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Long before the Covid pandemic, most Democrats in Albany largely took a back seat to Gov. Andrew Cuomo and chafed at a balance of power that was too uneven for their liking. Then came 2020, and with it the coronavirus pandemic, stay-at-home orders, and mass closures of businesses and schools.
The Legislature wasn’t able to meet in person, and lawmakers’ grumbling stayed mostly among themselves.
News that the Cuomo administration withheld nursing home Covid-related fatality data from the Legislature as it handled a federal probe rocked the Statehouse last week, and an aftershock followed this week with newspaper reports that the FBI and federal prosecutors are examining the governor’s handling of long-term care facilities like nursing homes. A Cuomo spokesperson said the Department of Justice has been looking into the matter for months and the governor’s office is cooperating.
The state Senate’s majority leaders said they’re writing a bill that would curb some of the expanded emergency powers afforded to Cuomo (D) at the start of the coronavirus pandemic.
Some lawmakers are calling for the additional powers to be revoked altogether.
“Taking back the powers that we granted him in the beginning of the pandemic is one of most important checks on the system of democratic balances that we can do, because if we take back that power, then the Legislature will be able to have more oversight of the decisions that are made,” state Sen. Alessandra Biaggi (D) said. “Right now we don’t have oversight because he makes directives without us.”
The additional authority given to Cuomo in March 2020 was already scheduled to end in April, but just introducing legislation would demonstrate lawmakers’ frustration and perhaps also their willingness to go further. Democrats have a supermajority, so if they pass a measure the governor opposes, his choices would be to comply or invite a veto override.
An override would “be a powerful rebuke and would change the political environment,” said Gerald Benjamin, a distinguished professor of political science at the State University of New York at New Paltz.
An override could tip the balance of power in the Legislature’s favor during negotiations, with an April 1 state budget deadline looming, he said.
“This has been building up for a long time,” Benjamin said. “The longer you’re governor, the more these incremental matters add up and add to each other and you have a bunch of people mad at you…for different reasons.”
Cuomo is three years into his third four-year term, and he’s said he plans to run for a fourth term in 2022.
“He keeps information to himself, makes decisions in a very small political circle,” said Senate Health Committee Chair Gustavo Rivera (D), who has served in the Senate since 2010. Rivera and Biaggi are among about a dozen state senators who’ve called for a repeal of Cuomo’s emergency powers.
There also are a few bills to revoke Cuomo’s additional powers early, including legislation (S.4888) sponsored by Biaggi and Assemblyman Ron Kim (D).
“We basically have been cut off from being able to do our jobs,” Biaggi said.
The law granting Cuomo emergency authority (S.7919/A.9953) was enacted just as the state’s second confirmed case of Covid-19 was reported in Westchester—long before coronavirus cases topped 10,000 a day and New York was the epicenter of the pandemic in the U.S. Cuomo was given the legal authority to issue by executive order any directive “necessary to cope with the disaster,” and even suspend local laws, according to the bill language.
Using those powers, Cuomo issued hundreds of sweeping directives and imposed mandates on hospitals, nursing homes, businesses, local governments, and schools.
“What the governor has been allowed to do under the emergency authorities, is essentially rule by decree,” said Hermes Fernandez, a partner at the law firm Bond, Schoeneck & King in Albany. It varied drastically from the powers previously afforded to him during emergencies, he said. “It’s a much more expansive power.”
Cuomo and his administration have fallen under intense scrutiny for their handling of nursing homes and withholding of the death toll of patients in those facilities.
Following an investigation, state Attorney General Letitia James released a report in January accusing the administration of undercounting the deaths and obscuring data to assess the risk in patients.
On Feb. 3, a New York Supreme Court Judge ordered the state health department to release data that revealed thousands more deaths among nursing-home residents than previously revealed. In all, about 12,245 nursing-home and other long-term-care residents in New York have died of confirmed Covid cases, according to Feb. 17 state data. About 3,000 additional deaths are attributed to the virus, but unconfirmed.
Last week in a closed meeting, Cuomo’s top aide told Democratic lawmakers that the state had withheld the nursing home fatality data they had requested in August, and later clarified that they planned to provide the data after they gave the Department of Justice the information it asked for.
Cuomo stopped short of an apology in a Monday briefing.
“Apologize? Look, I have said repeatedly: we made a mistake in creating the void,” he said. “When we didn’t provide information it allowed press, people, cynics, politicians to fill the void.”
‘Poke him in the eye’
The minority party in the Assembly, which has little power to decide what the Legislature does, on Thursday announced plans to start an impeachment commission.
“Republicans are trying to capitalize on this politically, and also what has happened reinforces and validates their concerns about him having these powers,” said Luke Perry, professor of political science and director of the Utica College Center of Public Affairs and Election Research.
Assembly Health Committee Chairman Richard Gottfried (D) said he’s against taking away Cuomo’s additional powers as “some way to poke him in the eye.”
“Most of the problems in our nursing homes have very little, if anything, to do with any of his executive orders,” he said.
Cuomo was asked about his special authority on Monday. “The Legislature can reverse any action that I take, not even by a bill, just passing 50% of the Assembly and the Senate,” Cuomo said. “They have never reversed a single action.”
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