The governor - from figurehead to Prime Minister: a historical study of the New York state constitution and the shift of basic power to the Chief Executive.

• Author: Buckley, John T.

1. INTRODUCTION

   This article traces the evolution of the New York State government from a legislatively dominated constitutional structure to a more executive dominated one, a movement that has been vindicated by the courts. The focus of this study of constitutional transformation shall be the budgetary process, arguably the most important function of state government, since it entails competing policy considerations arising from the amount and manner in which funds are to be raised, as well as the allocation of monies to various public services and projects. With the power over the budget comes the power to shape the course of the State.

   While the Constitution of New York ("Constitution"), in all its permutations, has incorporated the general concept of a balance of powers among the three branches of government, it has often departed from traditional notions of which powers should be reposed in which branch. Thus, at various times, the Constitution has placed certain powers traditionally considered legislative in nature with the Governor (such as the responsibility for drafting the initial budget), or vice versa, and made some powers subject to the control of hybrid entities consisting of members of two branches, such as the Council of Appointment, composed of the Governor and certain members of the Legislature. (1) In addition, the "balance" of powers has not always been evenly calibrated, and one branch has enjoyed preeminence over the others at different times.

   Part II.A of this article reviews New York's Constitutions, from the First Constitution, adopted in 1777 after the States' declaration of independence from Great Britain, through the Constitutions of 1821 and 1846, and up to and including the Fourth and current Constitution, adopted in 1894, as thereafter adjusted by various amendments. The First Constitution created a strong Legislature and a weak Governor in reaction to the former colony's perception of the King's representative, the Royal Governor, as a domineering executive. However, following official independence, the exponential population growth (2) and the developing state's need for increased capital and transportation improvements revealed some of the defects inherent in the 1777 Constitution and led to the ratification of the Second Constitution in 1821. The Second Constitution removed some of the more severe constraints on the Governor, yet left him still weak, and attempted to resolve the shortcomings of the First Constitution primarily by placing limits on the Legislature. A generation later, the sweep of Jacksonian Democracy, with its twin tenets of distrust of all branches of government and promised safeguard of giving voters greater control through subjecting all offices to short-term elections, brought about the Third Constitution in 1846, which further weakened both the Legislature and the Governor. In 1869, and again in 1872, the Third Constitution was amended, but the Legislature and Governor remained weak. Similarly, the Fourth Constitution, as promulgated in 1894, did little to alter the basic structure of government, notwithstanding the increasingly obvious need for reform and governmental efficiency due to the Empire State's rise as the commercial and financial leader of the nation.

   The first stirrings of a concerted effort to reorganize the government were felt in 1906. And in 1915, a Constitutional Convention that promised momentous shifts was convoked. Due to a confluence of certain factors, the proposed Constitution was rejected. However, it was only a temporary setback, for by 1928 all the important changes proposed by the 1915 Convention were adopted in the form of discreet amendments. Those amendments created a robust Governor, who now had a four year term of office, was in charge of all state agencies, and exercised extensive control over the budget process. Under the Constitution's new "Executive Budget," the Governor prepared the budget and submitted it to the Legislature, which was circumscribed to acting on the budget in one of four specific ways, subject to the Governor's difficult-to-override line item veto.

   Part II.B of this article discusses in detail the role of the Governor and the Legislature in that budget process. Part II.C sets forth the significant court cases interpreting the Executive Budget amendments: People v. Tremaine ("Tremaine I,); (3) People v. Tremaine ("Tremaine II"); (4) Saxton v. Carey; (5) N.Y. State Bankers Ass'n. v. Wetzler; (6) Silver v. Pataki, (7) and Pataki v. New York State Assembly. (8)

   In those cases, as discussed in Part II.C, the courts have ruled that the specific allocation of powers stated in the Constitution trumps any general ideas of a balance of power or what types of powers belong to the executive or legislature. The courts have construed the Executive Budget amendments as granting the Governor extensive control over the budget process. Eschewing an activist role, the courts have expressed a reluctance to intrude too deeply into the budget process, which the courts recognize is largely political in nature and therefore better left to the representatives of the people. Thus, the New York courts have been careful to confine themselves to interpreting, rather than making, the law. By the same token, the courts remain vigilant to ensure that the Constitution is adhered to, and they have declared that the Governor and Legislature may not act in concert to disregard constitutional provisions which those two branches deem merely technical in nature.

   The final section of this article demonstrates how, through constitutional evolution and judicial interpretation over the course of two centuries, the Governor has been transformed from a mere "sentinel" or "figurehead" with little to do in governing New York (9) into a strong executive and the de facto chief legislator with respect to budget matters--in essence, the chief parliamentarian of the State.

2. EVOLUTION OF THE EXECUTIVE BUDGET AMENDMENT

   1. New York's Constitutions

      New York has had four constitutions, each known by the year of its adoption: 1777, 1821, 1846 and 1894. (10) Various constitutional amendments have been incorporated into the different constitutions, from time to time, through a process of legislative enactment and electoral ratification. (11) Additionally, there have been three constitutional conventions which drafted documents that were rejected by the voters: 1867, 1915 and 1967.

      1. The First Constitution of New York (1777): A Strong Legislature and a Weak Governor

         Revolutionary New York emerged as a sovereign state in reaction to a colonial history defined by a strong executive who served as the King's representative, as well as the master of the provincial legislature. (12) The Fourth Provincial Congress of the colony of New York was elected in June 1776 and met on July 9, 1776, when it ratified the Declaration of Independence. The next day, it changed its name to the "Convention of the Representatives of the State of New York." (13) A proposed Constitution was adopted on April 20, 1777; (14) John Jay, age thirty, was the chief author of the Constitution, together with his colleagues, Robert R. Livingston, age twenty-nine, and Gouverneur Morris, age twenty-four. (15)

         Under the First Constitution, the Governor, who had a three-year term, commanded the military, convened the Legislature, recommended policy changes, transacted "necessary business with the officers of government," expedited such measures as the Legislature directed, and took "care that the laws are faithfully executed." (16) A short term of office, numerous statewide elected office holders who were often antagonistic towards the Governor, and proliferating state agencies which were run as independent fiefs not answerable to the Governor, contributed to an executive bereft of power or authority. (17) New York's nineteenth century Governor was, at his most effective, merely a negative force. The Governor's constitutional powers of recommending legislation and executing the laws proved insubstantial enough to render the nominal executive branch leader a mere "sentinel" who had virtually no relationship to the actual daily business of governing New York. (18)

         The Legislature was divided into two houses, a Senate and an Assembly; the twenty-four Senators had a four-year term, while the seventy Assemblymen had one-year terms. (19) The Legislature determined its own agenda and was largely unrestrained as to what should be the subject matter of legislation at any particular point in time and as to how a bill became a law. (20) With the plenary power to determine public policy, raise revenues and expend public funds, the Legislature was the pre-eminent and dominant branch of government. (21)

         The First Constitution maintained the colonial court system, including the supreme court, the court of chancery, and the admiralty, county and probate courts, but made the judiciary independent by the provision that the chancellor (the chief judge of the court of chancery), the judges of the supreme court, and the first judges of the county courts could hold office upon good behavior to the age of sixty. (22)

         New York generally followed the doctrine of the separation of powers, with checks and balances, in its first state constitution. (23) However, some powers, such as veto and appointments, were conferred on entities composed of members of two branches of government. (24) For example, the Governor's power to appoint public officials was limited by a Council of Appointment, consisting of the Governor and certain members of the Legislature, who could thus outvote him. (25) Also, the judiciary provided a check on the executive and the legislature through its majority presence on the Council of Revision, which vetoed legislation. (26) Such power combinations reflected a post-colonial distrust for the executive and a widespread consensus that legislative supremacy was the surest guarantee of the...