Exploring the Emergency Powers of the Governor in New York State

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By Ariel Gougeon*

April 3, 2023

Introduction

On March 7, 2020, former Governor Andrew M. Cuomo issued his first Executive Order of the COVID-19 pandemic, declaring a statewide disaster emergency.[1] For more than two years, that declaration gave the Governor access to wide-ranging authority to address the ongoing pandemic without the involvement of the Legislature.[2] The extensive use of emergency powers during the first years of the pandemic was perhaps the most notable in recent New York history, but the use of such authority is not uncommon. During her term so far, Governor Hochul has issued—and renewed—multiple Executive Orders declaring disaster emergencies in response to other public health emergencies, natural disasters, and conditions at Rikers Island.[3]

These recent Executive Orders have prompted greater public awareness and scrutiny of the emergency powers of the Governor, revisions to those powers, and calls for further reform.[4] This explainer lays out the statutory and constitutional bases for gubernatorial emergency powers in New York, as well their current limitations.

Where Do the Governor’s Emergency Powers Come From?

New York State Constitution

The New York State Constitution grants the Legislature the “power and immediate duty . . . to adopt such other measures as may be necessary and proper for ensuring the continuity of governmental operations” during times of emergency caused by “enemy attack or by disasters (natural or otherwise) . . . .”[5] The Constitution does not explicitly grant powers to the Governor in times of emergency. However, the New York State Legislature has passed laws granting the Governor certain powers when deemed necessary to address emergency situations, with limitations.

New York Executive Law

Three provisions of New York Executive Law grant the Governor certain powers in times of emergency.[6]

First, Executive Law § 28 expressly authorizes the Governor to declare a statewide emergency by Executive Order if the Governor determines that a disaster has already occurred or may be imminent and local governments are unable to respond adequately.[7]

Second, Executive Law § 29 authorizes the Governor to direct state agencies to provide assistance, coordinated by the Disaster Preparedness Commission, if the Governor has declared a statewide disaster emergency.[8]

Lastly, Executive Law § 29-a authorizes the Governor to suspend “specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency” during a declared state of emergency “if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.”[9]

An example of the use of these provisions took place when Governor Kathy Hochul exercised all three emergency powers in anticipation of a severe winter storm in Western New York. Pursuant to Executive Law § 28, Governor Hochul declared a disaster emergency in several Western New York counties on November 17, 2022, because the storm was expected to “create hazardous conditions” which would pose an “imminent danger to public transportation, utility service, public health, and public safety systems.”[10] Pursuant to Executive Law § 29, Governor Hochul directed the implementation of the State Comprehensive Emergency Management Plan and authorized state agencies to assist with the response to the storm as necessary.

By the same Order, Governor Hochul suspended or modified various laws and regulations, including sections of the State Finance Law, Vehicle and Traffic Law, Highway Law, and Public Authorities Law, pursuant to Executive Law § 29-a. For example, the Executive Order “temporarily [suspended] or [modified]” State Finance Law § 97-g “to the extent necessary to purchase food, supplies, services, and equipment or furnish or provide centralized services to assist affected local governments, individuals, and other non-State entities in responding to and recovering from” the impacts of the severe winter storm.[11]

Limitations on the Governor's Emergency Powers

The Legislature has placed some limitations on the emergency powers granted to the Governor under the Executive Law. Importantly, the Governor may not use the powers in an open-ended manner and there are some restrictions on what the Governor may exercise the powers to accomplish.

Executive Orders declaring a state disaster emergency cannot be in effect for a period of greater than six months, but the Governor may extend the emergency in six-month increments.[12] Similarly, any suspension of specific provisions of a statute, local law, ordinance, orders, rules, or regulations can be made only for periods not exceeding 30 days.[13] The Governor is authorized to suspend the provisions for additional 30-day periods.

In addition, an Executive Order may suspend legal provisions only under certain circumstances. Any suspension, alteration or modification of the requirements of the statute, local law, ordinance, order, rule, or regulation must be a “minimum deviation” from the requirements of the law and must be consistent with the necessity of the action related to the emergency or disaster.[14] Further, the suspension of provisions must “safeguard the health and welfare of the public” and must be reasonably necessary for the disaster effort.[15] The Executive Orders also must specify the statute, local law, ordinance, rule, or regulation to be suspended, including the terms and conditions of the suspension.[16]

While the textual limitations found in Executive Law § 29-a have not been used to invalidate an Executive Order as of the time of this writing, several New York courts have found them to operate together to require that Executive Orders suspending laws be read narrowly to ensure that the Order is effecting a “minimum deviation” from the existing law.[17]

Finally, the Legislature has created provisions that allow it to override the Governor’s authority during such emergencies.[18] For example, the Legislature retains the power to terminate any specific Executive Order suspending laws at any time by concurrent resolution.[19] The Legislature also has the authority to override a Governor’s declaration of a disaster emergency, thereby terminating the emergency and related Executive Orders.[20] Lawmakers exercised this authority in April 2021, terminating three Executive Orders issued by former Governor Cuomo in response to the COVID-19 pandemic.[21]

Conclusion

New York Governors have long exercised emergency powers delegated to them by statute to enable the state to rapidly respond to public health emergencies and natural disasters. The use of Executive Orders in recent years has drawn significant public attention, as well as calls for changes in how New York State handles the powers of the Governor in times of emergency.[22] It is unknown whether lawmakers will take further action in the near future to clarify or limit the Governor’s emergency powers, but it is likely to remain a topic of discussion and debate. As of now, the Governor has broad powers to suspend or modify existing law by Executive Order during a declared disaster emergency, subject to being overridden by a concurrent resolution of Legislature.

The Government Law Center provides the nonpartisan legal research and analysis that state and local governments need to better serve their communities. Our role is to explain, not to advocate for a particular position or course of action.

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