Academic journal article Albany Law Review

Executive Orders and Gubernatorial Authority to Reorganize State Government

Academic journal article Albany Law Review

Executive Orders and Gubernatorial Authority to Reorganize State Government

Article excerpt

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.

I. 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. …

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