Executive Power in a Pandemic: How New York Courts Applied Constitutional Constraints to Emergency Orders

By Nicole Miraglia & Saniya Lopez | July 2, 2025

Crises such as the COVID-19 pandemic have compelled government officials to act swiftly and decisively in the name of public welfare. However, these emergency actions can provoke significant legal and constitutional scrutiny, especially regarding the scope of executive authority. In New York, both the governor and local executives, such as former mayor Bill de Blasio, invoked broad powers to issue executive orders that restricted businesses, gatherings, and individual liberties. While emergency conditions may justify temporary expansions of executive power, courts play a critical role in determining whether these actions remain within constitutional limits.

New York State addressed concerns related to the trade-off between making effective decisions during the crisis and protecting individual rights by analyzing how the judiciary upholds constitutional governance during public health emergencies. Many lawsuits alleged that executive orders issued during the COVID-19 pandemic, such as those mandating business closures, vaccination rules, and mask requirements, unconstitutionally usurped legislative power, violating the separation of powers doctrine. This article examines how New York courts navigated this balance, drawing on landmark precedents and recent pandemic-era decisions.

The New York State Court of Appeals established a framework for assessing separation of powers claims in the case of Boreali v. Axelrod (1987), which invalidated a set of public health regulations concerning indoor smoking, finding that the Public Health Council had crossed the line between rulemaking and policymaking without clear legislative authorization.¹ Boreali set out four factors that courts use to assess whether an agency has exceeded its authority by focusing on whether the agency made broad policy decisions rather than applying legislative standards, created a comprehensive regulatory scheme without legislative guidance, acted in an area where the legislature had failed to reach consensus, and lacked special technical expertise.² This framework continues to guide separation-of-powers jurisprudence in New York.

Recent cases have seen these four factors used as a standard, like in the court’s analysis in Borrello v. Hochul (2022), where plaintiffs argued against the executive’s supposed authority to impose isolation and quarantine rules without legislative input, citing a violation of the separation of powers doctrine.³ The court examined whether the executive’s rules involved policy decisions beyond technical public health measures. Applying the Boreali framework, it concluded that such significant policy choices require legislative authorization to uphold the separation of powers. The court’s usage of the Boreali framework was important because it demonstrated the judiciary’s role in checking executive overreach, specifically when the executive exercised wide emergency powers, such as issuing mandates during the COVID-19 pandemic, without receiving clear permission from the legislature.⁴

Another example that contrasts Borrello further showcases how courts assessed executive authority in the midst of the pandemic. In Our Wicked Lady LLC v. Cuomo (2021),⁵ a federal court addressing a constitutional challenge to indoor dining rejected multiple constitutional challenges to the measure, finding that “[T]he balance of the equities and the public interest weigh heavily in the [government’s] favor. The citizens of the City of New York face an unprecedented and ongoing threat to public safety.”⁶

In Our Wicked Lady LLC, the court emphasized the need for deference to the executive’s broad authority concerning public health when the general welfare is threatened. It was highlighted by the court that the measures taken to reduce the spread of COVID-19 were pivotal to protecting public health, which was ultimately more significant than the financial losses faced by businesses. This reflects a legal principle that, during times of emergency crisis, the government’s responsibility to protect public welfare often outweighs individual economic interests.

At the state level, one significant example of how courts upheld emergency measures despite constitutional concerns is Generoso v. Adams (affirmed in 2024).⁷ The background of the case saw local bakery owners file a CPLR Article 78 proceeding challenging the mayor’s “Key to NYC” executive order, which required proof of vaccination for entry into certain establishments.⁸ The petitioners argued the measure violated the separation of powers doctrine. However, the court held that COVID-19 continued to pose a threat to public health, which effectively substantiated the mayor’s assertion that there was a local state of emergency.⁹ It is a clear case of how states of emergency can change what executives are allowed to do according to their vested powers. The court upheld the vaccination mandate, reasoning that some degree of overlap among the legislative, executive, and judicial branches is constitutionally permissible.¹⁰ It emphasized that a violation of the separation of powers doctrine occurs only when the executive directly conflicts with or encroaches upon legislative authority.¹¹ Thus, since de Blasio acted under powers granted by Executive Law § 24, the court determined that the “Key to NYC” order was a lawful exercise of emergency authority.

This tension between public safety and constitutional limits becomes especially clear at the height of the pandemic when a significant example of judicial doubt toward expansive executive authority surfaced in a significant way in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), a case involving religious challenges to New York’s executive orders limiting attendance at religious services during the COVID-19 pandemic.¹² Supreme Court Justice Gorsuch warned that executive orders should not be given unlimited deference during public health crises. Justice Gorsuch observed that “squaring the Governor’s edicts with our traditional First Amendment rules [was] no easy task.”¹³ Given the disparity in the gathering restrictions, he quipped that, “according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine.”¹⁴ Ultimately, the Supreme Court ruled that the restrictions on religious gatherings were unconstitutional, with Justice Gorsuch writing for the majority. His caution mirrors the concern that the government’s power should not encroach upon individual liberties without clear and compelling justification, even during a pandemic.

The conversation of executive power and judicial deference during the COVID-19 pandemic showcases the tension between emergency action and constitutional safeguards. As shown, courts have had to balance the urgency of public health measures with the principles of the separation of powers and individual rights. The judiciary cannot abdicate its role in scrutinizing executive orders, particularly those enacted under emergency powers. Unbridled deference to executive power could lead to the concentration of alarming power in one individual, a circumstance that both the framers of our state and federal constitutions sought to prevent.¹⁵ For the governmental system to work correctly, each branch of government must be willing to perform its function fully; as such, the judiciary has constantly exercised its unique legal expertise to ensure that even emergency measures remain constitutionally sound.

While the necessities of a particular health emergency call for greater deference to our political leaders, the many cases involving New York during the pandemic have shown that constitutional standards are upheld at all times. Emergency powers should not be used as a justification to bypass constitutional safeguards, yet there is a clear necessity for their use and power when a crisis is present, so long as they are held to rigorous legal scrutiny when necessary. This scrutiny ensures that any temporary expansion of executive power during a crisis remains within constitutional limits and does not violate fundamental rights. It serves as a check to prevent misuse of power, ensuring that emergency powers are used only for their intended purpose. Without this level of oversight, there is a risk of undermining the principles that protect individual freedoms and maintain a balanced distribution of governmental power. Ultimately, the New York courts’ approach provides a valuable model for how legal systems can uphold constitutional integrity without paralyzing public health responses.

^{1 Boreali v. Axelrod, 71 N.Y.2d 1, 517 N.E.2d 1350 (1987).}
²^Id.
³^{Borrello v. Hochul}^{, 2022 N.Y. Slip Op. 22418 (Sup. Ct. Erie Cnty. 2022),}^{https://www.nycourts.gov/reporter/3dseries/2022/2022_22418.htm}^.
^{4 Ariel Gougeon,}^{Exploring the Emergency Powers of the Governor in New York State}^{, Aʟʙ. L. Sᴄʜ. Gᴏᴠ’t L. Cᴇɴᴛᴇʀ (Apr. 3, 2023),}^{https://www.albanylaw.edu/government-law-center/exploring-the-emergency-powers-the-governor-new-york-state}^.
⁵^{Our Wicked Lady LLC v. Cuomo}^{, No. 1:21-cv-00165 (S.D.N.Y. Mar. 9, 2021),}^{https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2021cv00165/551841/41/}^.
⁶^Id.
⁷^{Matter of Generoso v. Adams}^{, 2024 N.Y. Slip Op. 04769 (App. Div. 2d Dep’t Oct. 2, 2024).}
⁸ ^Id.
⁹^Id.
¹⁰^{Generoso v. Adams}^{, 2022 N.Y. Slip Op. 22036 (Sup. Ct. Kings Cnty. Feb. 10, 2022),}^{https://www.nycourts.gov/reporter/3dseries/2022/2022_22036.htm}^.
¹¹^Id.
¹²^{Roman Catholic Diocese of Brooklyn v. Cuomo}^{, 592 U.S. ___ (2020) (No. 20A87),}^{https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf}^.
¹³^Id.
¹⁴^Id.
^{15 James Madison,}^{The Federalist No. 47}^{, at 301 (Clinton Rossiter ed., Signet Classics 2003),}^{https://avalon.law.yale.edu/18th_century/fed47.asp}^.