BUFFALO, N.Y. — Nearly one month after filing a lawsuit challenging the executive authority granted NY Governor Andrew Cuomo to deal with the COVID-19 pandemic, plaintiffs in the case were back in U.S. District Court to file a motion for a preliminary injunction seeking a halt to the enforcement of those orders.
“We’ve seen a pattern among various district courts at the federal level of picking a choosing, we think due to political reasons, which cases they want to hear and fast track,” said Steve Felano, the founder of the 2nd Amendment rights group 2ANYS and one of the plaintiffs in the case.
According to Felano, the purpose of seeking immediate injunctive relief is so that the judge assigned to the case will have to move on it.
“There’s been a strategy to defer the cases long enough so that all areas of the state will open up and then they (the defendants) can do what is called mooting the case, which means dismissing it because there no longer exists any live controversy.
Extraordinary Powers
In early March, when sending a bill to state lawmakers that included funding for fighting coronavirus, the governor included a clause to give him unprecedented and unilateral powers which he insisted were needed in order fore the state to move quickly in the face of a pandemic.
This included, but was not limited to, granting him the ability to supersede all local laws, enact laws by edict or executive order (which is normally the function of the state legislature) and even suspend the ability of the state comptroller to audit the spending by the executive branch the taxpayer dollars used for the effort.
Lawmakers passed the bill.
“Our suit challenges on constitutional grounds the governor's ability in effect to rule the state by decree and challenges the legislature’s ability to outsource its legislative authority to the governor, which is not permitted by the state constitution,” Felano said.
Added attorney James Ostrowski, another one of the plaintiffs listed, "there's no emergency exception to the constitution. There's no health exception to the Constitution...if you use health or emergencies as an exception to the constitution you might as well not have a constitution, because it swallows the whole thing up and we’ve seen for the past three months.”
Unconstitutional
The plaintiffs contend that eliminating the role of the legislature lead to “disastrous” results, such as an administrative order from Cuomo’s Department of Health that forced nursing homes to take CPOVID 19 patients, a move they blame for causing thousands of deaths among the frail and elderly most susceptible to the effects of the coronavirus.
“That would not have been an issue more than likely if you had a range of folks deliberating on this issue and not just the governor making decrees on his own,” Felano said.
But by the powers granted to him, Cuomo has pretty much the authority to issue "any" directive under a declared disaster which the bill had been specially tailored to included "disease outbreak."
Further, the Governor not only has the sole authority to declare if a disaster exists, and when it is over, but also due to the bill adding "impending or urgent" to the definition of a disaster, could take action if he perceives as a threat to the state.
“There’s no limit to what he could declare an emergency, so in doing that he could essentially define his own terms of what he wants to take power for,” said Dwayne Whitmer, another of the plaintiffs who is also chair of the Erie County Libertarian Party.
For example, the plaintiffs say, Cuomo could dictate “global warming” or “climate change” to be a disaster and keep his emergency powers in effect once the threat of COVID 19 has passed.
“You can expand that definition if you want to create a tyranny,” said Ostrowski. “So, this is creating virtually unlimited power and consolidating that power in the executive branch, which is against every principal of American republic constitutional theory and law for the last 300 years. It’s extremely dangerous.”
How Long?
Cuomo has given no indication of when he might be willing to give up his emergency powers...nor have legislative leaders, who have insisted they can take them back, been publicly inclined to do so.
In a statement 2 on Your Side, Cuomo Senior Advisor Richard Azzopardi wrote, “"No one wants to go back to normal as much as we do, but much of the state is at best half opened and we are paying very close attention to the metrics. We are emerging from this pandemic, but New Yorkers must continue to be vigilant, continue to wear a mask, social distance and use hand sanitizer to help avoid the spikes and second waves experienced by other states and countries."
A Slippery Slope?
“We’re looking at this all wrong,” said Felano. “In effect we’re declaring this public health emergency and instead of putting out good information and trusting people to act rationally we’re just saying we have this one size fits all lockdown that’s gonna be applied to everyone. What is incumbent on the government to do is present the evidence making a compelling, rational argument that convinces free people to say, ‘okay that makes sense I’m going to comply’.”
“It may not even be possible at this point to put this nasty new totalitarian Pandora back in its box,” said Ostrowski. “We’re setting a precedent that allows any ruler or politician in power to declare anything an emergency and declare extreme executive power. The slippery slope we’re on and the precedent we’re setting is devastating…we just want the judge to enforce the constitution because that’s what judges are supposed to do. “