Governors across the nation have struggled since the beginning of the COVID-19 Pandemic to make it seem like they are doing anything to stop the spread of the disease. The latest example comes from New York’s new Gov. Kathy Hochul issued a disaster declaration that grants her and her agency broad power.
Are these examples of prudent precaution or government overreach? The answer is important since New York’s COVID-19 interventions have often been counterproductive. Between March 7, 2020, and June 24, 2021 the last emergency declaration was in place, allowing then-Gov. Andrew Cuomo imposed hundreds of executive directives that allowed small business owners to manage their healthcare, and prevented local governments from creating their own rules.
New York State’s Executive Law authorizes the governor to issue a state declaration of disaster emergency if she “finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately.”
In an emergency declaration, the governor has the power to suspend any state regulation or statute if it would hamper the response to the catastrophe. The declaration also gives the state health commissioner authority to activate the state’s Surge and Flex Health Care Coordination System, which organizes the responses of all the hospitals statewide in response to a pandemic, including limiting elective procedures and reassigning beds to different uses.
Commentators believe the Omicron virus variant that emerged in south Africa is the reason for the latest declaration. There are many worrying mutations in the new Omicron variant, including spike proteins that can lead to infectiousness. The governor tweeted that Omicron has not been detected in New York (or anywhere else in the U.S. for that matter) but “is coming.”
This governor might be correct. The governor may have a point. However, no one can predict if Omicron is more transmittable than other variants or more virulent. Also, there are still questions about whether natural immunity and vaccines will work against it. Declaring an emergency just because Omicron exists seems premature. In fact, the governor’s executive order does not mention Omicron. It finds “that a disaster It has happened in New York State, for which the affected local governments are unable to respond adequately.” (emphasis added)
Is there any evidence to support this claim?
Governor claims the current COVID-19 transmission rate is at its highest level since April 2020. On January 12, 2021, the number of new cases per 100,000 was twice as high as it is now. New York’s seven-day moving mean of cases per 100,000 inhabitants reached its peak in the late summer 2021. The number began to decline in the latter part of July, but then climbed slowly until September.
New York City’s case rates are still low, and significantly lower than those in other states and New York. While positive cases have been higher in certain parts of New York state, such as Western New York and the Hudson Valley, it was lower in other areas, including Long Island and the mid-Hudson Valley, or below the New York City average.
In addition, the governor cited an increase in COVID-19 hospitalizations during the month. Although the seven-day average COVID-19 admissions for New York’s 100,000 residents has increased over the last month, it is still only slightly lower than September 2021. The number of COVID-19 new deaths per 100,000 is one-fifth higher than the January 2021 peak and one-tenth lower than the spring 2020 peak.
Do you think a large-scale surge of activity in western and upstate areas justifies a declaration that grants the government wide emergency powers?
Remember, this is the same health department that invoked emergency powers in March 2020, to mandate that nursing homes — where the vulnerable elderly and sick are concentrated — accept discharged COVID-19 patients without testing for active COVID-19 infections, leading to thousands of unnecessary deaths. Cuomo and the department tried to hide the error by downcounting reported deaths. When vaccines first became available in early 2021, distribution of the limited supply was prioritized based on “social equity” and interest-group lobbying resulting in lower vaccination rates for the most vulnerable, the elderly, than in other states.
Evidence from the earlier pandemic shows that hospitals had voluntarily reduced elective procedures and diverted assets in order to grow their capacity, despite government directives. They can do so right now. Western New York hospitals already started postponing procedures before the governor’s order.
Nobody knows yet if Omicron’s variant of Omicron is dangerous and widespread, or if it will ever be able to govern. Hochul will be more capable and less dictatorial than her predecessor. We should allow local governments and hospitals to determine their needs and provide the necessary assistance.
Joel Zinberg, M.D., is a senior fellow at the Competitive Enterprise Institute, an associate clinical professor of surgery at the Icahn School of Medicine at Mount Sinai in Manhattan and the director of Paragon Health Institute’s Public Health and American Well-being Initiative.