Decided December 16, 2004
In the normal course of legislative process under the New York State (NYS) Constitution’s Article III, all legislation originates in the Legislature. Any bill passed by a majority vote of both houses there may be signed or vetoed by the Governor. A vetoed bill could then be enacted by a two-thirds vote of both houses of the Legislature.
This law-making process is different when it comes to the State’s budget, i.e. the amount of money it takes in and where that money is spent. Article VII of the NYS Constitution provides for “executive budgeting.” This means that the State’s budget originates with the Governor. The Governor initially gathers from departments within the Executive branch their funding requests. He then submits a budget and proposed legislation implementing it (in the form of bills) to the Legislature. According to Article VII Section 4 of the NYS Constitution, the Legislature “may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein.” This so-called “non-alteration” provision means that the Legislature may reduce or cut out completely funding for an item sought by the Governor who proposed it, but it may not increase the amount of funding for any item in the Governor’s appropriation bills. Any gubernatorial budget bill approved by the Legislature automatically becomes law.
In these cases, the court was asked to weigh the budget-making powers of the Governor and the Legislature as well as decide the proper application of the “no-alteration” provision. They arise out of events in 1998 and 2001 in which the Governor and the Legislature disagreed about aspects of the state government’s spending plans.
In both cases, the Legislature considered the Governor’s budget and appropriations bills, passing some, reducing some, and completely striking out others without violating the no-alteration provision. Afterwards and, the Governor argued, in violation of the no-alteration provision, the Legislature passed bills that sought to change appropriation legislation that the Legislature had just enacted. For example, the Legislature passed the Governor’s proposed appropriation of $180 million to build a prison in Franklin County. Not long after the proposed appropriation was passed, the Legislature passed a bill that allowed the funds to be available only after further legislative authorization. The Legislature’s bill also required the prison to have a separate building designated for educational, vocational, and recreational activities. The Governor claimed that the Legislature’s actions had altered his appropriation bills in violation of the no-alteration provision of the NYS Constitution.
The New York State Court of Appeals decided that the Legislative amendments violated the no-alteration provision of the NYS Constitution. In coming to its decision, the Court looked to reports and records from the 1915 NYS Constitutional Convention, where the executive budgeting process was debated and made part of the NYS Constitution. Executive budgeting made sense because the Governor has direct supervisory control over the administrative departments and can better determine their funding needs. This enables him/her to come up with a budget that makes sense. In addition, the Governor is answerable to the entire state whereas legislators are only answerable to their own districts. Legislative budgeting, therefore, leads to wasteful pork barrel spending and a lack of responsible assessment of relative budget priorities. The “no-alteration” provision was seen to be essential to executive budgeting. Henry L. Stimson, an important architect of the executive budgeting provisions, explained, “the budget must be protected against its being wholly superseded by a new legislative budget and a resort to the same situation we have now [before executive budgeting.] Otherwise, you would have nothing.”
The Court of Appeals found that to permit the Legislature to rewrite the details of the Governor’s budget as it did numerous times in 1998 and 2001 would be inconsistent with executive budgeting as required by the NYS Constitution. The Court recognized that the “classic ‘separation of powers’ between the executive and legislative branches is modified to some degree by our Constitution” with regard to executive budgeting, but that the essential lawmaking authority of the Legislature is intact because no budget could pass without the Legislature’s assent.
The two dissenters and even the concurring opinion were concerned about the potential for abuse by the Governor and the diminution of the Legislature’s law-making powers. Most policy-making costs money and therefore any policy may be considered in the context of an appropriation bill. That being the case, they questioned what would prevent the Governor from using his executive budgeting authority to “legislate” in essentially non-budgetary areas.
Terms to Know
· appropriation bills
· executive budgeting
· pork barrel spending
Silver v. Pataki, Pataki v. Assembly (the Pataki cases) and United States v. Nixon (418 U.S. 683 (1974)) all deal with the issue of the scope of executive power and its potential for abuse. In Nixon, the President declined to release tape recordings of certain conversations sought by the court in a prosecution related to the Watergate Affair. He claimed that “executive privilege” gives him the right to protect communications between him and his advisors from public dissemination in order to make sure advice given to the President by his advisors will not be tempered “with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”
The U.S. Supreme Court agreed that “executive privilege,” though not expressly in the U.S. Constitution, has constitutional underpinnings. The Court, however, refused to apply executive privilege to the communications sought in the Watergate Affair, finding that the privilege was not absolute and did not go as far as the President asserted. They wrote, “In designing the structure of our Government and dividing and allocating the sovereign power among three coequal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. “
In the Pataki cases, the New York State Court of Appeals decided that the power claimed by the state’s chief executive, the Governor, went as far as Governor Pataki asserted. How do “executive privilege” and “executive budgeting” create the potential for abuse of executive power? Which power is more dangerous if it becomes more absolute?
The Pataki cases involve the interpretation of the New York State Constitution. The Nixon case involves the interpretation of the United States Constitution. Link onto the text of each of these documents and compare their structures and general content.
Interesting Note: A Webcast of Pataki cases argument can be found at