WILLIAMSVILLE, N.Y. — This week, U.S. District Court Judge William Skretny dismissed a lawsuit brought by nine Western New York businesses challenging Governor Cuomo’s authority to issue executive orders that restrict their activities.

Attorney Steve Cohen represents the businesses that include three bars, two strip clubs, a bowling alley, a pool hall, a martial arts studio, and a DJ service.

"Essentially what the judge is saying is in the presence of an emergency the constitution goes out the window," Cohen said.

The suit made a number of different arguments that the governor and the state legislature have violated both state and federal constitutions as the governor has issued dozens of executive orders during the COVID-19 pandemic. One of the primary arguments, however, is that the legislature has delegated the authority to make law to Cuomo, violating the separation of powers.

"We are not taking a position as to whether the measures that have been put into place, the safety protocols, are good or bad or too strict," Cohen said.

Skretny primarily referenced the 1905 Jacobson vs. Massachusetts case as precedent for the dismissal and not granting Cohen's clients an injunction. That ruling established the framework for emergency public health measures during the small pox epidemic.

Cohen said both medical science and established law have changed dramatically since.

"It was 15 years before women even had the right to vote," he said. "That is the case that this court is basing its decision. That the governor is absolutely entitled to throw out the Constitution and trample on it and do whatever he thinks is in the people's best interest."

The judge did grant Cohen two weeks to amend the suit to address the Jacobson case. Cohen said he will do that, but is also preparing to bring the lawsuit to the 2nd Circuit Court of Appeals.

"It's not often that there's a motion in a U.S. district court where the decision may mean a milestone in the practical relevance of the U.S. Constitution in our society from this point forward. But there should be no doubt that this is such a case," he said.

The attorney believes this is the most important case he's handled during his career. He says he's prepared to bring it all the way to the U.S. Supreme Court if needed.

"We are confident that if we make our application, it will be reviewed quickly, since it will be presented as an emergency application. But I would be surprised if the U.S. Supreme Court doesn't hear one of these cases, because the very fabric of the United States Constitution is at stake here," Cohen said.

He said all nine businesses are currently in business in at least some capacity, but the orders have affected hundreds of clients of HoganWillig.