Hermes Fernandez, chair of the Health Law Section and attorney at Bond, Schoeneck & King, appeared on The Capitol Pressroom to explain the new and old powers the Governor has in a public health emergency. Included in a coronavirus funding bill were expanded powers for the Governor to respond to the spread of the virus.
“The Governor had some fairly significant authorities to begin with,” said Fernandez. “The biggest change I see – the new law – is not just the authority to suspend laws but also now affirmatively to make very short-term new laws.” These laws can last for 30 days.
There were two real practical effects of the Governor declaring a state of emergency on March 7, Fernandez said. The first effect was that the Governor was “prepared to act quickly.” Second, the Governor waived procurement rules for purchasing and waived licensing rules so the state can begin testing as expeditiously as possible. Tests that were previously done only by nurses can now be done by others.
Another significant change was the Governor waiving the petitioning requirement needed in an election. Candidates will only need to collect 30 percent of the statutory threshold. “The Governor, simply by his pen changing the rule of an election is quite extraordinary in a society in which there is a separation of powers and democratic principles. The public interest there is fairly clear,” said Fernandez. “Everything that we are being told by the public health authorities both at the state and federal level is what we have to meet the threat of this disease is our ability to separate from each other, which is hard to do. The petitioning process requires face to face interaction.”
Fernandez also discussed the legal challenges, such as the slowdown of the courts. “We are seeing shutdowns of trials. There are going to be issues especially on the civil side, where most civil cases are regarded as non-essential. To the litigants, those issues maybe are very significant.”
Listen to the full interview here.