Senator George Borrello is among plaintiffs challenging the Department of Health’s authority to enact controversial policy through rule-making process
ALBANY, NY – Senator George Borrello is part of a lawsuit filed in State Supreme Court today challenging the constitutionality of a New York State Department of Health regulation, on the grounds it violates the separation of powers.
The regulation at issue is 10 NYCRR 2.13, which establishes isolation and quarantine procedures for those who are suspected of having a communicable disease. The proposed regulation was adopted as an emergency regulation on February 22, 2022 and is due to expire on April 22, 2022. Today, the Health Department’s Health Planning Council is set to renew the emergency rule.
However, the regulation was also published in the New York State Register issued December 15, 2021, for adoption through the agency rule-making process. The public comment period on the rule officially ended on February 13. Permanent adoption is still pending.
Other petitioners in the lawsuit include Assemblymembers Michael Lawler and Chris Tague as well as the organization, Uniting NYS.
“From the start of the pandemic I was deeply concerned that the expansive ‘emergency’ powers that were given to the Executive Branch would establish a permanent precedent. Unfortunately, that is precisely what we are seeing here in New York State,” said Senator George Borrello. “Regulations that were enacted and authorized on an emergency basis only are being quietly enacted on an ‘emergency’ basis and proposed for permanent adoption through the rule-making process, entirely bypassing the Legislature and relatively shielded from public view. It’s an unconstitutional overreach that violates the required separation of powers between the executive and legislative branches of government. It must be challenged.”
Senator Borrello noted that the proposed rule at the heart of the lawsuit raises particular concerns as it would allow the Health Department to coordinate with a local health authority to mandate isolation and quarantine for individuals exposed to communicable diseases, even in locations that aren’t their homes.
“The notion that the government could require individuals to isolate in temporary housing or a detention facility, with no due process and no evidence of being a proven threat, is troubling and reminiscent of how some authoritarian regimes responded to the COVID-19 pandemic and throughout history,” said Senator Borrello. “That is a very concerning scenario and not something that should become policy through an agency rule-making process.”
Senator Borrello also noted that these rules closely resemble the provisions in the controversial Assembly bill A.416, which was proposed prior to the pandemic and never advanced in the Assembly, nor did it ever have companion legislation in the state senate.
“The fact that Assembly Bill 416 never received the support it needed to move forward is clear evidence that the legislature has no intent to allow such an unconstitutional edict to become law.”
“This lawsuit is so important to the preservation of separation of powers in New York State,” said Bobbie Anne Flower Cox, Esq. of Cox Lawyers, PLLC, the attorney representing the petitioners. “With 10 NYCRR §2.13 Isolation and Quarantine Procedures, the Department of Health has issued a law cloaked as a "regulation". If this illegal regulation is permitted to stand, then we will have a break-down of the checks and balances that make our government function as a representative form of government of the people, by the people, for the people. The Executive Branch of government is not supposed to make law. That is a power reserved for the Legislature alone. This regulation is a clear example of the Executive Branch usurping the power of the Legislative Branch. When this happens, the Legislators are prohibited from representing the people, and the voice of the people is extinguished. We cannot let this regulation stand.”
"As a co-equal branch of government, the legislature reserves its right to pass, or not pass, legislation. The Governor then has the right to sign or veto such legislation. In this case, not only did the vast majority of members reject this proposal, the bill sponsor rescinded it,” said Assemblymember Michael Lawler. "What Governor Hochul fails to understand is that she does not have unilateral control of the state government and that her ‘emergency powers’ were put to an end weeks ago. The notion that the Executive Branch and Department of Health worked together to create a regulation that would allow for indeterminate ‘quarantining’ and ‘isolation’ at a location other than one’s home sounds more like a Stalinist gulag than a measure to protect public health. It is unacceptable and must be stopped. If Governor Hochul refuses to reverse course, the courts must intervene and return the legislative authority to where it belongs, in the legislature."
“It is truly frightening that a policy as consequential as this is racing through the rulemaking process,” said Assemblymember Chris Tague. “This policy’s aim to forcibly isolate law-abiding citizens is reminiscent of actions taken by some of the ugliest tyrannical regimes history has ever known. It has no place standing as law here in New York, let alone anywhere in the United States. Policies as dangerous as this should be debated and scrutinized in a public setting by elected representatives, not quietly slinked through regulatory approvals.”
The lawsuit can be viewed at:
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