Executive Powers
Executive Powers

The current debate on executive powers is often time confused with "executive power" - that is, the power of the executive vested in the Governor by the State Constitution.  Executive powers include both the formal powers enumerated in the constitution, and informal powers, not enumerated by the constitution, but wielded to varying degrees by the governor.  As it stands today, the Governor of New York is among the most empowered in the nation.

The New York State Constitution clearly enumerated the formal powers of the Governor in Article IV.  The governor also has a number of informal powers that have stemed from decades of precedent.  The questions regarding these powers are "Should these informal powers be clearly outlined in the Constitution", and "To what degree do these powers affect the balance and separation fo powers in New York".

Since the fiscal crisis in the 1970's, Governor's of New York have been ineffective at reversing the trend towards general dysfunction in Albany.  The general trend in New York over the past century has been to empower the executive.  The end result of a series of empowering constitutional amendments and court decisions has resulted in the Governor of New York having a broad range of executive powers that in many ways exceed those of most other states.  While the powers of the executive are many, recent governors (excluding Governor Andrew Cuomo) have been ineffective at forwarding their policy objectives.  Governor Pataki's term was mired in interpersonal conflict, Eliot Spitzer's brief term in office ended in scandal, and David Patterson's term was mired in some of the worse government dysfunction where, at one time, both parties claimed majority control, effectively grid-locking the State Senate for a month. A casual observer might conclude from this that the Governor of New York does not wield all that much power, but structurally at least, this is not the case.

The Governor of New York is one of the most powerful governors in these United States, and the governor wields these powers to further policy his agenda.  The political process in New York has degraded to the point where there is little or no transparency in the process. This is exacerbated by the extensive powers granted to the Governor.  Without the ability to issue a message of necessity, for instance, the legislators would actually have time to read the bills they are signing into law, debate them, and perhaps even have a discourse with the public they represent.  The system we have now enables the Governor and the legislative leaders to hastily pass bills in the dead of night that were negotiated behind closed doors.  The argument for this is that if it were not done this way, everything would get bogged down by the legislative process, and nothing would ever get done.  Perhaps this is true, but wouldn’t the inability of the State Government to act on anything serve as a clear indication of the necessity to elect legislators that are willing to work with one another?

The New York State Constitution establishes the Office of the Governor to be one of the most powerful State Executives in the United States. The formal powers of the Governor include veto power, unlimited tenure (no term-limits), long term and powerful appointing authority (there are in fact few state-wide elected officials), very strong budget authority, and legislative control, and the ability to grant pardons.  The only area where the Governor is weaker than those of other states is in the authority to independently reorganize state government.

 

Formal Powers:

 

Veto Power: Article IV, §7 of the state constitution gives the governor the authority to return a bill with objections, passed by both houses of the legislature.  Overriding this veto requires a 2/3 majority in both houses of the legislature.  Since taking office, Governor Andrew Cuomo has not exercised the Veto on any substantial policy issue.  His predecessor, Governor Patterson, exercised the veto with regularity, notably on the hydrofracking bill, and some 6,681 line-item vetoes of provisions in the 2010-2011 budget. (For more detail on the veto powers of the New York Governor and the Governors of other States, please refer to the table below).

From: http://www.ncsl.org/issues-research/budget/gubernatorial-veto-authority-with-respect-to-major.aspx
JurisdictionFunding for a Particular Line ItemFunding for an Entire Program or AgencyLanguage Accompanying Approp. Itself †Language in Footnote or Following Approp. Explaining How $ to Be Spent †Proviso or Contin­gency Language on Expend. of Approp. †Entire Bill OnlyReduce (R) Amounts or Substitute(S)Other
Alabama*xS*
Alaska*xxx*x*x*R
Arizona*xxx*x*
Arkansasxx
California*xxx*x*x*R
Colorado*xx x* x*
Connecticutxx
Delawarexx
Florida*xx*
Georgiaxxxxx
Hawaiix
Idahox
Illinois*xxR*
Indianax
Iowa*xxxxx x*
Kansasxx
Kentucky*xxxx—*
Louisiana* x*xxxx
Maine* x*xR* x*
Maryland* x*
MassachusettsxxxxxR
Michigan  xx x x
Minnesotax
Mississippixxxxx
Missouri*xxx*R 
Montana*  x* x x*
Nebraska*xxx*R
Nevadax
New Hampshirex
New JerseyxxxxxR
New Mexicoxxxxx
New York*xxxxx x*
North Carolinax
North Dakotaxxxxx
Ohioxxxxx
Oklahomaxxxxx
Oregonx
Pennsylvaniaxx
Rhode Islandx
South Carolinaxxxxx
South Dakotax
TennesseexxR
Texas*xxx*x
Utah*x***
Vermontx
Virginia*  x*x x* x* x*R
Washingtonxxxxx
West VirginiaxxxR
Wisconsin*xxxxR*, S*
Wyomingxxxx
American Samoa (N/R)
District of Columbia (N/R)
Guam*x x*
Northern Mariana Islands*xxx x*
Puerto Ricoxxx
U.S. Virgin Islands (N/R)
Source: National Conference of State Legislatures, November 2008
 
Key:
— = Not applicable
N/R = No response
† = Language Accompanying Appropriation: Language that describes an appropriation and is next to the appropriation. This may be a title or short description.
† = Footnote Language: Language that describes how money is to be spent. Footnotes also may be called legislative intent language. Footnotes usually appear on the bottom of the page with the corresponding appropriation.
† = Proviso Language: Language that explains what the executive, legislative or judicial agency has to do to receive an appropriation. This also is known as contingency language.
 
*Notes:
AlabamaThe governor may veto the bill entirely or offer executive amendments. The legislature may accept the amendments or may pass the original bill again with a majority vote, causing it to go into effect without the governor's signature.  The governor has line item veto if the Legislature is still in session. In 2008, the governor used his line-item veto authority to veto language that created a conditional appropriation.  Whether that veto is a constitutional exercise of the governor's authority is currently (October 2008) the subject of litigation between the legislature and the governor.
AlaskaThe governor can veto anything that appears as a line item, meaning that that governor can reduce or eliminate funding at any level it appears in a bill.  The governor can veto language setting conditions on an appropriation only if the funding for that purpose is vetoed.  Intent language (a statement of legislative intent that does not carry the force of law) can be vetoed without a veto of the associated appropriation.
Arizona The gvernor can veto the footnote or the proviso if those items by themselves constitute the appropriation (sometimes appropriations to spend extra dollars are in the footnotes). The governor cannot veto the footnote if it  controls how the funding is to be spent, without vetoing the line item as well. 
CaliforniaThe governor can eliminate language only when vetoing an appropriation.
ColoradoIntent language and contingency language may be vetoed only if the associated appropriation is vetoed.
FloridaThe governor may veto a proviso only if the accompanying appropriation is also vetoed.
IllinoisThe governor has reduction veto power on a particular line item. The amount he/she approves becomes law unless the veto is overridden by the legislature.
IowaAs a result of a state Supreme Court suit, the governor, in item vetoing, must veto a complete section—he or she can do that only in an appropriations bill. Before this suit, the governor vetoed words.
KentuckyVetoes may be overridden by a majority vote of the members of each chamber.
LouisianaThe governor can veto anything that appears as a line item or veto the entire bill.
MaineThe governor may replace a disapproved line item amount provided that there is no net increase in appropriations.  A majority vote of each house overrides a governor's veto.
MarylandThe governor has no veto power over appropriations for the operating budget, but has a line-item veto over projects funded in the capital budget bill.  These provisions are logically linked to the unique Maryland constitutional provision that prohibits legislators from adding amounts to the governor's budget recommendations.  Any appropriations sent from the General Assembly to the governor are the amount the governor has recommended or below that amount, other than capital budget items.
MissouriWords that set out the purpose of an appropriation may be stricken only when the appropriation is vetoed.
MontanaThe constitution states that the governor may veto “items,” generally defined as specific appropriations. However, “item” also includes standard language. If a bill originally passed by a two-thirds vote and the Legislature has adjourned, the secretary of state can poll the legislative membership by mail for a veto override vote.
Nebraska—”Line items” for veto purposes are the same as an agency program.  However, appropriations from different fund sources are individually listed in a bill and can be individually vetoed.  The only case in which language can be vetoed is earmark language that contains an appropriation; the language and appropriation must be vetoed together.
New YorkThe governor may veto only legislative “additions” to the budget, which is to say, the governor cannot veto amounts he has recommended to the legislature.
TexasAt the end of each general appropriations bill conference committee report are a number of appropriations made contingent on the passage of other legislation. They are listed as individual appropriations riders and are subject to the line-item veto power.
UtahTo veto intent language, the entire item (including funding) must be vetoed.
VirginiaGubernatorial line item vetoes must strike an indivisible sum of money for a stated purpose, along with all language conditions or restrictions applied thereto. Language may not be stricken without also striking the accompanying appropriation.
WisconsinThe governor may reduce an appropriated amount by striking a digit. The governor also may strike an entire amount and write in a lower figure.  This power is applicable only to appropriations, not to other numbers that may be in a bill.
GuamThe governor also has authority to veto the entire bill.
Northern Mariana IslandsThe governor has a vast line-item veto power. The only restriction is that if a line-item veto is made on certain worksheets, all related administrative provisions also must be vetoed; otherwise, such veto will not be effective. In case of discrepancies between the worksheets and the administrative provisions, the latter shall prevail.
Posted March 1999, Updated December 2008.
http://www.ncsl.org/issues-research/budget/gubernatorial-veto-authority-with-respect-to-major.aspx
         

 

Term Limits: The in New York State, the governor is not constrained by term limits.  The longest sitting governor was Governor George Clinton, who served a total of 21 years (non-consecutively). The shortest term of any governor was that of Governor Charles Poletti, who served a total of 29 days.

Appointing Authority:  The New York State Governor has not always had such broad powers to appoint people to state-wide office.  Until 1921 the appointment power rested solely with the Council of Appointment. The Governor presided over the Council, but only had a casting vote.  The rest of the Council was comprised of four State Senators, one from each of the four senatorial electoral districts.  The Constitution of 1821 abolished the Council, and empowered the legislature to make most appointments, the Governor to make relatively few, and increased the number of local offices that were elected instead of appointed.  In 1894, most appointments were eliminated, favoring gubernatorial appointment or state-wide election.  Article V §4 of the New York State Constitution was amended in 1938 and again in 1961, granting the Governor powerful appointing authority.

Legislative Control: Article IV, §3 of the constitution grants the Governor the authority to “to convene the legislature, or the senate only, on extraordinary occasions. At extraordinary sessions convened pursuant to the provisions of this section no subject shall be acted upon, except such as the governor may recommend for consideration.”  This gives the Governor the ability to force the legislature to meet, and to only consider the issues proposed by the Governor.

Budget Authority:  In New York State, the Governor has the power to structure the each year’s appropriation bills, can force the legislature to act on those proposals before considering any other bills, and has a powerful line-item veto on all appropriations except those propose in the executive budget.

While these collections of formal powers are amongst the most extensive in the nation, the powers of the Governor do not end there.  In addition to the formal powers granted by the Constitution, the Governor also wields a set of informal powers.

Informal Powers:

These powers are those that the Governor has, but are not specifically granted under the Constitution.  The Governor is elected state-wide, and is a full time position.  The people of New York look to the Governor expecting a clear vision of leadership, and view the Governor as a locus of authority. The Governor of New York benefits greatly from the stature of the State of New York amongst the other States in the US, as well as the stature of New York City amongst the cities of the world.  New York is viewed as a very important place for business and commerce, arts and culture, etc., and the Governor of New York is granted a sort of VIP status because of this.  The stature of New York also gives the Governor of New York a place on the national stage.  When coupled with Presidential eligibility, the Office of the Governor of New York commands attention from local and national media.  In the history of New York State, there have been 4 governors that have gone on to become President of these United States, 5 governors to become Vice President, 4 governors to become Secretary of State for the US government, and 2 to become Chief Justices of the Supreme Court.  Among the notable names of New York Governors that went on to higher office are Theodore and Franklin D. Roosevelt, Martin Van Buren, Grover Cleveland, and Nelson Rockefeller.

In addition to the bully pulpit, the Governor of New York also has the personal powers associated with the type of politician that rises to become governor.  Included in these are mandate and ambition.  Also, the recent occurrence of polling can be leveraged by governors as a source of power as strong poll numbers signal legislators of the dangers of opposing a popular governor or popular policies.  These polls can also act as a double edged sword, as low poll numbers indicate weakness, and may empower the legislature to oppose the governor.

Adding to these powers is that the counterbalancing institution, the legislature, has fallen into disrepute.  Due to the dysfunction and inaction by the legislature in recent years, it is often criticized as an ineffectual institution.  The failure of the Democrats to organize when they controlled the State Senate briefly quickly led to complete chaos within the institution, and a month long deadlock that had both parties claiming majority control. This is further complicated by the Courts historic preference towards favoring the Governor, particularly in budgetary matters and matters of appointment.  The courts upholding the Governor's authority to fill a vacancy in the Office of the Lieutenant Governor is an example of the Courts’ deference to the Governor.

Aside from issues of transparency associated with a strong Governor, the question of the de-vitalization of the legislature is also raised by further empowering the Governor.  This year (2012), Governor Andrew Cuomo has included in his executive budget language that would allow him to move money between agencies without legislative approval.  He also included a proposal that would strip the State Comptroller of the authority to review some state contracts before they are approved. Both of these are grabs for more power.  If the Legislature loses more powers in budgeting, it will become little more than a debating society.  If the Comptroller is stripped of its review authority, there will be even less oversight and transparency.

NEWS BEHIND THE CONSTITUTION
Crain's New York
Daniel Massey
Sunday, March 25, 2012
 During a radio interview last fall, Gov. Andrew Cuomo proclaimed, “I am the government.” He didn't mean to brag. But to those familiar with the inner workings of the Cuomo administration, his quip was simply a declaration of fact.
Link to Original Source - Link to Cached Version
 
New York Times
Thomas Kaplan
Friday, February 17, 2012
ALBANY — In his proposed budget for next year, Gov. Andrew M. Cuomo has inserted language that would allow him to move money between state agencies without legislative approval.He has included a clause that would allow him to give out some...
This article highlights the Governor's attempt to concentrate more power within the executive branch.
Link to Original Source - Link to Cached Version
 
Daily News
Glenn Blain
Thursday, July 8, 2010
ALBANY - Gov. Paterson put his vetoes in the hands of the Legislature on Wednesday.Paterson, almost daring the Legislature to try and override him, made good on his promise to reject lawmakers' added spending and sent nearly 6,700 signed veto...
This article demonstrates how the Governor ccan vigarously use the line-item veto on the State Budget to gain leverage over the legislature.
Link to Original Source - Link to Cached Version
 
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