I know what you're thinking, it's probably not as bad as it sounds.
You're right, it isn't.
It's worse.
New York Assemblyman (yes, "man," do better New York Assembly) N. Nick Perry introduced the language for the 2020-2021 session with the unintentionally chilling title:
A00416: Relates to the removal of cases, contacts and carriers of communicable diseases who are potentially dangerous to the public health
If you are wondering what "cases" are, those would be you. Not people, not human beings, "cases."
It's the kind of language intended to assuage any moral qualms that might exist among those within the bureaucracy who are still clinging to the tattered remnants of what was once their soul.
And phrasing it as "the removal of cases," sounds kind of benign. Much better than "the physically throwing face down on the ground of cases."
Before you accuse of me of laying it on too thick, read on.
Section 1. The public health law is amended by adding a new section 2 2120-a to read as follows:
§ 2120-a. Removal and detention of cases, contacts and carriers who are or may be a danger to public health.
"Removal and detention."
Remember when removal and detention of people was an "attack on the rights and well-being of [illegal immigrants'] American family members?"
I eagerly await the condemnation of the attack on the rights and well-being of the American family members of, you know, Americans.
And if you're wondering what makes this materially different from being arrested, nothing makes this materially different from being arrested.
"Contacts and carriers."
You can be arrested for being a carrier (of a communicable disease, that will be coming up in a moment) or if you are a "contact."
Remember "contact tracing?" Under this bill, you can be arrested for being in contact with a carrier.
That should boost those compliance numbers!
The provisions of this section shall be utilized in the event that the governor declares a state of health emergency due to an epidemic of any communicable disease.
The power to declare such an emergency, of any communicable disease, any, resides with the governor.
Keep in mind, at any given moment, there are at least 80 communicable diseases in circulation.
Ah, Cuomo seems like a trustworthy guy! Besides, most people when granted power absolutely are never corrupted by it.
Upon determining by clear and convincing evidence that the health of others is or may be endangered by a case, contact or carrier, or suspected case, contact or carrier of a contagious disease that,...
"Suspected."
Even though the "clear and convincing" standard is typically pretty high, just one below "beyond a reasonable doubt," it's not nearly as a high a standard when applied to whether you suspect something. What does that even mean in a legal context?
In any case, who gets to make that determination, at least at the outset?
...in the opinion of the governor, after consultation with the commissioner, may pose an imminent and significant threat to the public health...
That would be the governor, and the guy the governor appointed.
Check and balances, my friends, checks and balances.
...in severe morbidity or high mortality, the governor or his or her delegee, including, but not limited to the commissioner or the heads of local health departments, may order the removal and/or detention of such a person or of a group of such persons by issuing a single order, identifying such persons either by name or by a reasonably specific description of the individuals or group being detained.
"All units in the vicinity, officer needs help, sneezes detected, 1-Adam-12 handle Covid Code 19."
Such person or group of persons shall be detained in a medical facility or other appropriate facility or premises designated by the governor or his or her delegee and complying with subdivision five of this section.
That's hardly Soviet-sounding at all. Very little authoritarianism in the language, so just stop thinking that.
Interesting use of the term "group" here. Individuals are arrested. Groups are "rounded up."
Again, not authoritarian.
A person or group removed or detained by order of the governor or his or her delegee pursuant to subdivision two of this section shall be detained for such period and in such manner as the department may direct in accordance with this section.
Yep, you can tell the care and attention that has been paid here to civil liberties and due process.
It's in the penumbra!
A confirmed case or a carrier who is detained pursuant to subdivision two of this section shall not continue to be detained after the department determines that such person is no longer contagious.
That's a relief! Sort of.
When a person or group is ordered to be detained pursuant to subdivision two of this section for a period not exceeding three business days, such person or member of such group shall, upon request, be afforded an opportunity to be heard. If a person or group detained pursuant to subdivision two of this section needs to be detained beyond three business days, they shall be provided with an additional commissioner's order pursuant to subdivisions two and eight of this section.
You can "be heard," and if you need to be detained beyond 3 days, they need to issue an additional order. That's not as comforting as they may have intended.
There follows quite a bit about this regarding having redress with the courts, but it is all very administrative sounding and I can't imagine most judges ordering the release of someone if the health commissioner says it would be a danger. Think about the adulation and knee-jerk compliance afforded Anthony Fauci despite his serial lying and obfuscation.
Still, better than not having it. (We'll get to that in a moment.)
In addition to the removal or detention orders referred to in subdivision two of this section, and without affecting or limiting any other authority that the commissioner may otherwise have, the governor or his or her delegee may, in his or her discretion, issue and seek enforcement of any other orders that he or she determines are necessary or appropriate to prevent dissemination or transmission of contagious diseases or other illnesses that may pose a threat to the public health including, but not limited to,..
This grants extraordinary powers to the state, and particularly to the governor and his appointees. I'll go over these below, but that "not limited to" language, while typically considered to be boilerplate, strikes me as exceptionally expansive in this case.
...orders requiring any person or persons who are not in the custody of the department to be excluded; to remain isolated quarantined at home or at a premises of such person's choice that is acceptable to the department and under such conditions and for such period as will prevent transmission of the contagious disease or other illness;
House arrest.
...to require the testing or medical examination of persons who may have been exposed to or infected by a contagious disease or who may have been exposed to or contaminated with dangerous amounts of radioactive materials or toxic chemicals;
Mandatory medical examination, undefined, and unlimited in scope.
...to require an individual who has been exposed to or infected by a contagious disease to complete an appropriate, prescribed course of treatment, preventive medication or vaccination, including directly observed therapy to treat the diseases and follow infection control provisions for the disease;
Require treatment, medication, or vaccination.
My body my life?
Such person or persons shall, upon request, be afforded an opportunity to be heard, but the provisions of subdivisions two through eleven of this section shall not otherwise apply.
Subdivisions two through eleven outline the specific due process considerations I mentioned above. That's a curious, and deliberate removal of due process rights that apply to detention but not forced medical procedures and include timelines and the like.
Did they just get tired of drafting, or is there something more sinister here?
At least they mentioned the right to be heard, but you pretty much have that right regardless, or should.
To sum up, this language grants the governor extraordinary power to detain people suspected of being contagious along with people with whom they are suspected of having had contact, force them to undergo testing, medical procedures, and vaccination, all with the bare minimum opportunity to seek redress from the courts.
It's still just a proposal, but it really should not have gotten this far.
(Special thanks to @sarutaru06 and @tacos20 for alerting me to this.)
