A Step Forward, But Legislature’s “Rollback” Bill Leaves Most of Governor’s COVID Emergency Powers Intact

March 3, 2021

Reinvent Albany Preliminary Analysis (Updated March 5, 2021)

A Step Forward, but Legislature’s Emergency Powers “Rollback” Bill Leaves Most of the Governor’s COVID Emergency Powers Intact, Including Budget “Withholding” Power

Existing Executive Order 202 COVID-19 Directives Could Be Continued, with Limitations and Added Comment from Legislature and Local Governments

The legislature intends the COVID-19 emergency repeal bill S5357/A5967 to “restore the pre-pandemic balance of power of the governor and legislature.” While a step forward, the “rollback” bill does not change most of the governor’s existing COVID emergency directives or touch either the governor’s new budget “withholding” power or his substantial pre-COVID emergency powers which allow the governor to suspend broad sections of law. (For example, the pre-COVID, Emergency Order (EO) 168 related to the MTA has been continued 46 times and suspends large sections of law related to competition bidding and anti-corruption procurement safeguards.)

The legislature’s narrow bill focuses on extending or modifying directives the governor has issued under COVID-19 EO 202. The bill limits the governor’s discretion to extend or change existing directives, and adds the ability for the majority members of the Legislature and local governments to be notified of the Governor’s intent to extend or modify the order and to provide formal comments. Legislative and local government comments could be viewed by the public online, in addition to the Governor’s justification for the directives. The Department of Health would need to certify that the continuing directive addresses only the spread/reduction of the COVID-19 virus, facilitates vaccine distribution, or requires the use of face coverings.

This bill does not address the Governor’s emergency budget powers, including his ability to withhold billions in funding as part of the April 2020 budget agreement. Unfortunately, the Governor has not complied with the budget law, which requires formal cuts and specific notice to the Legislature of withheld funding.

Instead, in 2020, the governor withheld $3.1B from agencies, local governments and authorities like the MTA while notifying the Legislature of the specifics of only 25% of these withholdings. It is now March 2021, the final month of the state’s fiscal year, and the Governor has still not presented a formal plan showing how withheld funding will be restored nor final cuts made for individual agencies, local governments, and programs.

Below is a summary of the COVID-19 emergency powers repeal legislation based on Reinvent Albany’s preliminary review.

1. Repeals the 2020 law that gave the Governor the ability to issue directives and expanded the definition of an emergency to include disease outbreaks, however:

  • Existing EO 202 and other COVID-19 orders can be continued for 30 days and their directives can be extended and modified for the duration of the pandemic, with the following conditions:
    • The directive must be certified at the sole discretion of the Commissioner of Health to be related to public health and the COVID-19 pandemic in terms of addressing the spread/reduction of the virus, facilitating vaccine distribution, or requiring use of face coverings. This must include an explanation of how the directive will address these issues. Directives that go beyond the bounds of these narrow categories could not be continued, such as the directive that requires local governments to get pre-approval by the state of their own executive actions to address COVID, provided they do not conflict with state orders. Directives related to tax deadlines, for example, may also not continue.
    • Modifications of the order are to be limited, such as adjusting the number or percentage applied under restrictions, or eligibility criteria for vaccinations. Modifications that go beyond the allowable categories of directives – ones address COVID spread, vaccines, or face coverings – would be more likely to be rejected in a legal challenge, or potentially by the Legislature.
    • The Governor must notify Committee Chairs and the Speaker of the Assembly and Temporary President of the Senate — not minority the leaders — as well as local governments 5 days prior to extension or modification of the directive justifying the need for it. The State Legislature and local governments can provide comment, which must be responded to by the Governor. The Governor is not required to make changes based on the comments, though comments and the Governor’s response would be online for the public to see. The initial notification is not required to be made publicly available.
    • Final directives must be online in a searchable format, including all comments received by the Governor from the State Legislature and local governments and the justification for the extension or modification of the directive. Currently there are more than 100 separate orders or renewals/modifications of orders that are difficult for the public to parse to understand the full scope of the Governor’s emergency directives.

    2. The provisions allowing extensions or modifications COVID-19 orders like EO 202 would be terminated when the COVID-19 emergency declaration ends (the emergency declaration itself can be rejected by the Legislature – see below).

    3. Specifically does not address pre-COVID emergency powers of the Governor – in fact explicitly says that it is not intended to address them.

    4. Affirmatively says that local governments are able to issue their own executive orders, unless they conflict with state directives. Additionally, the directive that required pre-approval by the state for local orders could not be extended.

    5. Adds the ability of the Legislature to reject the issuance of a state disaster emergency under Executive Law, providing another tool for the Legislature to reject the Governor’s emergency orders. The Legislature previously had the ability to reject issuance of executive orders that suspend sections of law. This would be done through a majority vote on a concurrent resolution.

    6. The bill is largely not amending Executive Law section 23 related to emergencies, but instead appears to be part of the state’s unconsolidated laws.