Authorizes the governor to fill vacancy in the office of lieutenant-governor on confirmation of both houses of the legislature

Summary of provisions

Section 1 amends article 4, section 5, to allow the governor to leave the state without transmitting executive power to the lieutenant-governor. This section also authorizes the governor to temporarily transmit executive power to the lieutenant-governor by written instrument transmitted to the legislative leaders, and to provide a process by which the lieutenant-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 legislative 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 appointment, 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 appointment 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 President in 1974. Grafting this same process onto the New York State Constitution 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 governor leaves the state. In a technologically integrated world of telephones, e-mail and video-conferencing, there is no legitimate reason that the governor automatically cedes power simply by leaving the territorial confines of the state, Likewise, in a global economy in which New York must compete for jobs and investments, New York's governor occasionally 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 duration of his or her incapacity. Under the U.S. Constitution, the president may temporarily cede power to the vice president by letter transmitted 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 president 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 constitutionalized in the same balanced, direct and practical way that the Twenty-Fifth Amendment provides for our federal government.

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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 legitimacy 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 representatives.

Legislative history

None. New proposal

Fiscal impact

None.