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Daily News: Lawmakers and legal experts call Cuomo coronavirus bill a power grab

March 3, 2020

ALBANY — A bill authorizing $40 million in emergency funds to fight the coronavirus crisis also gave Gov. Cuomo a little too much power, some lawmakers and legal experts say.

The measure, passed as the state begins to see its first cases of the fast-spreading illness, grants the governor the ability to “issue any directive during a state emergency … necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive.”

Critics from both sides of the aisle raised issues Tuesday with the expansion of Cuomo’s emergency management authority.

Albert Fox Cahn, a lawyer who regularly testifies in front of the City Council on civil liberties and privacy issues, argued that the executive already has “immense powers” to declare emergencies and said the law tramples on the state Constitution.

“History tells us that it’s easy to give up rule of law in a crisis, but hard to get it back,” he warned, pointing to the Patriot Act.

“This essentially is writing the governor a blank check to do whatever he wants in an emergency situation and defining emergency very broadly,” Cahn said. “The governor already had incredibly broad powers under existing law, and they haven’t pointed to any specific reason for why this new ability to implement emergency directives is needed.”

Assemblyman Richard Gottfried (D-Manhattan), the chairman of his chamber’s Health Committee, argued during a late-night floor debate on Monday that no past governor has ever asked for the powers Cuomo requested during any previous public health emergencies.

“The governor and health commissioner have, for decades, had extraordinarily broad executive powers,” he told the Daily News on Tuesday. “I’ve never heard a governor or health commissioner in any disaster or emergency say that there was something that needed to get done that couldn’t get done because of a lack of what this bill does.”

Previously, the governor had the ability to suspend laws that could hinder or delay the state’s response to a disaster. The new law allows Cuomo to issue edicts “necessary to cope with” potential disasters, ranging from a “disease outbreak” to a volcanic eruption.

The bill comes with a built-in sunset clause next April, but could easily be extended by the Legislature.

Cuomo argued Tuesday that the ability to suspend a law was not enough.

“OK, I suspend an existing law. But that does not give you the ability to do anything? You can’t do anything. How do you do a quarantine? How do you do anything?” he said during an event at the Capitol. “Suspension of an existing law means I am removing an impediment form an agency. But it does not give you the ability to affirmatively do anything. And in this situation, the government has to act.”

The measure passed the state Senate by a 53-4 margin, with two Republicans and two Democrats voting against the bill. The Assembly approved the measure just before midnight Monday.

Sen. Gustavo Rivera (D-Bronx), the chairman of his chamber’s Health Committee, noted the importance of approving the funds, but said he couldn’t in good conscience support legislation expanding the governor’s power.

“I understand that there is a public health crisis that we have to be ready for,” Rivera said, before taking aim directly at Cuomo. “But even a cursory look at this bill told me it was way too much authority, not just period, but too much authority for this guy.”