Last week, Governor Cuomo signed legislation appropriating $40 million to help fight COVID-19, the novel coronavirus. That was excellent news.
But buried within the legislation, however, were troubling provisions appropriating something else – enormous, unprecedented, and unnecessary additional powers to the governor.
While the governor already possessed the ability to respond quickly and effectively to a “disaster emergency,” the new legislation dramatically increased his emergency powers.
To begin, the bill expanded the circumstances that qualify as “disasters.” While the previous law allowed the governor to exercise his emergency powers to address epidemics (among many other things), the new law now enables him to invoke his emergency power in cases of “disease outbreak.”
What does this mean? No one really knows. While it seems intended to cover an outbreak of illness that falls short of an epidemic, it’s unclear how far short, or how serious an illness.
Next, under the old law, the governor could only invoke his emergency powers if a disaster already had occurred or was “imminent.” The new law, however, allows him to invoke these powers if a disaster is merely “impending.” “Impending” is far less immediate than “imminent.” Could it apply to events several months or years away? This, too, is ambiguous.
What is clear, however, is that the vagueness of these words and phrases in the new law allows Governor Cuomo to invoke his emergency powers in a vastly expanded array of circumstances.
Perhaps more concerning, though, is that the nature of the governor’s emergency powers has been greatly expanded. Under the new law, the governor may “issue any directive” he believes will “aid in coping” with the disaster. Talk about open-ended!
The new legislation also eliminates important language that was designed to protect against gubernatorial abuse. Previously, the governor could only exercise his emergency powers if doing so would “safeguard the health and welfare of the public.” The new measure, astonishingly, eliminates this restriction.
By increasing opportunities for the governor to invoke his emergency powers and expanding what he can do with them, the legislature has bestowed on Governor Cuomo sweeping new authority that he can flex at practically any time for practically any reason.
As one critic has correctly noted, the new law could “theoretically justify all kinds of maneuvers, like the declaration of martial law, unilateral travel restrictions, and mass quarantines.” Already, Governor Cuomo has made it illegal for 500 or more people to gather together. How easy it could be for him, one day in the future, to ban political rallies, public protests, or demonstrations that he disfavors under the pretext of protecting the public health. After all, “sovereign is he who decides on the exception.”
While the new law is scheduled to sunset in April 30, 2021, no one realistically expects this governor, who has demonstrated with each executive budget a predilection for pushing the envelope of constitutionally permissible power, to put this toothpaste back in the tube.
Thomas Jefferson warned that we must guard against “elective despotism” – where we place too much power in the hands of one elected official – and cautioned that “it is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.” Sadly, the wisdom of the ages went unheeded.
This legislation was sponsored in the Senate by Majority Leader Andrea Stewart-Cousins at the request of Governor Cuomo, no doubt as part of a backroom deal, and was pushed through in typical Albany style. When both chambers’ health committee chairs raised concerns regarding the expanded authority being granted to the governor, Senate and Assembly Democratic leadership rammed through its passage.
The bill was introduced on a Monday afternoon and voted on that night. Lawmakers had no time to debate the bill, and had practically no opportunity to read it or solicit expert or public opinion. Since the measure was joined with provisions allocating money to help combat the coronavirus, lawmakers risked fierce blowback if they voted against it. And, they acceded to Governor Cuomo’s power grab despite the fact that the governor never explained why the expansion of his emergency authority, which was already far-reaching, was necessary. Indeed, even though New York has suffered through other significant crises – such as the AIDS epidemic, Swine Flu, SARS, Ebola, and Zika, to name a few – no other governor has ever requested an expansion of emergency powers.
Rahm Emanuel famously stated, “Never let a serious crisis go to waste.” By tying the allocation of money to combat the coronavirus to legislative enlargement of his executive powers, Governor Cuomo exploited the current pandemic for personal political gain.
It’s a move ripped from the same playbook used by third-world dictators.
That the Democratic leadership worked hand-in-glove with him to do this is shameful, and that so many of our lawmakers simply rolled over and acquiesced is a pitiful indictment of what one-party rule does to government.