February 17, 2021
Certain members of the NYS Legislature are expressing concerns regarding the depth and breadth of the powers the Governor is able to exercise during the COVID crisis without having to consult with members of the legislature. Currently, through the use of his emergency declarations powers, the Governor has issued hundreds of Executive Orders that have permitted him to control almost every aspect of community behavior during the COVID crisis, and now certain members of the Legislature are pushing back.
Interestingly, it was the Legislature that extended the Governors’ powers last March. And, as the article below notes, Governors have always had extraordinary powers to suspend laws during emergencies; but the bill NY lawmakers passed last March also gave the Governor the power to temporarily enact them. These additional powers are due to expire in April and Republican lawmakers are pushing for various limits to what they perceive to be unilateral decision making.
Ending Cuomo’s emergency powers isn’t as simple as revoking them
By Bill Mahoney, Politico
02/16/2021 07:27 PM EST
ALBANY — A growing number of Democrats are throwing their support behind calls to end Gov. Andrew Cuomo’s emergency powers, but achieving that goal might not be as simple as just doing away with those powers.
If Cuomo’s ability to issue emergency declarations were taken completely off the books, hundreds upon hundreds of executive orders managing vaccinations, requiring masks, limiting large gatherings, helping nonprofits or providing tax relief would disappear along with them.
The Legislature could eventually reenact most of these through the typical lawmaking process. But for the duration of the pandemic, it would be left in the position of holding sessions practically every day to deal with key questions, such as when indoor dining capacity in New York City can increase from 25 percent to 50 percent.
“I don’t think the Legislature is capable of making every little minute decision,” said Assemblymember John McDonald (D-Cohoes). “But I do think the Legislature needs to be more involved. How that plays out, I’m not 100 percent sure … It would be ideal if there was actually a strong working relationship between the executive and the Legislature, where there could be some kind of review board or mechanism where the executive can talk about what they’re doing, and get either a tacit or explicit sign-off.”
Several Democrats said that such a review board was very possible as the majority conferences continue their internal deliberation.
But, one source said, there are “still a lot of options on the table and everything’s open.” Legislation on the subject could come as early as next week, though that’s not guaranteed.
Cuomo’s executive powers were expanded by a bill he pushed through the Legislature on the day after New York had its first confirmed Covid patient early last March. Governors have always had extraordinary powers to suspend laws during emergencies; this bill also gave him the power to temporarily enact them.
The new powers are due to expire at the end of April. Republicans have been calling for them to be ended early since last May, but before a few weeks ago, only the occasional Democrat would make a similar plea. That changed on Friday as criticisms over Cuomo’s handling of nursing homes intensified.
“The revelation last week and several other revelations the last few weeks have caused people to question some of the claims and decisions that happened, and this is a problem the governor needs to deal with,” said Sen. John Liu (D-Queens). “He needs to get his administration back on the right track. And we as legislators also have responsibilities to our constituents.”
Liu said that “the need for these emergency powers just isn’t there anymore.” But, like several other Democrats, he said Cuomo’s critics aren’t “looking to undo the decisions the governor has already made and are currently underway. The main focus is on whether the emergency powers are still needed, and I myself don’t think they are.”
McDonald pointed to executive orders like one that lets EMTs travel to the dwellings of homebound people to vaccinate them (“Do we really want to pull that back? I don’t think we do.”) and one that offers restaurants a lifeline by letting patrons order booze to go. (“Do we really want to stop [restaurants] from having that opportunity when they’re on their knees?”)
“So when people say we just need to take all of the authority away from the governor, you really need to be careful about what you do,” he said.
Issues like those McDonald mentioned would probably receive majorities in both houses. But there’s the practical problem that there’s a mountain of such orders to sort through, and plenty more questions that will need to be dealt with very quickly in the coming months.
And how that might happen is very much in the air, and the only idea that comes close to winning full agreement is that the Legislature should have more of a role.
“What many people react to is this idea of ‘unilateralness,’” said Sen. Elijah Reichlin-Melnick (D-Orangetown). “You’ll have a decision made by the governor and a couple of aides and that governs the entire state with no executive oversight, or no role” for the Legislature except having the power to overturn it.
Cuomo and his staff have repeatedly pointed to the power to overturn when asked about criticisms of the governor’s executive orders. The Legislature can implement that power with simple majorities passed by resolution, without having to wait for his signature.
Reichlin-Melnick suggested reversing that ability: “So if [Cuomo’s] proposing anything by executive order, I would like to see that not take effect until that’s been signed off on by all or part of the Legislature,” he said.
But whatever happens, it’s a safe bet that Cuomo will still continue to have an outsized role in the state’s pandemic response.
“The governor will still have a great deal of power and responsibility,” Liu said. “The Legislature cannot and is not interested in running the government on a day-to-day basis. But there are long-standing checks and balances in the state constitution which were temporally put aside by these emergency powers.”
It’s an equally safe bet, however, that as long as Cuomo still has some role, Republicans won’t be terribly happy.
“That’s not even close to where we need to be,” Sen. Tom O’Mara (R-Chemung County) said of the possibility of a system with some sort of legislative oversight board.
“It’s frankly very concerning to me and to our entire Republican conference in the Senate that this majority just continues to be content to hide behind Gov. Cuomo making every decision in this process. We certainly believed that emergency powers were appropriate at the outset of this pandemic, but not for 11 months.”