(Albany, NY – July 30, 2020) – In our civil rights lawsuit challenging New York Governor Andrew Cuomo’s Executive Order 205, which requires all persons who travel to New York from certain “restricted” States to quarantine for 14 days upon arrival or face severe criminal and civil penalties, including a civil penalty of up to $10,000, we filed a brief blasting the Governor’s rank hypocrisy. Here is an excerpt from that brief:
Defendant Cuomo is the consummate politician, having mastered the art of speaking out of both sides of his mouth with equal conviction and sincerity. The governor’s hypocrisy is well-known to most of us residing in the Empire State, irrespective of political affiliation, but it has hit home fatally to those New Yorkers whose nursing home bound family members died as a direct result of the governor’s order requiring senior care facilities to re-admit COVID-19 infected residents transferred from New York hospitals.
So it was after his order led to thousands of nursing home fatalities forcing the governor to finally rescind the tragically fatal order, Defendant Cuomo responded to a reporter’s question about his personal responsibility for those deaths by famously proclaiming no one was to blame and no one was to be prosecuted—except of course the true culprits: “Who can we prosecute for those 139 deaths? Nobody. Mother Nature, God, where did this virus come from? People are going to die by this virus, that is the truth.” At the time, of course, New York infamously led the nation in infection and death rates from the virus that God and Mother Nature caused. Caroline Linton, Cuomo says no one should be prosecuted for coronavirus deaths in New York, including those in nursing homes, CBS News (May 18, 2020 3:04 PM), https://www.cbsnews.com/news/nursing-homes-deaths-coronavirus-prosecution-andrew-cuomo-new-york/.
Only one month later, with the apparent “flattening of the curve” in New York, the same governor just as famously sought to take full credit for the change and expressly denied divine involvement: “The number is down because we brought the number down. God did not do that, fate did not do that, destiny did not do that, a lot of pain and suffering did that.” Michael W. Chapman, Gov. Cuomo on Battling COVID-19: ‘We Brought the Number Down, God Did Not Do That’, CNSNews (April 16, 2020, 1:33 PM), https://www.cnsnews.com/blog/michael-w-chapman/gov-cuomo-battling-covid-19-we-brought-number-down-god-did-not-do.
Apparently, when confronted with his own policy failures, Defendant Cuomo is a true believer in divine providence. When he believes it is time to take a political victory lap, it is all about the governor’s policies.
Similarly, in this case we have on display a politician who literally threatened armed conflict if President Trump or any of New York’s sister states imposed a quarantine on travelers from New York. In March of this year when President Trump merely suggested the possibility of a two-week quarantine for travelers from New York due to the fact that the state was leading the nation in infection and death rates, Defendant Cuomo responded: “This would be a federal declaration of war on states.” He added for good measure: “It would be chaos and mayhem. If we start walling off areas all across the country it would just be totally bizarre, counterproductive, anti-American, anti-social.” Victoria Bekiempis and Richard Luscombe, Cuomo and Trump clash over talk of New York ‘quarantine’, The Guardian (Mar. 28, 2020 9:21 PM), https://www.theguardian.com/us-news/2020/mar/28/donald-trump-virginia-usns-comfort-travel.
Doubling down on his position that quarantines were “reactionary” and “illegal,” Defendant Cuomo publicly threatened to sue the governor of Rhode Island for doing back in March exactly what he is doing now. Tim O’Donnell, Cuomo threatens to sue Rhode Island if it doesn’t ease up on New Yorkers during coronavirus pandemic, Yahoo! News (March 29, 2020), https://news.yahoo.com/cuomo-threatens-sue-rhode-island-115524335.html.
And lest someone not understand the import of his words, or believe that the passage of time might have mellowed his stance, just last month Defendant Cuomo engaged in the following dialogue with a besotted journalist:
Nicolle Wallace: I’m old enough to remember when I believe it was Florida and maybe one other state that was warning against people coming from New York, warning them about us and asking to us quarantine when we traveled to their states. Have you given any thought to asking people from any of the states spiking, to take their temperatures or to quarantine or do anything when they come back into our state?
Governor Cuomo: Well, wouldn’t that be karma? Wouldn’t it be karma if I went out and said, “I’m thinking of quarantining. I won’t let those people from Florida come in. You know, they have a very high infection rate in Florida. I don’t want them coming here.” I think I would do it just one morning, just for the enjoyment of it. But no, I would not do that. . . .
Governor Cuomo: By the way, the President of the United States talked about quarantining New York and New Jersey. Don’t forget that.
Nicolle Wallace: I remember. I remember.
Governor Cuomo: He talked about having enforced quarantine. Not since the Civil War – they were talking about blocking access to New York. You want to see a second civil war, you would have if they did that.
Audio & Rush Transcript: Governor Cuomo is a Guest on MSNBC’s Deadline: White House with Nicolle Wallace, Governor Andrew M. Cuomo (June 12, 2020), https://www.governor.ny.gov/news/audio-rush-transcript-governor-cuomo-guest-msnbcs-deadline-white-house-nicolle-wallace-1 (grammatical errors in original).
Today, however, Defendant Cuomo embraces forced quarantines upon outsiders seeking to travel to New York. Notwithstanding Defendant Cuomo’s manifest duplicitousness, his arguments before this Court are legally wrong and no less “counterproductive, anti-American, anti-social,” “reactionary,” and “illegal.”
In effect, the governor and his health commissioner take two tacks in defense of their quarantine. The first is to hide behind Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905), and claim that once the state declares a public health crisis, constitutional analysis gives way to an oblique and ever-expanding standard of deference that appears to have no boundaries. In other words, per Defendants, it is the fiat of the governor, and not the Constitution of the United States, that becomes the supreme law of the land. To reach this conclusion, Defendants have ignored the plain language of Jacobson and how the Second Circuit and other circuits have treated Jacobson.
Defendants’ second tack in defense of the quarantine is to seek dismissal of this lawsuit by trying to deny the reality that the governor’s quarantine order is a direct imposition on the right to interstate travel falling mainly on residents of the designated states. As we will see below, the claim that the governor’s quarantine order does not forbid travel to New York or that it might incidentally affect New Yorkers as well, does not save the order from constitutional infirmity. Defendants’ arguments completely miss the mark.