ALBANY– For the past three months, Gov. Andrew M. Cuomo has invoked the suspension – and unilateral enactment – of hundreds of legal edicts as the Covid-19 pandemic spread across many parts of New York State.
The reason by Cuomo: protection of public health and, ultimately, to save lives.
Now, as he also decides what sectors and functions of society can reopen, a question is increasingly being asked: When does the state of emergency he declared on March 7 come to an end?
For nearly two months, Democrats who control the State Assembly and Senate largely left the operation and policymaking of state government to Cuomo, a Democrat, as the sole driver.
Republicans who are out of political control in Albany say Democratic lawmakers ceded too much authority to Cuomo and that now – with large parts of the economy getting restarted and infection and hospital and death rates from Covid down considerably – it’s time for the Legislature to start acting again like a separate branch of government.
“The governor has extreme powers. The urgency and need for quick action on this pandemic has passed. It’s time we get back to checks and balances,’’ State Sen. Thomas O’Mara, a Chemung County Republican, said recently.
Lawmakers reconvened two weeks ago to take up a number of Covid-related bills that they said were urgently needed, from anti-price gouging steps to homeowner and renter protections to disaster loan efforts. By Friday, however, lawmakers still had not sent 31 of those bills to Cuomo, a signal that he was not ready to act on them yet and they were not willing to try to force his hand to sign or veto them.
Lawmakers are due back again on Monday to take up other Covid-related bills, as well as a series of criminal justice bills in response to the killing of George Floyd in Minneapolis.
They will do so as Cuomo still controls the state’s pandemic response, deciding the precise timing when the state loosens restrictions in 10 different regions that have affected every kind of business, arts, education, entertainment and religious entity.
Cuomo has used executive orders to suspend laws that he says are necessary for the state to be able to quickly respond to Covid-19. It has run the gamut from the number of days students have to attend K-12 classes to state liquor laws that formerly banned restaurants and bars from selling alcohol to go.
The governor also has used executive orders to get around laws that require state contracts to be reviewed by state Comptroller Thomas DiNapoli. Contracts and spending – with some individual items exceeding $100 million apiece – did not go through the comptroller’s auditing staff due to a clause in Cuomo's original March 7 emergency order that suspended the state comptroller's review of Covid-19 related contracts.
The Legislature on March 2, a day after the first confirmed Covid-19 case was identified in New York, amended state law in ways that Cuomo has tapped into nearly every day since:
• Added “impending or urgent” to definition of a disaster.
• Added “disease outbreak” to types of disasters, like terrorism or storms, covered by emergency declaration powers.
• Greatly expanded the governor’s emergency powers by adding an extraordinary new ability: the issuance, via executive order, of “any directive” … "to cope with the disaster.”
Since then, Cuomo has used those powers to not only suspend laws, but, many argue, to also create new laws – which is, according to the constitution, typically the sole duty of the Legislature.
Some Democrats in March raised concerns about the expanded powers issued to Cuomo. One lawmaker on the Assembly floor warned colleagues he’d never seen such a power grab or cessation of legislative authority in his years serving with eight governors.
Many Democrats last week demurred to talk publicly. They said there has been talk privately among members about not letting Cuomo continue the Covid-19 emergency declaration much longer as the virus recedes. Some lawmakers have concerns about some actions taken by the Cuomo administration – including a now rescinded order that required nursing homes to admit Covid-positive patients – but Democrats insist they would have returned to Albany to undo anything that Cuomo did through executive powers if they thought he had done anything egregious.
If Cuomo does not end the emergency declaration, Democrats privately note they have the legal authority to act. Many don’t want to see the powers continue much into the Phase Four reopening period, which could be late June in upstate and in well into July in New York City.
“While we have made great progress in combating the Covid pandemic, the fight is still ongoing. As this crisis moves into the next stages, there will be many other issues on the table and obviously there has to be changes to the approach,’’ said Mike Murphy, a spokesman for Senate Majority Leader Andrea Stewart-Cousins, a Westchester County Democrat.
Murphy did not elaborate. But there are Senate hearings planned to explore the high number of nursing home deaths and breakdowns in the state's unemployment system.
"The Legislature can, at any time, pass a concurrent resolution to rescind an executive order during this unprecedented health care crisis," said Michael Whyland, a spokesman for Assembly Speaker Carl Heastie, a Bronx Democrat.
Republicans, however, don’t see Democrats who run the Legislature bucking Cuomo on the issue of gubernatorial emergency powers.
“What we’re seeing is unprecedented: the longest use of emergency powers certainly in our lifetime,’’ said Sen. Patrick Gallivan, an Elma Republican.
He and others cite many examples of executive branch overreach into the Legislature’s job. For instance, Cuomo extended a state law’s statute of limitations for victims of child abuse to bring civil cases against their abusers. In late May, lawmakers – in their first session since early April – effectively upended that executive order; they gave an additional year to the statute of limitations to bring a case.
Government watchdog groups raised flags in March, and are still doing so. “It’s under a pandemic that you want government to respond quickly,’’ said Blair Horner, executive director of the New York Public Interest Research Group. But, Horner said, the powers should be time-limited and lawmakers should have to return and affirmatively decide whether to extend the governor’s powers.
“American democracy is based on a system of checks and balances and the Legislature has ceded their check and are not balancing the governor,’’ Horner said.
The Cuomo administration did not comment for this story when asked if Cuomo has a target date for ending the Covid-19 state of emergency, as well as about Republican lawmaker calls for new controls on emergency powers.
Cuomo’s executive powers
The governor has been a strong user of executive orders. Since taking office in 2011, he has issued 338.
Since March 7, Cuomo has issued 37 executive orders pertaining to Covid-19, many of them with multiple provisions affecting vast sectors of society and the economy. He has used the orders to shut down businesses, close schools and redirect health care resources – all with the stated goal of trying to contain a virus that as of last week had killed more than 24,000 New Yorkers.
The 338 total executive orders by Cuomo is, historically speaking, a lot. Gov. Nelson Rockefeller, between 1960 and 1973, issued 78 such orders. Gov. Huge Carey issued 122. Gov. Mario Cuomo, the governor’s father, issued 189 over his 12 years in office.
Gov. George Pataki issued 147 in his 12 years, but that number comes with a large asterisk. On Sept. 11, 2001, Pataki released executive order No. 113, which declared a state of emergency in response to the terrorist attacks on the World Trade Center and other sites earlier that morning.
He would keep on issuing subsets of that order No. 113 right up until Dec. 26, 2007. In all, there were 121 orders specifically about the attacks.
Democrats are focused on creating new laws pertaining to Covid-19 and, with protests still raging across New York, criminal justice and police matters. Democrats in power also are dominated by residents of New York City, which has been hit hard by both Covid-19 cases and deaths and widespread police brutality protests.
Republicans say Democrats need to add something else to their list: resumption of legislative authority ceded to Cuomo.
• Ending statewide emergency orders so that a governor must limit such orders to specific counties.
• Placing a real limit on how long executive order declarations can last. Presently, the orders last 30 days, but Cuomo can renew them at will. Republicans say a firm limit of 30 to 45 days is needed, with the Legislature authorized to extend an order after that. Critics say the Legislature is not as nimble as a chief executive; defenders of the plan say new remote voting procedures for lawmakers make those criticisms moot.
• Permitting county leaders to specifically request that a governor lift a state of emergency that applies to their county; if rejected, the governor would have to give specific reasons why that county needs to be covered by an emergency order.
Assemblyman Andy Goodell, a Chautauqua County Republican, believes Cuomo overstepped his authority through his economic shutdown orders, changes to election dates and orders that halted evictions.
Goodell, sponsor of the main Assembly GOP bill to amend the governor’s emergency authorization powers, notes that those emergency powers require Cuomo to follow all constitutional protections and to make directives that only have “minimum deviation” from existing state laws.
“The Legislature did not authorize, nor could it authorize, the governor to make any new laws. The constitution says only state legislators can make new laws,’’ he said.
The Republican said Cuomo changed over 260 laws without legislative authority, “ran roughshod over the separation of powers doctrine” and ventured into education policy in a state where the constitution gives that authority to the state Board of Regents.
Assemblyman Richard Gottfried, a Manhattan Democrat who has served in the Legislature since 1970, noted that some would say that the governor’s executive orders are only temporary and that the law giving him new extraordinary powers expires next April. “Well, in theory yes,’’ the Democratic lawmaker said. “But think of all the things that this governor and other governors have got us to pass on the theory of, ‘Oh, it’s only temporary,’ and after two years we’ll extend it again, and then again, and then again.”