The Governor has acquired new powers (photo: Darren McGee/Governor's Office)
It may be Chicago’s Rahm Emanuel who’s famous for saying that you should “never let a good crisis go to waste,” but it’s New York’s Andrew Cuomo who’s taking the adage to heart. For proof, one need only look to the governor’s response to the recent coronavirus outbreak.
There should be few things less divisive than how we respond to a public health crisis. Increase funding for hospitals? Of course. Reduce barriers to disease testing? Without a doubt. So, when the governor called for $40 million in emergency funding to fight COVID-19, it would have seemed like a slam dunk. Then why did the chairs of the State Assembly and State Senate health committees vote against the response?
The reason they said “no” wasn’t the price tag of the bill, but the power grab buried inside. In a matter of hours, Cuomo pushed through language that not only gave him more money, but the broadest emergency powers of any governor in the country, according to an analysis by my organization, The Surveillance Technology Oversight Project.
Even before the new law, Cuomo had sweeping authority. The governor could suspend any law or regulation that got in the way of emergency response, which was enough to make civil rights advocates nervous. But not even George Orwell could have imagined what would come next.
The governor “may issue any directive during a state disaster emergency…necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive.” Strip away the legalese and we’re left with the power to do anything in time of crisis.
It’s staggering — the thought of one person having the power to rewrite state laws without so much as a second opinion from lawmakers. And this isn’t just for COVID-19, the emergency powers covers everything from tornadoes and volcanoes (do we have those in New York?), to drought, and vaguely defined “cyber events.” And, unsurprisingly, it’s the governor who gets to declare an emergency in the first place.
We’ve been down this road before. Few of us forget the panic-struck days after 9/11, when a public desperate to feel safe again supported legislation like the USA PATRIOT Act and the Authorization for Use of Military Force. In a matter of days, we rewrote the way our country has been governed for decades.
The PATRIOT Act, which was supposed to sunset just a few years later, became a fixture of American life, giving birth to the perpetual surveillance later exposed by the likes of Edward Snowden. The AUMF has been used to justify military strikes as recently as last year, when President Trump assassinated the Iranian military leader Qasem Soleimani. Prior to the AUMF, that sort of military action without Congressional approval would have been blatantly unconstitutional, but the Trump administration claimed that 18 years later, the AUMF is still giving the President a green light to kill nearly anyone he wants, at any time, and in nearly any place.
How long will Cuomo’s new emergency powers be with us? It’s hard to know. The new law is set to expire in just over a year, but the history of the PATRIOT Act teaches us that emergency laws may live on far longer than we first expect. Cuomo himself has indicated he thinks it makes sense as a permanent adjustment.
Even more alarming was the process. The legislation meant one of the most fundamental transformations of New York State government in generations, and it happened with almost no notice or debate. Even worse, the emergency powers were tied to the same legislation as COVID-19 funding, so those who voted against the bill now face the prospect of attacks claiming they opposed providing emergency pandemic cash.
Sometimes emergencies call for immediate action, but nothing the governor did here required the legislature to abdicate its role. The few reforms we’ve seen since last week could have been easily approved by lawmakers, and the emergency powers legislation could have been given at least time for a debate.
In a week when the state Legislature held hearings on everything from loan forgiveness for farmers to actuarial tables for health insurance, one would think that lawmakers would have time to discuss one of the most transformative New York bills in our lifetimes. Sadly, while it’s very easy to take new powers in an emergency, it’s generally a lot harder to roll them back.
Albert Fox Cahn is the founder and executive director of The Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group and a fellow at the Engelberg Center for Innovation Law & Policy at N.Y.U. School of Law. He writes the monthly Surveillance and the City column at Gotham Gazette. On Twitter @FoxCahn & @STOPSpyingNY.