Gov. Cuomo at one of his coronavirus briefings (photo: Mike Groll/Governor's Office)
The consequences of poor social distancing, inadequate supply chains, and nearly every other facet of our COVID-19 calamity are nothing short of life and death. But as New York endures a disaster unlike any in our lifetimes, as we see our morgues filled and our store shelves stripped bare, this teeming tidal wave of death might upend most fundamental assumptions about our way of life.
We are about to face a deeply dangerous moment, not just because of COVID-19, but because of the extreme measures we use to stop it. As the weight of a previously unimaginable magnitude of human suffering turns the bedrock of civil society to quicksand, we run the risk that our core institutions might buckle and that we will undermine the rule of law as we know it.
If one looks for an American precedent for the extraordinary powers granted Governor Andrew Cuomo in this crisis, one will come up short. Whether you look at past pandemics or times of war, never before has our state entrusted one man with so much control over so many, with so few safeguards. Our courts are shuttered, our legislators are struggling to meet, and more and more reliance is placed in the executive branch. Since March 7, more than a dozen executive orders have modified everything from licensure requirements for funeral directors, to medical malpractice liability, to environmental protection laws, and even our election timelines.
No, there is no precedent in American history for this type of emergency action, but there are ancient parallels to a society where, “in times of plague,” a leader would be given extraordinary powers: the Roman Republic.
Long before the virtues of the Republic’s rule gave way to the tyranny of imperial Caesars, the Roman Senate saw the appointment of temporary “dictatores” as an emergency measure to counter existential threats, or as we would call them today “dictators.” Many will recoil at the use of the term “dictator,” with its modern-day connotations. The word may be centuries old, but it’s typically associated with modern-day war criminals — men marked by their violence and human rights violations. The dictators of Rome were a different creature, a single official granted extraordinary powers, but subject to one overriding restriction: temporary rule.
Unlike the dictators of today, whose tenure is often marked by permanent power, the dictators of Rome were a short-lived ‘necessary evil,’ citizens of the republic granted singular control for six months and no more. They were a walking contradiction, men given unilateral control to safeguard a society whose overarching aim was to prevent the consolidation of power. Their role was to suspend republicanism for a short time to safeguard it for the longer-term.
A “Dictator’s authority was bounded only by the requirement that he fulfill his task or lay down his power within a set time, and the requirement that he not change the constitution,” wrote Nomi Claire Lazar in “States of Emergency in Liberal Democracies.” As I explained in last-month’s column, Governor Cuomo’s new emergency power has only two limits: he cannot change the Constitution, and his powers expire next year. Until that time, Cuomo can repeal or enact any law that he declares is needed to respond to COVID-19, any law, so long as he doesn’t violate the Constitution. And he hasn’t let that power go idle, introducing a new executive order (on average) every other day.
At a time when Cuomo has unprecedented popularity, when many of his emergency actions are saving lives, I know how few will care about “legal niceties” of checks and balances. But if we continue to rewrite the rules that have governed New York State since 1777, we have to be crystal clear about how we prevent these changes from undermining the values that are central to an open and democratic society.
It’s hard to imagine how New York’s founders, the men and women who wrote lengthy treatises on the need to “expel civil tyranny” might respond to a governor so empowered and emboldened as the one we have now. They too were students of history and knew well that those granted extraordinary powers to face extraordinary threats are rarely willing to part with them.
The sad truth is that there is no one right answer on what to do. If we blind ourselves to the crisis and fetishize the separation of powers, it will only slow our response and cost lives. But if we simply empower the executive and call for his actions, we create truly unprecedented dangers to democracy. A single man, free to act without approval or oversight, will make mistakes. Competing viewpoints are not merely a philosophical luxury, they are key to navigating complex decisions. This is why the legislature must keep a close eye on Cuomo’s actions, reasserting its authority and overriding his decrees when needed.
The reason New York kept checks on the powers of governors, even in times of crisis, for nearly 250 years is because we know that human beings are fallible. We know they will make mistakes. And we know that left to their own devices, they will wield power to their own ends. Let’s just hope that we follow the example of those earlier Romans and insist that no matter how grave this pandemic becomes, that we make sure the dictator yields his powers after a brief time, even if the threat remains.
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.