Governor Can Appoint Lieutenant 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 REPEALING OUTDATED RESTRAINTS ON GUBERNATORIAL TRAVEL.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.