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I live in Westchester, the East Coast ground zero for the coronavirus pandemic. As of yesterday morning, I am living under four distinct states of emergency: one authorized by Westchester County Executive George Latimer, one authorized by New York City Mayor Bill de Blasio (like many Westchester residents, my wife and I have jobs in New York City), one authorized by New York Governor Andrew Cuomo, and one authorized by President Donald Trump.
I’m not living under “martial law.” I’m not worried about the military stomping on my constitutional rights. Instead, I’m living under so many states of emergency that I don’t even know which civilian authority is running the show.
The four authority figures in my life cannot even coordinate their press conferences, much less their responses. On Sunday, my wife listened to the Trump press conference while I tuned in to Cuomo, who was on at the same time; I also kept the radio on in case de Blasio decided to say anything while the other two were speaking. I’ve got Latimer telling me to support local businesses, de Blasio telling me not to go to the bar, Cuomo telling me he’s going to make it so bars can deliver drinks to my house (I think), and Trump telling me there’s nothing to worry about—but, if there is, it’s not his “responsibility.”
What’s wild is that this confusion is, more or less, the direct consequence of our system of government. States of emergency give executive officers all sorts of powers, yet those officials are still limited by the statutes authorizing the state of emergency and the constitutions of their states and the federal government. Each official has different, overlapping yet not redundant powers, depending on the office they hold and the way the emergency statutes are written. Figuring out who’s in charge is almost impossible. If you don’t have a law degree, good luck figuring out if you’re even allowed to go to a bar to grab a drink.
Luckily, I have one. And I put it to use to figure out if I could legally go get a drink, because that’s the kind of guy I am. I found it a more comforting way to think through our layers of disaster response, instead of Googling “number of ventilators in New York State.”
Starting at the top: President Trump declared a national emergency on Friday. He did it under the Stafford Disaster Relief and Emergency Assistance Act. This is in contrast to the fake national emergency he declared last year in order to steal money to build his wall. The wall emergency was declared under the National Emergencies Act. It’s the NEA that gives the president ridiculous executive powers like stopping the Internet or turning the military into his personal enforcement agency. The Stafford Act is weaker, and much more commonly used. It basically just empowers the federal government, through FEMA, to spend a bunch of money in order to cope with natural disasters and activate various emergency hospital protocols.
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Authorizing FEMA disaster relief is good, but it doesn’t tell me if I’m allowed to go to a bar. So we go to the next step down: On March 7, Governor Andrew Cuomo declared a state of emergency for the State of New York. Cuomo used a bit of New York State Law (Section 29 of Article 2-B of Executive Law) that allows him to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations.”
That section does a lot. Cuomo announced that he was closing lots of private businesses where lots of people gather, like gyms and casinos. He’s instituting occupancy limits on public gatherings. Under the statute, he could, but has not yet, order things like a mandatory curfew and restrict the travel of nonessential workers.
Governor Cuomo has the power to set the minimum level of restrictions and precautions that must be taken in response to the coronavirus. He is “in charge” as much as anybody is. But local officials can go above and beyond the prohibitions put in place. If the governor is the guy walking around with the big stick, local officials are the stick.
We’re seeing that now. Mayor de Blasio and County Executive Latimer have both issued their own states of emergencies. Their power comes from Section 24 of New York Executive Law. It’s Section 24 that tells me whether I can grab a drink: The statute offers some “examples” of local executive authority. It provides for:
c. the regulation and closing of places of amusement and assembly;
d. the suspension or limitation of the sale, dispensing, use or transportation of alcoholic beverages, firearms, explosives, and flammable materials and liquids;
e. the prohibition and control of the presence of persons on public streets and places;
Mayor de Blasio has ordered bars to close by Tuesday night. County Executive Latimer has not. I wish we weren’t practicing social distancing, because this would be the first time I could make my city friends come have a bender near my house.
Of course, that’s just my situation. Somebody living in Jersey is operating under a different set of protocols. My relatives in Indiana don’t have to do any of the things Cuomo is ordering me to do—yet. Once again, that’s because we have no national response to the coronavirus; all we have is a bunch of independent authorities making things up as they go along.
Part of the problem is with our federalist Constitution and system of government. The basic unit of political authority in this country resides in 50 state governments, which then delegate that power to their localities. When it comes to nuts-and-bolts issues like “Can we go out drinking?” the power is in the hands of state and local officials, not the federal government.
This distribution of power made a lot of sense back when it took six months to travel from New York to California and you had to be willing to cannibalize your companions if the trip got rough. Now that we’re facing a modern global pandemic, our system frustrates a unified public health response.
Of course, the Trump era is not the time anybody wants to make an argument against federalism in favor of stronger control from the central government. I’m sure I’m not alone in feeling thankful that my governor is in charge, as opposed to the president of the United States. I have a governor who understands how “science” works and can speak in complete sentences. That makes him much more qualified to protect the safety of my family than Trump.
Still, for all the flaws in our system, it is our lack of federal leadership, more than the lack of federal power, that is frustrating the attempt to respond effectively to the threat posed by the coronavirus. In a time like this, we don’t need a commander in chief, we need an informer in chief. We need everybody to be working off the same information—not to mention the same basic goals, like saving people, not corporations—so that our state and local institutions can make decisions grounded in the very best data and expertise available. And we need the kind of resources and labor power that only the federal government can provide. One of the many reasons that testing needs to be made available on a massive, efficient scale (and why it should have been made available weeks ago) is that you can’t expect governors and mayors to make smart decisions on whether they should risk tanking their local economies unless they have accurate information about the extent of the threat and the best ways to mitigate it.
Trump has done just the opposite. Instead of providing the most accurate data, he spreads misinformation. Instead of giving governors the tools they need to fight the spread of the virus, and care for those who have contracted it, Trump is concerned that the stock market is making him look bad. He’s so afraid of being blamed that he refuses to lead. Instead of a national leader, we’ve got a guy who says, “I take no responsibility at all.” My state and local officials are now scrambling to fill the leadership gap left by the president.
Luckily, I don’t need the president to tell me to avoid my local bar for the time being. I stocked up on alcohol three weeks ago, preparing for this time, back when Donald Trump was calling the coronavirus a “hoax.”
