4/16/2020 9:44 PM, Anonymous

Health Commissioner Howard Zucker and Governor Andrew Cuomo speak at a COVID-19 briefing in Albany on Wednesday. Mike Groll / Governor's Office

In the wee hours of Tuesday morning, the state legislature approved $40 million in emergency funding to help contain the COVID-19 outbreak in New York. Buried within the legislation is a provision that has alarmed progressive lawmakers and advocates: an extraordinary, broad, and little-understood expansion of Governor Andrew Cuomo’s emergency powers.

“I’m scared or concerned because I don’t know what the governor has in mind,” said Assemblymember Richard Gottfried, the longtime chair of his chamber’s health committee.

With the support of both legislative leaders, the emergency funding bill overwhelmingly passed the Democrat-controlled Assembly and State Senate. Andrea Stewart-Cousins, the Senate Majority Leader, and Carl Heastie, the Speaker of the State Assembly, pushed for its passage, overriding the concerns of the health committee chairs in both chambers.

Cuomo did not offer a detailed explanation of his push to expand his emergency powers, telling reporters that “these are uncharted territories” and that “government has to respond.”

The whole process was rushed, in typical Albany fashion. Word came Monday afternoon that legislation would be coming to the floor from the governor’s office, Gottfried said. The state’s health commissioner, Howard Zucker, had met with Assembly Democrats for a briefing, making no mention of the need of additional emergency powers.

The Assembly and Senate hardly debated the bill. It passed both houses after midnight, with little time to read it or seek outside counsel. The Senate approved the measure 53-4, while the Assembly voted 120 to 12 in favor.

Though New York law already allows Cuomo to suspend provisions of any state or local statute that would delay in coping with a declared disaster, the new measure goes further, broadening the definition of disaster from a “past occurrence” to something that is “impending.”

The new law specifically added “disease outbreak” to a list of triggering events alongside “epidemic,” and gives Cuomo new power to issue directives “necessary to cope with” a broad list of potential disasters, from tornados to cyberattacks to volcanic eruptions.

The definition of disasters is general enough that critics fear Cuomo, a governor who already enjoys aggressively wielding executive power, can abuse the new law in a wide array of circumstances to override existing law.

“It’s a reckless expansion of executive power,” said State Senator Julia Salazar, a Brooklyn Democrat who voted against the bill.

In a statement, the New York Civil Liberties Union compared the new law to anti-terrorism provisions passed after 9/11 that were never used to prosecute terrorism. “We should not repeat the mistakes of 20 years ago. While the legislature should move expeditiously to fund and support the necessary public health response, nothing requires them to expand executive power without adequate consideration for the need or the potential consequences,” the NYCLU said.

Part of the challenge of understanding the expansion is the lack of specificity in the bill language. Since the governor already has expansive emergency powers, adding more could theoretically justify all kinds of maneuvers, like the declaration of martial law, unilateral travel restrictions, and mass quarantines.

The limits are largely unknown.

Assemblymember Yuh-Line Niou, a Manhattan Democrat, said Cuomo’s expansion of emergency powers deeply concerned her as an Asian-American legislator.

“One of my mentors was born inside an internment camp,” Niou said in an emotional Instagram video, referring to the unlawful detention of Japanese-American citizens during World War II. “I have an innate fear of what would happen if we allow our government to be able to weaponize fear and to be able to make a directive and have the power to order private citizens to do something without any checks and balances.”

As far as Gottfried understands, Cuomo’s new emergency powers would allow the governor to override the due process the people who are quarantined are entitled to under existing law, like a person being required to see a judge after being arrested for violating an order.

“Those are valuable safeguards,” Gottfried said. “As best as I can tell, the new law does away with them if the governor chooses to.”

The law has a sunset provision and the legislature will have to renew it in a year. It’s unclear if Cuomo would push for a renewal. The governor’s office did not immediately respond to a request for comment.

“We don’t fully understand the implications of the new powers versus the old ones,” said John Kaehny, the executive director of the good government group Reinvent Albany. “We have not had time to analyze its full scope.”

Kaehny compared the new expansion of emergency powers to another that is quietly up for renewal Thursday: Cuomo’s declaration of emergency over the subway system. The 2017 declaration, made when the subway system was breaking down at an alarming rate, allowed the MTA to bypass environmental and anti-corruption safeguards when seeking new contracts to do work. Under the emergency declaration, the MTA is currently allowed to bypass the competitive bidding process entirely and oversight from the state comptroller’s office.

The improving subway service hasn’t led to the removal of the emergency declaration.

Gottfried, who has served in the legislature since the 1970s, said he was perplexed because no governor had ever asked him to expand emergency powers during previous crises, whether it was the AIDS epidemic of the 1980’s, the response to Hurricane Sandy, or the 2014 Ebola outbreak.

“The governor and health commissioner never asked for anything like that, never said their hands were tied.”