Resistance Building against Governors' COVID Powers

Governors who have used COVID-19 as an excuse to enlarge their executive powers through extended and expansive emergency orders may have encountered the first serious state-level roadblock by an upstate New York Supreme Court judge, who ruled against the New York governor's abuse of public health law in a little known but critically important lawsuit.  The decision is likely to have spillover effects in other states due to the constitutional issue of separation of powers.  It may also alert citizens to the failure of their state legislatures to rein in out-of-control governors.

The lawsuit challenged "Isolation and Quarantine Procedures" Rule 2.13 (10 NYCRR 2.13), which allowed New York governor Kathy Hochul to use the state Department of Health to issue regulations allowing health officials to involuntarily quarantine and detain people diagnosed or suspected of being exposed to a communicable disease for indefinite periods of time, depriving them of freedom, due process, and property rights, all while avoiding legislative oversight.

Acting justice of the Supreme Court Ronald D. Ploetz ruled on July 8 that Rule 2.13 violates New York State law and is thus null, void, and unenforceable.  He said that the Executive Branch had infringed on separation of powers, trampled on the constitutional due process rights of citizens, and ignored existing state law governing isolation and quarantine for serious contagious diseases.

The lawsuit was brought by Republican state senator George Borrello, Republican Assembly members Michael Lawler and Chris Tague, and the civil rights advocacy group Uniting NYS.

The specifics of Rule 2.13 should be chilling to any American.  It allowed state and county health departments to quarantine people "diagnosed with or exposed to a communicable disease."  Health officials could force isolation or quarantine on people without proof of sickness without any redress of proving that they aren't sick.  Rule 2.13 failed to specify the severity of a communicable disease; it could be a common cold.  Local police would bear the responsibility for enforcement.

Officials could appropriate "residential or temporary housing," preventing residents from entering their own property if it is being used as a quarantine facility, and determine what items a quarantined individual can remove from his home.  Individuals or families targeted could be deprived of cell phones, documents, and other personal property, cutting them off from access to bank accounts.  Individuals and business owners could capriciously be deprived of their livelihoods.

While neither the lawsuit nor the judge addressed the issue, regulations like Rule 2.13 could be used by a chief executive for malicious purposes.  Since New York is heading toward the November 2022 gubernatorial, congressional, and state legislative elections with an unusually large number of seats in serious contention, including the governor's, the background of the rule's adoption deserves examination.

Involuntary quarantine had in fact been considered by the über-progressive state Legislature and decisively rejected.  The proposal for involuntary quarantine dates back to 2015, when Democrat state assemblyman Nicholas Perry introduced a bill to allow the "removal and detention of cases, contacts and carriers" by the governor or surrogates.  Rule 2.13's provisions closely parallel Perry's failed bill.  Perry's bill was toxic; it had no co-sponsors and no companion bill in the state Senate, failed to make it out of the Health Committee, was publicly denounced by the Health Committee's chairman (a Democrat), and was withdrawn in December 2021 just before Perry resigned to become ambassador to Jamaica.

The unusual nature of the rebuke was noted in an amicus brief filed by minority leader pro tempore Andrew Goodell, the Assembly's second highest-ranking Republican.  "This was an extraordinary repudiation of the bill, and a strong indication that the State Legislature had absolutely no desire to implement legislation that would authorize the involuntary confinement of people with suspected cases of an infectious disease without any due process."

Nevertheless, in the absence of legislative action, Rule 2.13 was adopted in March 2020 under the Cuomo administration and periodically renewed by Governors Cuomo and Hochul, most recently in April 2022.  The Department of Health acknowledged that it wanted to make Rule 2.13 permanent.

Rule 2.13 also ran afoul of existing statute.  Public Health Law 2120 governs isolation and quarantine for a litany of serious, highly communicable diseases and specifically details the legal process under which an individual who has been diagnosed with disease can be isolated and seek redress.

In reaching his decision, Judge Ploetz applied the four factors established by Boreali v. Axelrod (71 NY2d [1987]), which addressed whether administrative rule-making crosses the line into improper lawmaking.  These include whether the agency made independent value judgments or created its own comprehensive set of rules without legislative guidance, whether the legislature had deliberated on the matter, and whether the agency used special expertise to develop the challenged regulation.  The judge concluded that three of the four factors favored the petitioners, and one was a toss-up.

State legislatures are concerned about the use of emergency executive orders. Since 2021, six states have expressly authorized their legislatures to declare a state of emergency and another two dozen have bills pending to limit their governor’s emergency powers or provide oversight according to a survey conducted through mid-June by the National Conference of State Legislatures.

The Rule 2.13 lawsuit, which is likely to be appealed to the New York Appellate Court, could have national import.  Can governors violate separation of powers to amass control?  Can unelected bureaucrats use the mere threat of a communicable disease to give them the authority to throw citizens into quarantine for indefinite periods of time with no due process to achieve less than righteous ends under the guise of public health?  The answer, even in progressive New York, is an emphatic "no."

Linda R. Killian is a founding member of Republican Women of Westchester and a retired financial executive, now researching and writing about policy issues.

Image: Metropolitan Transportation Authority of the State of New York via Flickr, CC BY 2.0 (cropped).

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