Executive orders and gubernatorial authority to reorganize state government.

• Author: Benjamin, Gerald
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

This essay considers the extent and limits of the power of a newly elected governor of New York State to reduce the size of government by executive action. To do this, we explore the nature and use of executive orders for reorganization and in emergencies, both in the states generally, and in New York. We find that the New York governorship, generally regarded as one of the strongest in formal powers, is in fact less empowered in this area than the office in many other states.

One leading aspirant for the governorship, Andrew Cuomo, has indicated an intention to "eliminate 20 percent of the state's more than 1,000 agencies, authorities, commissions and the like," and to create a high level reorganization commission toward this end. (1) After examining the experience with and legal basis for gubernatorial reorganization authority in New York and other states, we conclude that there may be some limited opportunity for a governor to act on his own authority in this area. In general, however, we concur that, at a minimum, statutory authority is required to achieve thorough restructuring of state government. Adopting a statute on the model currently in force in New Jersey would maximally empower the governor to achieve substantial state government reorganization in New York.

1. EXECUTIVE ACTION TO ALTER THE STRUCTURE OF NEW YORK STATE GOVERNMENT REQUIRES A STATUTORY OR CONSTITUTIONAL BASIS

   Unlike the national government, which under the U.S. Constitution is one of limited, delegated powers, "state governments[,] acting through their state legislatures[,] are presumed to have broad, residual, almost plenary governmental power" except insofar as these are limited by state constitutions. (2) But these powers are vested in legislatures and do not extend to state executives, who must find a constitutional or statutory basis for their actions. (3)

   It is therefore universally the case in American separation of powers systems that the formal power to adopt public policy is with the legislature. In New York, the governor's constitutional role in policymaking is defined with reference to the legislature. The state constitution provides that "the governor shall communicate by message to the legislature at every session the condition of the state, and recommend such matters to it as he or she shall judge expedient." (4) He or she may call both houses into a special session for which he or she defines the agenda. And after legislative action, the governor is required to "expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed." (5) There is an executive veto in New York, but it may be overridden by a vote of two-thirds of the members elected to each legislative house. (6) The veto itself was originally conceived as a means of correcting errors, and only over time evolved to a tool with which the governor could contest legislative policy choices. (7) It is the intent of the New York State constitution that the governor have no "pocket veto," that is, that he or she not be able to block the legislature's will by inaction, so long as it remains in session.

   The governor's power in budgeting, carved from legislative prerogative through twentieth century constitutional change, in accordance with the goals of the progressive reform movement, (8) was further extended by the state's high court in recent years. (9) In contrast, the power to issue executive orders, not explicitly given in the state constitution, has been interpreted in the courts in a manner far less generous to the executive.

   The power is based on the provision that "[t]he executive power shall be vested in the governor," which was added to the New York State constitution in 1821 in apparent emulation of the vesting clause in the United States Constitution. (10) There has been considerable controversy regarding the degree to which the United States President is independently empowered by the vesting clause. (11) However, the state's leading contemporary constitutional historian, Peter Gailie, wrote in 1991 that "[t]he question of whether the phrase executive power confers on the governor powers or simply the title has not occasioned the same controversy in New York as it has at the national level." (12)

   In Rapp v. Carey, in 1978, the New York Court of Appeals overturned, for lack of constitutional or statutory basis, Governor Hugh Carey's executive order requiring public employees to refrain from certain political and business activities, and file financial disclosure forms. (13) This was the first time such an action was taken by the state's high court. (14) In taking this action, Gailie found, the Court of Appeals "narrowed the range of executive orders, claiming that the executive may not 'go beyond state legislative policy and prescribe a remedial device not embraced by the policy.'" (15) Germane to the potential use of executive orders to deal with a fiscal emergency, the court two years later in Oneida County v. Berle struck down the use of an executive order to impound local assistance funds. (16)

   In later decisions, however, the Court of Appeals sought to distinguish particular circumstances, and thus moderate the effect of this Rapp v. Carey language. Over Republican objection, it allowed Governor Mario Cuomo's executive order, using state agencies to establish voter registration programs, saying that "[i]t is only when the executive acts inconsistently with the legislature, or usurps its prerogatives, that the doctrine of separation is violated." (17) Similarly, just over ten years later in Bourquin v. Cuomo, the court allowed the creation, by another Cuomo executive order, of a not-for-profit entity to represent customers in utility rate setting proceedings as an alternative way to achieve legislative authority already granted. (18)

2. REORGANIZATION POWER IN NEW YORK RESIDES WITH THE LEGISLATURE, EXCEPT ...?

   Empowering governors as state chief executives in accord with the then emerging corporate model, and concomitantly restructuring state bureaucracies to be accountable to them, was a principle element of the Progressives' agenda at the turn of the twentieth century; there was a growing movement for administrative reform in the state. (19) The context for this effort was the rapid and seemingly chaotic growth in the size of the government. The number of state entities grew from 39 in 1894 to 152 by 1914. (20) The per capita cost of government increased from $2.47 to $5.41 between 1904 and 1914. (21) Although modest efforts were taken by the administrations of Governors Charles Evans Hughes, William Sulzer, and Martin Glynn, the first major administrative overhaul of state government was attempted at the 1915 Constitutional Convention. The resulting constitution was defeated at the polls for reasons unrelated to administrative restructuring. (22) However, its recommendations were later taken up by Governor Alfred Smith, who served as a delegate to the 1915 convention. (23)

   Governor Smith's push for reorganization began immediately after he took office in 1919 with the creation of the Reconstruction Commission on Retrenchment and Reorganization. (24) The Commission's final report included many of the recommendations of the 1915 Constitutional Convention. (25) With some bipartisan support, the statutory reforms recommended by the Commission were passed during Governor Smith's first term. (26) Those proposed in three constitutional amendments failed, however, and Governor Smith left office when he lost his bid for reelection in 1920. (27)

   When he was elected again in 1922, Smith resumed his efforts to achieve state government reorganization. (28) By 1925, he had achieved the passage of two of the three previously proposed constitutional amendments. (29) Thereafter, some of the more controversial issues--relating to a smaller number of single-headed departments--found their way into legislation. New York's reform efforts later served as a model for other state governments. (30) Importantly, all of these seminal changes were achieved through specific constitutional amendments or legislative action. None arose as the result of general reorganization authority vested in the governor.

   An analysis of experience with reorganization in the forty-eight contiguous states of the United States between 1900 and 1985 concluded that the major efforts are likely to occur on a twenty-five year cycle, "when long-wave [economic] declines and rationalistic rhetoric coincide with institutions that encourage access to the governmental agenda." (31) Another study, published in the early 1990s, found that "[a]ttempts to overhaul the executive branch of state governments have occurred in five waves." (32) Interestingly, "incremental adjustments to the status quo--'nibbling away' at problems in one or several agencies at a time--may be sufficient to greatly reduce the possibility a state will pursue a comprehensive reorganization." (33)

   A detailed review of the New York experience confirmed that state government reorganization efforts are cyclical. Additional institutional structures are created to achieve the goals of newly elected leaders, or under pressure for response to particular policy concerns. (It is often easier to achieve changed objectives through new organizations, than to redirect the priorities of established ones. It is also symbolically more powerful.) Then when the disorder becomes too great, or countervailing fiscal constraints come to dominate the policy landscape, often with newly elected leadership, an effort at retrenchment through reorganization emerges. (34) That is,

   [p]ressures for restructuring derive from all governors' interest in enhancing the management abilities of their office as well as the pressures that come to bear upon them from relatively more "inefficient" governments. Governors respond to these pressures based upon the enabling resources at their disposal to...