to have consistent leadership from the state, which we do have. I agree with the previous caller, it is irresponsible to give local control to school boards because it is a very political issue and the districts are very close to one another.

Some kids in the district may be forced to and asked to wear their masks, and the neighboring district may say, "Oh, we've decided against it." Yet these kids are friends. It's a public health issue and we need a consistent approach through mask-wearing in school systems.

Brian Lehrer: Ron, thank you very much. Professor Briffault, how do you think this standoff between the county executive who says he's going to ignore, he's defining a state order when the state says it has the authority. How do you think this standoff is going to end? What are the various possibilities for how it might end?

Richard Briffault: I'm not sure. I'm not sure that the state can compel him to change his mind. The state could send, I don't know, I guess state inspectors in, if this is a matter-- The state could certainly directly tell the school boards that they're under a directive, state directive to apply the mandate. That would just give the school boards a requirement to those who need, it would give legal cover. The state could certainly give that as a directive. With respect to the issues about requirements on businesses, the state could get engaged by sending state inspectors in to check on businesses.

The state can basically direct people to ignore what the county executive has said. I think in the end, if the state-- I'm not sure if the state would go to court. Maybe they would go to court and actually issue an order compelling the county executive. That would be a pretty hard thing to accomplish. I think it's hard to make a government do something that it doesn't want to do. There's all sorts of forms of passive resistance. The state might have to start saying in its own inspectors or its own enforcement people.

Brian Lehrer: Would you as a law professor see this as an indicator of a larger breakdown of democracy or would that be too alarmist a way to look at it? If you have leaders who are elected actually saying, "No, I won't follow the law." Is that a new place that we haven't been very much in this country?

Richard Briffault: I wouldn't call it a problem democracy. In some sense, the problem is he did get elected. He did win an election just a couple of months ago. I don't know if we talked about masking in his campaign, but if it was consistent with Republican candidates generally, obviously there are a lot of people in his community who likely support his position because they did vote for him.

It is a broader problem by the way you put it in terms of defiance of the law. It's this problem about the defiance of science, the defiance of the law, and a willingness to commit to a kind of lawlessness because you think your position is so right. It's also a breakdown of intergovernmental cooperation. In the end, the state needs the county, the county needs the state. To get this kind of a conflict, especially given the public health crisis we're in, is really unfortunate.

Brian Lehrer: My guest is Columbia University Law Professor Richard Briffault. Speaking of the breakdown of democracy, [chuckles] let me get to the second issue that we put on your plate for this appearance on the show, redistricting. Now, listeners, I'm going to give you a little background on this one because coming out of the 2020 census, you probably know this much, all the states are redrawing their district maps based on population changes.

New York lost one seat in Congress so there is definitely a question of whether that loss will come from a district that's mostly Republican or mostly Democrat. The election for control of Congress nationally could be so close this fall, that what happens in New York State redistricting could conceivably make that difference. This year marks the first round in New York State with a new "independent redistricting commission," which was set up to take some of the politics out of the process, but apparently, professor, it's not working so well.

We had a couple of the leaders of the commission on the show a few weeks ago and they'd described how the goal is to come up with bipartisan agreement on how the district lines would be drawn. It's not a simple matter of whichever party is in power and the legislature gets to draw the lines to their advantage, but I see they've reached a stalemate. The Democrats on the commission submitted one districting map. The Republicans on the commission submitted a separate districting map. What a mess, where does this stand?

Richard Briffault: I think when you create a bipartisan commission and you give equal representation to both sides, it's not going to work unless they themselves are able to make a deal. Obviously, they weren't. What we're going to get is going to look something that looks more like traditional redistricting. It's up to the legislature. Two things on that. One is this is the first time in a very long time, that both houses of the legislature are controlled by the same party.

For the last, I don't know, I guess, certainly for 1980, 1990, 2000, 2010, we had a split legislature, a Republican Senate, and a Democratic assembly. Basically, that meant that each house took care of itself, so you had Republicans protecting Republican seats in the Senate and Democrats in the assembly, and then they would make a deal on the congressional districting. Typically New York State's been losing over time. They would try and do it on a one-for-one basis, even that out, because, in some ways, the legislature had less of a stake in congressional redistricting. Now is the first time in a long time where they're both houses of control with the same party. The one thing in the constitutional amendment that created that commission did put some criteria in the New York State constitution, that at least nominally restricts the manipulated lines that can be drawn, puts in some substantive limits, and in particular, tries to put in some limits about kind of excessively partisan line drawing.

Although, I think the legislature's going to have a lot of leeway in writing plans, and really there's going to be three plans, one for the assembly, one for the Senate, one for Congress. It might provide some basis for the kinds of partisan gerrymandering challenges under the state constitution that the US Supreme Court has totally ruled out under the federal constitution, but we'll see.

Brian Lehrer: There's more at stake than just one seat in Congress. Those maps could be drawn in such a way as to cost Republicans more seats. For example, more of Brooklyn could be added to Nicole Malliotakis' district to make the whole city delegation likely Democratic. Staten island dominates that district now. Given that red states like Texas and North Carolina, aren't even trying to use bipartisanship in drawing their lines, there's just Republican gerrymandering going on there. I think that's fair to say. Is there a case to be made that without federal rules against gerrymandering, they would be wrong to unilaterally disarm?

Richard Briffault: That's a good point. I'm not sure I want to get into the politics of it, but yes, certainly, Democratic-dominated states are free to write their districts, [unintelligible 00:21:44] free to develop districting plans that favor Democrats just as Republican-dominated states are likely to do it to favor Republicans. I guess there's a little bit of [unintelligible 00:21:58] politics argument there.

You ideally would like to have districts that really represent their underlying communities. It's true. There's a big debate in districting about whether what we should be looking to is fair-- individual districts that represent their communities or to some partisan balance for the state as a whole that reflects the underlying politics of the state. In the end, it's basically going to be politics.

Brian Lehrer: What's the deadline for this? We have primary elections coming up in June in New York state this year for Congress and everything else.

Richard Briffault: I think the state recently just reset the deadline a little bit because of the difficulties the district commission was having. Honestly, I think there may be a formal deadline on the books, but the de facto deadline is soon for the very reasons you gave. It's not just when the primary is, but the process of candidates beginning-- petitioning to get on the ballot starts several months before that.

Of course, you don't know where or whether you can run unless you know what district you're in. That applies all up and down, assembly up, and Congress, and state Senate. My guess is we'll see action on this pretty soon because, yes, the political calendar runs several months before the primary election day itself.

Brian Lehrer: Columbia University Law Professor Richard Briffault. We'll have to leave it there. Thanks so much for talking about Home Rule and redistricting, both very consequential for the people of New York right now.

Richard Briffault: My pleasure. Thank you for having me.

Brian Lehrer: Brian Lehrer on WNYC. Coming up next, we'll talk about the horrific fire on East 181st Street in the Bronx. We'll hear from our reporter, Jake Offenhartz with some of the latest, including who owns the building and what the background on that building is, also information from a fire science expert on how to prevent that kind of disaster in your high-rise building, stay with us.

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