Since the start of the pandemic, governors around the country have often struggled to appear to be doing something to stem COVID-19, regardless of whether that something was well advised. The latest example comes from New York’s new Gov. Kathy Hochul, who issued a declaration of disaster emergency that gives her and her administration broad powers.
Is this an instance of prudent precaution or just more government overreach? The answer is important since New York’s COVID-19 interventions have often been counterproductive. The last emergency declaration, in effect between March 7, 2020 and June 24, 2021, enabled then-Gov. Andrew Cuomo to impose hundreds of executive orders that micromanaged small businesses and health care and prohibited local governments from making their own rules.
New York’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.”
The declaration allows the governor to suspend any state statute, regulation or rule if compliance with it would hinder disaster response. It also gives the state health commissioner authority to activate the Surge and Flex Health Care Coordination System, which organizes the pandemic response of all hospitals statewide, including limiting elective procedures and reassigning beds to different uses.
Many commentators have attributed the new declaration to fears of the Omicron viral variant that emerged in southern Africa. The new variant contains dozens of worrisome mutations, many on the spike protein that determines infectiousness. The governor tweeted that Omicron has not been detected in New York (or anywhere else in America) but “is coming.”
The governor may be right. But since no one knows if Omicron will be more transmissible or virulent than earlier variants or if it will evade vaccine and natural immunity, declaring an emergency based on its existence seems premature.
In fact, the governor’s executive order does not mention Omicron. It finds “that a disaster has occurred in New York State, for which the affected local governments are unable to respond adequately” (emphasis added).
What is the evidence for this?
Hochul claims that COVID-19 transmission rates are the highest seen since April 2020. Actually, new cases per 100,000 were twice as high on Jan. 12, 2021, as now. New York’s seven-day moving average of cases per 100,000 bottomed out in late June, began a slow rise at the end of July, plateaued in September and resumed rising between late October and the present.
New York City case rates remain substantially below those of the rest of the state, most notably Western New York, and other large states. Rates are near average in the state’s other populous regions, such as Long Island and mid-Hudson Valley. The 7-day percentage of tests positive—a gauge of high transmission— has been steady in New York since mid-August and has only been high in limited parts of the state.
Hochul also cited rising rates of COVID-19 hospital admissions over the past month. New York’s seven-day moving average of admissions per 100,000 population has been rising but is only slightly higher than in September. New COVID-19 deaths per 100,000 are one-fifth the last peak, in January, and one-tenth the spring 2020 peak.
Does a surge largely confined to New York’s western and upstate regions justify a statewide declaration that gives the government broad 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 infections, leading to thousands of unnecessary deaths. The department and Cuomo attempted to cover up the blunder by undercounting deaths.
When vaccines first became available in early 2021, the state prioritized distribution of the limited supply based on “social equity” and interest-group lobbying, resulting in lower vaccination rates for the most vulnerable, the elderly, than in other states.
Earlier in the pandemic, hospitals voluntarily limited their elective procedures and redirected assets to increase capacity before government direction to do so. They are capable of doing so now. Western New York hospitals had started postponing procedures before the governor’s order.
No one yet knows if the Omicron variant will be widespread and dangerous or if Gov. Hochul will prove more competent and less autocratic than her predecessor. Meanwhile, we should let local hospitals and governments, who are best positioned to understand their situations and the means necessary to mitigate them, act without heavy-handed state intervention.
Joel Zinberg, MD, 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.
