Gerard Filitti
Human Rights Attorney

Cuomo’s constitutional violations require removal from office

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Governor Cuomo’s handling of the COVID-19 crisis has been rife with constitutional violations and concomitant abuse of power. At a minimum, the NY State Legislature needs to curtail the emergency powers he was granted to deal with the pandemic. More properly, the Legislature needs to act to remove Cuomo from power, not just for his obstruction of justice but also because of his blatant violation of the civil rights of millions of New Yorkers during the last year.

It has been widely reported that Governor Cuomo’s administration refused to disclose statistics about the state’s nursing home death toll from COVID-19. On March 25, 2020, Cuomo’s Health Department issued a directive that required nursing homes to admit medically stable coronavirus patients discharged from hospitals. It is widely understood that this directive fueled a significant rise in fatalities in nursing homes, with around 13,000 dead as a result.

Clearly Governor Cuomo would want to keep secret information that would make him look bad, especially when that information sheds light on how thousands of New Yorkers died as a consequence of his actions. Such revelations are politically damaging for a man described as having limitless ambition. But what is far worse is allowing that ambition to supersede legal obligation, resulting in obstruction of justice.

The stunning admission that Cuomo’s administration “froze” and refused to provide information requested by the Department of Justice out of concern that it “was going to be used against us” is the essence of an obstruction charge. Such a charge can be brought not just by federal authorities but also at the state level, where Cuomo refused to provide the same information to the Legislature.

Cuomo’s obstruction of justice cannot be viewed in isolation. It is part of a pattern of constitutional violations he has committed during the pandemic, highlighted in part by the United States Supreme Court in Roman Catholic Diocese of Brooklyn v. Cuomo, decided on November 25, 2020. In that case, the Court blocked enforcement of Cuomo’s limits on in-person religious worship in so-called red zones and orange zones. These limits violated the First Amendment right to free exercise of religion inasmuch as Cuomo’s orders singled out houses of worship for especially harsh treatment that was not imposed on stores, factories, and other activities.

Throughout the pandemic, Cuomo’s reading of the First Amendment has been selective at best. When the national consciousness was transfixed by social justice protests triggered by the killing of George Floyd, Cuomo appeared unbothered by large protests in New York, stating that he stood “behind the protestors and their message.” He supported the First Amendment right of the people peaceably to assemble, but prohibited the free exercise of religion. A governor cannot cherry-pick which provisions of the First Amendment apply to the citizens of his state, or play favorites when it comes to whose rights are more important.

It is time to recognize Governor Cuomo’s actions for what they are: civil rights violations. When the law is not applied fairly and evenly to everyone, civil rights violations occur. Take, for example, Cuomo’s treatment of the Jewish community during this crisis.

On October 14, 2020, Cuomo essentially blamed Jews for the pandemic, saying that “because of their religious practices…we’re seeing a spread.” As was abundantly clear from the spike in the number of COVID-19 cases across the world, this spread was not due to the religious practices of the Jewish community but rather was part of the well-anticipated “second wave” that Dr. Fauci and other experts had warned about since last Spring. Without any basis in science or fact, Cuomo directed animus and vitriol at a minority community already suffering not just the effects of pandemic, but the effects of anti-Semitism heightened by ignorance and hate.

Cuomo did not stop at targeting Jews with a classic anti-Semitic trope; he imposed heightened restrictions on houses of worship — the same restrictions that the Supreme Court struck down a month later. Ultimately, selective enforcement of the law, such as when Cuomo targeted the Jewish community for enforcement of heightened pandemic-related regulations, is a violation of the Equal Protection Clause of the Fourteenth Amendment. The Fourteenth Amendment is meant to protect against unequal, targeted enforcement of the law that fosters anti-Semitism and racism and degrades the egalitarian nature of our society.

Equality under the law is meaningless unless civil rights violations are properly addressed and Governor Cuomo is held accountable for his violations of the rights of millions of New Yorkers. The law does not tolerate selectively reading the Constitution, and nor does it tolerate selectively enforcing the law. Governor Cuomo cannot refuse to cooperate with a federal or state investigation into nursing home deaths merely because he is afraid it will cap his limitless ambition. He cannot pick and choose which laws to obey or to enforce, or who to enforce them against. More importantly, he cannot continue to govern in the face of this pattern of constitutional violations.

About the Author
Gerard Filitti is is a New York City-based human rights attorney. He serves as Senior Counsel at The Lawfare Project, a Jewish civil rights litigation fund and think tank. He previously worked as a litigator in private practice for over 15 years and has broad experience in commercial and complex litigation across a wide variety of practice areas, in both state and federal courts.
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