Executive Order Powers Legislation Moves Forward in New York

On March 3, 2021, the New York State Senate and Assembly advanced new legislation to address concerns regarding the coequal treatment of the legislative branch in the state’s response to the COVID-19 pandemic.  The legislation, Assembly Bill 5967 (Heastie) / Senate Bill 5357 (Stewart-Cousins), was passed on Friday, March 5^th and is expected to be signed into law thereafter by Governor Andrew Cuomo.

The bill’s legislative intent states that the powers granted to the Governor under Chapter 23 of the laws of 2020 (“Chapter 23”) were conveyed at a time of great uncertainty regarding the state’s response to COVID-19, and of the virus itself.  The legislature notes the much has been learned, and great strides made in the intervening period, and that it is time to safely restore the previous balance of power between the branches of government in the state. The bill’s provisions propose to restore that coequal balance while providing a structure for the state to continue under existing Executive Orders in effect at the time of the enactment of the bill.  Provisions of the legislation include:

• Repeals the Governor’s expanded powers under section 2 of Chapter 23.
• Any directive issued under authority provided by Chapter 23 and active at the time of the repeal of Chapter 23 is permitted to remain in effect for 30 days after that repeal. These directives may be further extended for additional 30 day periods or be modified by a subsequent Executive Order if:
  • The purpose of the modification or extension is to issue a public health directive related to managing the COVID-19 pandemic; and,
  • The Governor provides 5 days’ notice to the legislature containing:
    • A certification of the public health directive; and,
    • A description for the need to extend or modify the directive, and the threat to public health or safety that warrants the extension or modification.
  • Should the Governor certify that there is an exigent need for the proposed extension or modification to address an imminent threat to public health or safety, he must provide notice as soon as possible to the legislature prior to its issuance.
  • The Governor must provide opportunity for the relevant Committee Chairs of the legislature to comment on any directive issued.
  • In the event that a modification or extension addresses a specific municipality, the Governor must provide 5 days’ notice to the municipality’s executive leader, and the municipal legislative body containing:
    • A certification of the public health directive; and,
    • A description for the need to extend or modify the directive, and the threat to public health or safety that warrants the extension or modification.
  • Should the Governor certify that there is an exigent need for the proposed extension or modification to address an imminent threat to public health or safety, he must provide notice as soon as possible to the municipality’s executive leader, and the municipal legislative body prior to its issuance.
  • The Governor must provide opportunity for the municipality’s executive leader, and the municipal legislative body to comment on any directive issued.
• Prohibits modifications to existing Executive Orders that are not solely for the purpose of:
  • Altering the numeric amount or percentage of individuals, businesses, vaccination locations or providers or administrators, or other entities impacted by a directive; or,
  • Placing additional restrictions or reducing existing restrictions related to testing, quarantine, social distancing, air quality or filtration, or mask requirements, for any entity located in the state;
    • This would include, but not be limited to, modification of individuals eligible for vaccination or modification of limits on the seating capacity of a business to operate during a state of emergency.
• Prohibits curtailing municipalities from issuing local executive orders under their existing power, except where such an order would be superseded due to a conflict with a state order.
• Prohibits the extension or modification of an Executive Order by the Governor without response to comments from the legislature or municipal entities, as appropriate.
• Permits the legislature to repeal any Executive Order under Chapter 23 by concurrent resolution.
• Permits the legislature to terminate a state disaster emergency at any time by a concurrent resolution of the houses.
• Requires a current, searchable website posting of all suspensions and directives issued pursuant to Executive Orders 202 or 205.  The website must be updated every 30 days to include comments on such orders, and their corresponding responses.

The Manatt team will continue to monitor the progress of the legislation, and looks forward to providing additional information as it becomes available.