Last March, as New York officials attempted to contain several dozen confirmed cases of COVID-19, the state legislature granted special new powers to Governor Andrew Cuomo to fight a pandemic that would soon kill hundreds of New Yorkers every day.
Some of those same legislators who voted in favor of the powers are now calling to repeal them. Others say that Governor Cuomo should face impeachment hearings for decisions made using his new authority.
How has Governor Cuomo used these powers? How long do they last? And who will make vitally important decisions in the midst of a pandemic if they are repealed?
New York State Senate members work during a Senate session at the state Capitol, in Albany, N.Y.
On March 3rd, 2020, the state legislature passed a bill that provided $40 million in coronavirus relief aid to New Yorkers. Attached to that bill was language that gave the governor the emergency power to suspend, modify, and create laws by issuing “directives.” The powers are set to expire on April 30th, 2021.
A handful of lawmakers objected. One recalled how emergency powers were used by the Roosevelt administration to put Japanese Americans into internment camps during World War II.
The measure passed overwhelmingly, 53 to 4 in the Senate, and 120 to 12 in the Assembly.
According to the Daily News, the governor has since issued more than 230 executive orders and directives since then. They affect almost every aspect of New Yorkers’ lives, from the early stay-at-home orders, to who is eligible to receive a vaccine, to how schools can reopen.
Other directives affect the public in less visible ways.
“It’s emergency procurement authority, so agencies don’t have to go through the regular procurement process,” explained Rachael Fauss, a senior research analyst who studies for the government watchdog group Reinvent Albany. “A lot of the procurement rules that are in place require competitive bidding. They’re anti-corruption measures, and they’re meant to ensure the state gets the best deal as possible.”
The Cuomo administration for example is currently trying to claw back tens of millions of dollars from state contractors who pledged to provide masks and medical equipment but never delivered.
Under his expanded powers, Cuomo has also stripped reopening responsibilities from local leaders. Stephen Acquario, the executive director of the New York Association of Counties, said he believed that Cuomo has done an overall “good job” of administering them, but that it was time for some change.
“We’d be handling the issues of movie theaters, indoor dining, grocery store operations, we’re accustomed to that, we’re up to that task. But that has been superseded with the superpowers of the governor right now,” said Acquario, whose nonpartisan group represents county executives across the state. “I don’t want to say it was a good thing, I want to say it was a necessary thing.”
He added that during a state of emergency, being able to respond quickly is crucial. As the pandemic approaches its anniversary, he is wondering how and when the normal course of deliberations and jurisdictional control over local affairs might return.
“Is the legislature comfortable with straight executive law?” Acquario said. “That’s a question they have to answer to the public and to answer for themselves.”
There are currently two legislative proposals to check the governor’s power. One, sponsored by Bronx State Senator Alessandra Biaggi, would repeal the March 3rd law.
“It really does go beyond what is going on in nursing homes,” Biaggi told WNYC’s Brian Lehrer on Tuesday. Three weeks after the legislature granted the governor his new powers, Cuomo used them to issue a directive that required nursing homes to admit coronavirus patients from medical centers to free up desperately needed hospital beds. The Associated Press reported more than 9,000 people were transferred under the order, which was rescinded in May.
According to public health experts, it’s still too early to say whether the directive caused an increase in COVID-19 deaths in nursing homes, but the Cuomo administration has not been forthcoming with the data itself. At a legislative oversight hearing in August, the State Health Commissioner, Dr. Howard Zucker, told lawmakers that he could not respond to their repeated requests for the numbers because he needed to ensure they were accurate.
Last month, Attorney General Letitia James released a damning report showing that nursing homes deaths had been undercounted by at least 50%, and days later, a judge ordered the Cuomo administration to turn all the figures over to the public.
“We are a year into this crisis. We are, as a legislative body, a co-equal branch of government and frankly, it doesn’t really make sense to circumvent the legislature any longer,” Biaggi said.
Another proposal being floated in the State Senate by their leadership would create a 10-person commission, made up of members of the Assembly and Senate, to review any future pandemic-related directives. The text of that legislation has yet to be released. A spokesperson for Senate Majority Leader Andrea Stewart-Cousins did not respond to a request for comment.
What is unclear is how decisions currently being made by Cuomo—about movie theaters, schools, vaccines—would be made if Biaggi’s bill passes.
“These are the details that we are still discussing and going through,” Biaggi said. “It would not slow down or stop government, which is one of the myths that unfortunately, the executive is talking about.”
The governor’s office did not respond to a series of questions about the emergency powers.
Read More: Did Cuomo’s Controversial Policy On Nursing Homes Lead To More COVID Deaths?
Not much may change, given localities’ reluctance to wade into public health issues, and how broad the governor’s powers are during a state of emergency, even before the March 3rd law.
“The governor has had the ability to suspend laws for his whole tenure as governor and he’s frequently done so. The MTA has been under a state of emergency since 2017. That emergency order has now been renewed 45 times,” Fauss said.
The current state of emergency for the pandemic has been renewed since the fall. It lasts for 30 days and expires on February 26th, 2021, but can be renewed indefinitely.
Gerald Benjamin, a political science professor at SUNY New Paltz, said that given that the March 3rd emergency powers expire in a little more than two months, repealing them may be more "symbolic" than “substantive.” There may also be blowback for legislators who are attacking the governor.
“The governor has veto power over redistricting plans, which will not come up immediately but will come up shortly, and is life and death to many legislators,” Benjamin said. “My view is that there has been an overgrowth of executive power and a legislative assertion is legitimate and needed. But taking on the governor in the budget would be a better place to do it on substance.”
The budget negotiations also involve Cuomo’s second set of emergency pandemic powers. During last spring’s peak, the state legislature took the unprecedented step of giving the governor the power to “withhold” portions of the budget as a way of avoiding permanent cuts in an uncertain year. An agency by agency breakdown of those withholdings have not yet been made public by the governor’s office. Absent any federal aid to restore the Cuomo’s “withholdings,” the state legislature is essentially negotiating two budgets at once, last year’s and this year’s, all of which are due in April.
Just last week, Cuomo proposed a budget amendment that would essentially grant himself more power, by controlling all new revenues passed by the legislature in the upcoming budget.
“It does not make sense to wait. Waiting continues to further the unfortunate reality that we find ourselves in, in the legislature, which is really not being part of any process,” Biaggi said, arguing for immediate repeal of the governor’s March 3rd powers.
“Our constituents are looking to us, all of us, every member of the legislature for answers, and we should have those answers,” Biaggi continued. “Whether it's school closings, vaccination sites, testing sites, sports in schools, pick a topic. These are things that people are going to look to us for answers on.”
