Back during the waning days of the COVID pandemic last year, New York State was among the worst in terms of trying to declare emergency orders and lockdowns. One of the rules put in place under Governor Kathy Hochul during that period allowed state Health Department officials to order individuals to remain locked down in quarantine to curb the spread of an infectious disease such as COVID. People who found themselves on the receiving end of that hobnail boot wound up working with some GOP lawmakers and challenged the rule in court. Last year, a state supreme court justice found the rule to be unconstitutional because it violated the separation of powers between the executive and legislative branches. I’m sure we can all be glad of that. But New Yorkers may have celebrated too soon because a unanimous panel of the Fourth Judicial Department appellate court overturned that finding, bringing the rule back to life. (Times Union)
A rule that allows the state Health Department to lawfully order someone to involuntarily isolate or quarantine to control a highly contagious disease, such as COVID-19, has been reinstated in a unanimous decision by a mid-level appellate court.
The ruling by the Fourth Judicial Department, which has jurisdiction in 22 counties in central and western New York, overturns a decision last year by a state Supreme Court justice in Cattaraugus County who found the rule violates the constitutional requirement for a separation of powers between the legislative and executive branches when promulgating rules as severe as involuntary isolation.
The plaintiffs will now appeal the ruling to the state Court of Appeals, which is the highest court in the state. Whether it would make it beyond there to the Supreme Court (if required) is unclear. At the moment, we thankfully don’t have any serious contagious diseases running around at pandemic levels, so there should be no circumstances where New York could attempt to issue such orders again. But as we should all know by now, it’s only a matter of time, so this situation needs to be sorted out.
The rule was worded in such a way that the state clearly wanted to keep that weapon in its arsenal for any future pandemics. And if New York manages to get away with this, you can bet that many other blue state governors will have light bulbs glowing above their heads. Just imagine the autocratic thrill of being able to send out a health official to the home of someone sick who you perceive as “causing trouble” and order them to remain in their home under pain of arrest. There are many who probably wouldn’t be able to resist the temptation.
One central area of concern in this lawsuit is the basis that the plaintiffs used to construct it. They aren’t even arguing that the state shouldn’t be able to restrict people’s movement in that fashion. Instead, they crafted a procedural argument claiming that the executive branch thwarted the power of the legislature by putting such a rule in place without the people’s representatives voting on the measure. The first court to hear the case agreed that was what had happened, but the second court determined that it not only should have been allowable, but the plaintiffs lacked legislative standing to bring the case in the first place.
This all seems too technical and bogged down in legalese to me. Whether this lawsuit eventually succeeds or fails, the courts should be asked to weigh in on the more fundamental question. Does the executive branch have the authority to issue such an order to one specific individual who has not been charged with any crime? For that matter, does the legislature even have that power?
The right to move about freely (without violating the property rights of others or entering restricted military/government space) is among the most fundamental of rights. Mind your own business, let others mind theirs, and get on with your life. At the beginning of the pandemic we all seemed to just shrug our shoulders and accept that the government could shut everything down and tell people to stay home, which was probably a mistake on our part. But there were always exceptions for when you needed to go shopping, seek medical care, or even exercise. And it was a general order applying to everyone equally, at least in theory. What New York is talking about is specific, singular orders locking down individuals. The government shouldn’t be able to dictate that sort of thing on a whim even under the pretense of preventing the spread of a contagion.