Executive Order Statutory and Constitutional Violations

Throughout the pandemic, Governor Cuomo has issued numerous Executive Orders that exceed his emergency authority and violate the New York State Constitution and the United States Constitution. These Executive Orders have not been challenged because of the widespread public panic created by the pandemic, the anticipated short-term nature of the Executive Orders (which have been extended numerous times), and the virtual closure of the courts. The statutory and Constitutional provisions that were violated by these Executive Orders are outlined below.

A. Statutory Restrictions. The State legislation that authorized the governor to declare a state-of-emergency for a disease outbreak has several clear and explicit limitations:

All executive orders must be “subject to the State Constitution, Federal Constitution, and federal statutes and regulations.” While it should go without saying that the Executive Orders were subject to the State and Federal Constitutions, the statutory language is explicit. As outlined below, several Constitutional provisions have been violated.

The governor was only given the power to “temporarily suspend” laws, rules and regulations; he was not given the power to rewrite or enact new laws or make declarations that apply several months in future.

All executive orders must by “reasonably necessary to aid in the disaster effort.” There was no authority for the governor to issue executive orders to address issues outside of the pandemic, such as waiving rental late payments regardless of income or wealth of the renter, extending unrelated statute-of-limitations, or ignoring other statutes not directly related to the emergency declaration.

All executive orders must “provide for the minimum deviation …. consistent with the goals of the disaster action.” The one-size-fits-all approach resulting in statewide closures in response to the epidemic in the greater New York City area (when other areas of the State were experiencing few if any infections) is inconsistent with the “minimum deviation” requirement. There have been over 260 State and local laws affected by Executive Orders, an unprecedented number.

The statute requires that “when practical, specialists shall be assigned to assist with the related emergency actions to avoid needless adverse effects.” Unfortunately, this has been a one man show, with little effort to avoid needless adverse effects.

B. Federal Constitutional Restrictions. There are numerous Federal Constitutional restrictions that were violated by the Executive Orders:

First Amendment- Freedom of Religion and Assembly. Although the governor could impose reasonable health-related restrictions on religious services and group gatherings (masks, social distancing, disinfecting, etc), the complete ban on religious services or any gathering violates both the statutory authorization (minimum deviation) and the First Amendment right to assemble and freedom of religion.

Second Amendment- Right to Bear Arms. The governor prohibited the sale of guns or ammunition to the general public, regardless of the level of safety practiced by those who sell such products.

Fifth Amendment- Due Process and Compensation. Due process is required for any proceeding that denies a citizen of “life, liberty, or property,” yet there was no due process whatsoever to appeal any decision over whether a business could remain open or to challenge any other interpretation of an Executive Order. The Fifth Amendment also requires government to compensate an owner whenever it “takes property for public use,” such as requiring private landlords to provide free public housing to existing “renters.”

Fourteenth Amendment- Equal Protection. No State can “deny to any person … the equal protection of laws,” which means that everyone in the same situation must be treated equally. Wal-Mart cannot be fully open while local retail stores that sell the same products are required to close (even though the local stores can implement the same safety protocols). Likewise, manufacturers cannot be closed based on the products they make rather than the safety of their operations. Taxpayer funded “green energy” construction continues while all other similar construction was stopped.

Contract Clause. Article I, Section 10, Clause 1 states that “no state shall… pass any … law impairing the obligation of contracts,” which means that the governor cannot waive contractual late fees or otherwise re-write valid contracts.

C. State Constitution. There are numerous provisions in the State Constitution that were violated by the Executive Orders:

Separation of Powers Doctrine. The Executive branch cannot usurp the power and authority of any co-equal branch of government.

Legislature. “The legislative power of this State shall be vested in the senate and assembly.” Art. III §1. “[N]o law shall be enacted except by bill.” Art. III, §13. The governor cannot unilaterally enact any new law. He can only temporary suspend an existing law, and then only to extent reasonably necessary to address the crisis.
Judiciary. The governor cannot unilaterally restrict the jurisdiction of the courts (no evictions or foreclosures) or expand its jurisdiction (statute of limitations for child abuse cases). Art VI.
Education. The Board of Regents derives its authority directly from the State Constitution. Art XI.

Freedom of Worship. “The free exercise and enjoyment of religious profession and worship … shall forever be allowed in this State to all mankind.” Art I, § 3.

Compensation. Private property shall not be taken without just compensation. Art. I §7.

Equal Protection. “No person shall be denied the equal protection of the laws of tis state or any subdivision thereof. Art I § 11.

Common Law. The common law is continued, subject to laws adopted by the legislature. Art 1 §14.

Absentee Ballots. “The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who … may be absent from … their residence … and who … may be unable to appear personally at the polling place because of illness or physical disability, may vote…” Only the legislature can provide for absentee balloting, only by general law, and only for those who are absent, ill, or disabled. The governor cannot, by executive order, authorize mail-in-absentee ballots for everyone and eliminate in-person balloting.

D. Examples of Violations.

Worship Services. Although the governor could require masks, social distancing, disinfecting, and other safety procedures, the governor cannot simply ban worship services, either directly or indirectly by limiting the number of people who can attend. Both the federal Constitution and the State Constitution deem worship services as “essential.”

Freedom of Assembly. The governor can require appropriate safety requirements but cannot unilaterally ban all peaceable assemblies or set arbitrary limits on group size. One of the most egregious examples of this violation was his directive that only 10 people could attend any particular Memorial Day Service honoring those who gave their lives to protect our First Amendment right to assemble.

Business Closures. The governor cannot close local retailers while allowing Wal-Mart, Home Depot, and others to sell the same goods. If it is safe to shop at a big box national chain, it is equally safe to shop at local stores and businesses that are following the same safety protocols. Closing local retail stores that sell identical products violates the equal protection clause.

Manufacturing Winners and Losers. The governor cannot pick losers and winners based on the product that is manufactured, rather than the safety of the manufacturing process, without violating the equal protection clause. If a manufacturer can safely continue to produce a product that the governor deems “essential,” the identical manufacturers using identical production facilities and same safety protocols can safely produce other products.

Leases and Mortgages. The governor cannot simply waive valid contractual late fees for leases or mortgages, without regard to the ability of the renter or mortgagor to make timely payments. Some renters and mortgagors are receiving more income from unemployment than they received while working, while others have adequate income or wealth to make timely payments; relieving everyone from any obligation to make timely payments in compliance with their valid contracts violates the federal contract clause.

Absentee Ballots. The governor cannot unilaterally authorize/mandate the use of absentee ballots for school board elections. Only the State Legislature, by general law, can authorize such ballots, and only for those who are absent, ill, or disabled. There is no reason why people who can safely shop for groceries and other products while wearing a mask cannot also safely vote in an election using the safety protocols in a school gymnasium.

Statute of Limitations. The governor cannot unilaterally extend a statute-of-limitation. Filing a lawsuit has nothing to do with the virus. The summons and complaint can be prepared, signed, notarized, and filed electronically.

Abuse of Power. Although the statutory provisions require the “minimum deviation” from existing statutory provisions, Governor Cuomo has used his executive Orders to suspend or rewrite over 260 statutory or regulatory provisions. Many of the provisions he has suspended or rewritten have nothing to do with reducing the disease outbreak, but relate solely to some of the ramifications of his own actions (such as waiver to rental or mortgage payments, extending statute of limitations, or other actions unrelated to disease control).

Statewide Shutdown. In direct violation of the statutory provision that any Executive Order provide for the “minimum deviation,” the governor shut-down the entire state when the greater New York City area was facing an epidemic, including many upstate counties hundreds of miles away that did not have a single confirmed case. For example, he shut down SUNY Fredonia in a county with no confirmed cases and sent many students home to NYC, Long Island, and other areas with high infection rates.

Failure to Mitigate. Governor Cuomo failed to comply with the statutory requirement that “specialists … be assigned to assist with the related emergency actions to avoid needless adverse effects.” As a result, the health and mental health issues, economic devastation, the horrific impact on state and local tax revenues were needlessly exacerbated, especially in those areas of the State with very low infection rates.