Post-Pandemic Governing

If you have been following my posts, you will see a thread that generally runs through my writing; a distrust of government power. I got a taste of it while being manhandled in family court. My experience changed my view of State power and the lengths people in government will go to limit our freedom.

When I see people around me accepting the mandates coming from governors across the nation with little pushback, it is unsettling.

On March 2nd, a day after the first confirmed Covid-19 case was identified in the state, the New York State Legislature gave Gov. Andrew Cuomo unilateral control over decision-making amid the pandemic for over a year. These powers expire on April 20, 2021. Andrew Cuomo has full authority over any state or local law, so long as it is related to a disease outbreak.

New York State law was amended in ways that Governor Cuomo has tapped into nearly every day since.

New York State:

  • Added “impending or urgent” to the definition of a disaster.
  • Added “disease outbreak” to types of disasters, like terrorism or storms, covered by emergency declaration powers.
  • Greatly expanded the governor’s emergency powers by adding an extraordinary new ability: the issuance, via executive order, of “any directive “… “to cope with the disaster.”

Since then, Governor Cuomo has used those powers to not only suspend laws but, many argue, to also create new regulations-which is, according to the New York State Constitution, typically the sole duty of the legislature. The legislature retained a role to play, as emergency decisions can be overturned by legislative action. However, I firmly believe it is time to review and revise power delegation.

Governors all across the nation are holding on to emergency powers granted to them months ago. Many have already changed hundreds of state laws without oversight. Ruling by fiat has supplanted the role of the legislature.

Governor Andrew Cuomo has told reporters that he could not give a date for when he thinks it’s appropriate that his emergency powers end, saying “ when COVID ends, the emergency ends.” What does that mean? What metric is he using to tell the public when it’s “safe?” What is the goal? Is the governor waiting for no one to die from COVID-19? For how long are we to have zero deaths?

History has shown a very fine line between protecting citizens and the erosion of their civil rights-that line is often blurred in times of great uncertainty. The American form of representative democracy primarily hinges on the balance of power between co-equal branches of government. This structure is reflected in the Constitution.

An elected official’s emergency powers should be limited to a specific period and only extended due to the legislature’s approval. It is a terrible idea to have one person make significant economic, social, and business policy decisions.

The global pandemic is a reason for temporary emergency action. Still, we must acknowledge there can be no doubt that other pressing problems continue to exist and fester-including those exacerbated by lockdowns and the resulting economic dislocation.

Even without any malevolent intent, events such as wars, significant economic crises, and now pandemics, seemingly result in increasing state power into the lives of ordinary citizens. Once the government develops new capacities to expand their power, they discover it’s difficult to allow it to expire.

This is not new. Congress has done little to deter the federal executive branch from using authorizations far beyond its original scope. Since 9/11, G.W. Bush, Obama, and now Trump have used authorizations that have extended to new conflicts. Trump’s ordering of the assassination of Iranian top general, Qasem Soleimani, is the latest example.

Over many years, Congress has passed statutes that give the president extensive powers to act in emergencies. Those statutes were passed on the assumption that presidents would be responsible people. That has not been proven to be true. Given Donald Trump’s disregard for basic rule-of-law norms, the constitutional republic was already at severe risk before the pandemic. COVID-19 heightens that risk. Why would anyone think that governors all across the United States will not abuse their power without a proper check on their limits?

The Model State Emergency Health Powers Act, written after the 9/11 attack, expands government authority in emergency times, including the power to quarantine. It was written out of concern of a biological attack. The ACLU and legal scholars have warned that legislation like this has potential ethical and civil liberties issues.

While we may be in a worldwide pandemic, it is worth remembering the lessons of the past. History shows that politicians who are willing to bend the rules will find a way to benefit from any crisis.

We need our state legislatures to act to address the people’s business and not surrender their power. In the United States, where individualism is a crucial element of the national ethos, there is a fine line between freedom and safety. We cannot surrender transparency and oversight. Our Constitution is a set of guardrails against tyranny. The same norms should apply on the state level.

As lockdown measures grow increasingly restrictive, continued vigilance and checks on power will help ensure our democracy does not fall victim to the pandemic. Without it, unethical leaders will assert their authority and prerogatives while showing hunger for control of their constituents’ behavior, to the point that stretches the bounds of civil society and self-governance.

How will this play out in the long run?

As government worldwide becomes increasingly intrusive in people’s lives due to the pandemic, what powers will they want to retain when it ends? How will citizens react?

Clayton Craddock is an independent thinker, father of two beautiful children in New York City. He is the drummer of the hit broadway musical Ain’t Too Proud. He earned a Bachelor of Business Administration from Howard University’s School of Business and is a 28 year veteran of the fast-paced New York City music scene. He has played drums in several hit broadway and off-broadway musicals, including “Tick, tick…BOOM!, Altar Boyz, Memphis The Musical, and Lady Day At Emerson’s Bar and Grill. Also, Clayton has worked on: Footloose, Motown, The Color Purple, Rent, Little Shop of Horrors, Spongebob Squarepants, The Musical, Evita, Cats, and Avenue Q.

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