What’s The Constitution Between Friends?

Professor's Piece: 

The fate of the Affordable Health Care Law, President Barack Obama’s signature social policy initiative, is before the U.S. Supreme Court. Meanwhile the federal deadline approaches to create state level Health Exchanges to implement it. Big money is at stake. Governor Andrew Cuomo supports the policy and wants the money for New York. He also wants to be seen as a strong backer for Obama’s reelection. Assembly Speaker Silver and his Democrat conference are like minded. But Senate Republican Majority Leader Dean Skelos and his co-partisans, with national GOP sentiment aroused against, would not pass the needed law.

So an accommodation was found. All the tradeoffs are still not known, but on the Health Exchange all agreed that the governor would act by executive order and the leaders would not challenge his authority to do so. The three remained friends. Newly functional New York State government was made to work once again.

But how about representative democracy and the separation of powers principle? How about New York legislators’ complaints in recent weeks about Governor Cuomo’s predilection to push executive powers to the limits… and perhaps beyond?

That is, how about the state constitution?

As I recently summarized in the Albany Law Review (in an essay written with Zach Keck), governors must find a constitutional or statutory basis for acting with and through executive orders. A reading of Governor Cuomo's recent order establishing a Health Care Exchange within the state Health Department reveals no specific basis in the state constitution or state law. Only federal law is directly mentioned.

When executive orders have been challenged, New York courts have sometimes found that governors have overreached, other times not. Governor Carey’s requirement by executive order that state employees refrain from certain political and business activities and file financial disclosure forms was stricken down by New York’s high court, the Court of Appeals, as was his attempt to use such an order to impound local assistance funds.  In contrast, Governor Mario Cuomo’s order requiring state agencies to register voters was allowed to stand. Interestingly, Governor Pataki’s attempt to enter into a pact with a native American tribe to establish a casino by executive action alone was blocked by the Court of Appeals, but then permitted after legislative authority was provided.

There has been some implication in press accounts that state legislation to establish Health Exchanges in New York is not required because this initiative will involve only federal, not state funds. But in  Anderson v Regan in 1982 the Court of Appeals ruled that the state constitution requires that federal funds be subject to the state’s budgetary process.  

There may be some idea (as noted, unstated in the order itself) that the governor may rely for his order in this matter on the on the broad power given under law to the Commissioner of Health to assure the public health. But in Borelli v. Axelrod, decided in 1987, the Court of Appeals clearly said that failure of the legislature to act, if it had taken a matter under consideration, was not enough justification for executive action without the legislature. This case involved the adoption of certain regulations banning smoking in public places in violation of the separation of powers. It is particularly interesting in the current context not only because of the principle but the locus of action: it directly involved the Department of Health.

So executive power has been extended yet again in constitutional circumstances that are, at best, questionable, while the legislature stands by and the public is silent.  But after all, as the 19th Century Tammany Congressman Timothy John Campbell is reported to have remarked to President Grover Cleveland, upon Cleveland's saying he would not support a bill on the grounds that the bill was unconstitutional, "What's the Constitution between friends?"




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