BILL NUMBER: S785

SPONSOR: BRESLIN
 
TITLE OF BILL:

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to
sections 5 and 6 of article 4 of the constitution, relating to the fill-
ing of vacancies in the office of lieutenant-governor and the powers and
duties of such office

 
PURPOSE:

To adopt for the New York constitution's provisions governing the
selection and powers of the lieutenant-governor corresponding provisions
of the U.S. constitution governing the vice president.

 
SUMMARY OF PROVISIONS:

Section 1 amends article 4, state without transmitting section 5, execu-
tive to allow the governor to leave power to the lieutenant-governor.
This section also authorizes the governor to temporarily transmit execu-
              

tive power to the lieutenant-governor by written instrument transmitted
to the legislative leaders, and to provide a process by which the lieu-
tenant-governor, cabinet and Legislature can address conflicts over
apparent incapacity of the governor.

Section 2 amends article 4, section 6, to direct that the governor shall
fill a vacancy in the office of lieutenant-governor for the duration of
the term by appointment subject to confirmation by both houses of the
Legislature.

Section 3 provides the constitutionally prescribed mechanism for legis-
lative reconsideration for second passage.

 
JUSTIFICATION:

This measure would modernize the New York constitution with regard to
the office of lieutenant-governor. This measure takes as its model the
Twenty-Fifth Amendment to the U.S. Constitution, which the New York
Legislature ratified on March 14, 1966 to provide for interim selection
of the vice president of the United States and for the office's powers
if the president is incapacitated. Adopted by several states nearly five
decades ago, this approach offers New York a clear, well-tested and fair
way to address these matters of the highest importance to effective
governance of the Empire State.

1. INTERIM SELECTION. In SKELOS V. PATERSON, 13 N.Y.3d 141 (2009), the
Court of Appeals correctly held that current law authorizes the governor
to fill a vacancy in office of lieutenant-governor by executive appoint-
ment, without need for legislative confirmation. As a prospective policy
matter, the instant amendment takes cognizance of the Twenty-Fifth
Amendment to the U.S. Constitution, ratified by the New York Legislature
in 1966, which requires bicameral confirmation of presidential appoint-
ment of a vice president in the event of a vacancy in that office. See
U.S. Const., 25th Amend, § 2. This process was the one by which New York
Governor Nelson Rockefeller was appointed and confirmed as vice Presi-
dent in 1974. Grafting this same process onto the New York State Consti-
tution would provide constitutional assurance that a lieutenant governor
standing next in line to the executive power would have legitimacy to
act with assent of voters' elected representatives -- a protection that,
as the Court of Appeals correctly held, does not exist under current
law. Such is the gap that this measure seeks to fill.

2. REPEALING OUTDATED RESTRAINTS ON GUBERNATORIAL TRAVEL. This amendment
would eliminate the New York Constitution's arcane provision that the
lieutenant-governor automatically becomes acting governor if the gover-
nor leaves the state. In a technologically integrated world of tele-
phones, e-mail and video conferencing, there is no legitimate reason
that the governor automatically cedes power simply by leaving the terri-
torial confines of the state. Likewise, in a global economy in which New
York must compete for jobs and investments, New York's governor occa-
sionally must travel and there should be no constitutional limit on his
or her ability to do so. If extended travel or other reasons may impel
the governor to temporarily cede power for a period of time, other
Provisions of this amendment would allow the governor to do so.

3. TEMPORARY SUCCESSION BY EXECUTIVE LETTER. This measure would adopt
the Twenty-Fifth Amendment's approach where the executive anticipating
temporary incapacity (e.g. surgery) wishes to cede power for the dura-
tion of his or her incapacity. Under the U.S.  Constitution, the presi-
dent may temporarily cede power to the vice president by letter trans-
mitted to the respective leaders of the U.S.  Senate and House, then
reclaim power by a second letter. See U.S.  Const., 25th Amend., § 3.
Several presidents used this provision when undergoing anesthesia

(e.g. President Reagan in 1985, President George W. Bush in 2002 and
2007) A corresponding amendment to the New York Constitution would
ensure similar uninterrupted clarity in the highest office of the state.

4. TEMPORARY SUCCESSION BY JOINT DECLARATION. This measure would adopt
the Twenty Fifth Amendment's approach in the event that the governor is
incapacitated but has not transmitted power as above. Under the U.S.
Constitution, if the president is incapacitated and cannot discharge the
duties of office, the vice president and a majority of the cabinet
jointly may certify that fact to Congress, after which the vice presi-
dent assumes executive power until the president transmits a letter
re-assuming the duties of office. See U.S. Const., 25th Am.,4. If the
president transmits such a letter and the vice president and a majority
of the cabinet disagree within four days, then Congress, must decide the
issue and may sustain the vice president's authority by two-thirds vote
of both Houses. See id. This balanced process fills a key constitutional
gap in which it otherwise may be unclear who holds executive power, or
whether the officer wielding it acts with broad legitimacy. Any such gap
or conflict in executive leadership is unacceptable in an advanced
democracy and would trigger a constitutional crisis at a moment already
fraught with the exigencies of executive incapacity. The New York
Constitution contains this same gap that the Twenty Fifth Amendment
filled for the U.S, Constitution, and its remedy should be constitution-
alized in the same balanced, direct and practical way that the Twenty
Fifth Amendment provides for our federal government. These approaches
were exhaustively vetted nationwide and specifically approved by the New
York Legislature as part of the 1965-1967 ratification process.  In the
decades since, experience has shown that this path guides our nation's
leaders as intended, ensuring stability and certainty for the highest
office of the land during critical moments that most require clarity and
dispatch. This measure for New York State would ensure popular legitima-
cy in all of these fundamental aspects of the executive power, while
honoring our constitution's axiom that the executive power must flow
only by vote of the people or their elected representative.

 
LEGISLATIVE HISTORY:

2017-2018: S.2687 Opinion Referred to Judiciary

2015-2016: S.1330 Opinion Referred to Judiciary

2013-2014: S.1163 Referred to the Senate Judiciary Committee.

2011-2012: S.589 Referred to the Senate Committee on the Judiciary

2009-2010: S.7682/A.10952 Passed the Senate/Remained in the Assembly
Committee on Judiciary

 
FISCAL IMPACT:

None.

 
EFFECTIVE DATE:
Resolved (if the Assembly concur), That the foregoing amendment to the
first regular legislative session convening after the next general
election of members of the assembly, and, in conformity section 1 of
article 19 of the constitution, be published months previous to the time
of such election.