HARRISBURG (TNS) — Republican state lawmakers are taking a different avenue outside of the courts to challenge Pennsylvania Acting Health Secretary Alison Beam’s order requiring masks in schools and child care centers.

The House Health Committee on Tuesday voted 15-5 along party lines to send a six-page letter to the little-known Joint Committee on Documents to determine if Beam violated the law by issuing her universal masking order on Aug. 31.

Lawsuits have been filed in state and federal courts arguing that the secretary’s order should be subject to the state’s regulatory review process.

During an hour-long meeting, committee Chairwoman Kathy Rapp, R-Warren County, said as legislators, “we have the authority to make laws, not secretaries of agencies.”

She said the secretary’s order is being interpreted by school districts as a law.

“It is my strong belief that the secretary does not have the authority to proclaim this order” outside of a gubernatorial declared disaster declaration, Rapp said.

The secretary’s order took effect Sept. 7 requiring everyone in all schools, public and private, along with child care centers to wear a mask unless they qualify for a limited number of exemption.

Beam issued the order at the behest of Gov. Tom Wolf. The administration cited authority provided by the state’s Disease Prevention and Control Law. It remains in effect until she “determines the public health risk is sufficiently reduced so that face coverings are no longer necessary as public health tools in school entities.”

Wolf and Beam said the order was needed in light of the rising number of COVID-19 cases and hospitalizations and in a desire to keep kids in school in person.

The Joint Committee on Documents is an 11-member panel that includes the governor’s general counsel, the attorney general, the director of the Legislative Reference Bureau, the director of the Pennsylvania code, the president pro tempore and minority leader of the Senate and the speaker and minority leader of the House, the General Services secretary and two gubernatorial appointees.

The Joint Committee on Documents is obligated to respond to the committee, Rapp said.

Vince DeLiberato, who chairs the committee on documents, said he anticipates the committee will meet during the week of Oct. 18 to consider the House committee’s request for a determination. He said his committee’s determination is like any other state agency order and can be appealed to Commonwealth Court by the losing side.

Rapp said she thought it was necessary to seek the Joint Committee’s opinion knowing the courts already have been asked to weigh in on the issue as well to “cover all our bases.”

Rep. Dan Frankel of Allegheny County, the ranking Democrat on the committee, saw it differently. He called it “an exercise in political theater.”

“This is a politicized effort to curtail the responsibility of state government to protect citizens and here its most vulnerable citizens, our students,” Frankel said. “I’m flabbergasted that we have come to this point in time where public health has become a partisan political issue.”

Further, he said it’s inconceivable to think that the drafters of the 1955 Disease Prevention and Control Law would want to hamper a health secretary’s powers related to quarantining by making the secretary’s orders subject to a regulatory review process that can takes months, if not years, to complete.

“They are throwing everything but the kitchen sink against the secretary of health and governor – its lawsuits, this letter, who knows what other gimmick basically pandering to the political base of the Republican party,” Frankel said after the hearing.

Lyndsay Kensinger, a spokeswoman for the governor, said lawmakers are wasting time rather than focusing on more pressing matters in the pandemic.

“It would be far more productive for these members to join their bipartisan colleagues in the General Assembly who choose to save lives and stop COVID-19 by encouraging everyone 12 and older to be vaccinated,” Kensinger said.

House Speaker Bryan Cutler, R-Lancaster County, said the Wolf Administration should be focused on educating kids and “addressing the long-term consequences of his previous school shutdown and not policing who is and is not wearing a mask.”

Rapp accused Democrats of playing politics with the masking order through what it considers an overreach of the secretary’s powers. She pointed out the administration also has threatened penalties against on districts, superintendents and school board members if they don’t comply with the order.

Rapp said the health secretary can no more mandate masks than the agriculture secretary can mandate all schoolchildren to drink a half pint of milk every day.

At a news conference in Lancaster Tuesday afternoon, Beam defended the administration’s decision to implement the mask mandate. She noted that COVID-19 cases among school-age children are 10 times higher than at this time last year. In September 2020, some schools were operating partly or at least remotely.

Beam said the administration wants to ensure kids can be in classrooms and that parents can go to their jobs.

‘We want kids in school. We want parents at work. And we were willing to do that through these orders,” Beam said.

More than 2,300 people are being treated for COVID-19 in hospitals, compared to about 250 in July, according to data from the Pennsylvania Health Department. The state reported more than 3,700 new COVID-19 cases Tuesday.