George E. PATAKI, as Governor of the State of New York, Respondent, v. NEW YORK STATE ASSEMBLY et al., Appellants. Sheldon SILVER, as Member and Speaker of the New York State Assembly, et al., Appellants, v. George E. PATAKI, as Governor of the State of New York, Respondent.
Court of Appeals of New York
Argued November 16, 2004; decided December 16, 2004
824 NE2d 898, 791 NYS2d 458
Hancock & Estabrook, LLP, Syracuse (Stewart F. Hancock, Jr., Alan J. Pierce and Sonya G. Bonneau of counsel), for New York State Senate, appellant in the first above-entitled action. I. The Appellate Division holding that the Governor may incorporate amendments to existing laws, programmatic policy measures and other general legislative matters in his proposed
Weil, Gotshal & Manges LLP, New York City (Steven Alan Reiss, Gregory S. Coleman, Janet L. Horn and Gregg J. Costa of
Stillman & Friedman, P.C., New York City (Paul Shechtman and Nathaniel Z. Marmur of counsel), for respondent in the first above-entitled action. I. The Legislature unconstitutionally altered the Governor‘s appropriation bills in violation of
Weil, Gotshal & Manges LLP, New York City (Steven Alan Reiss, Gregory S. Coleman, Janet L. Horn, Kristyn Noeth, Hope L. Karp and Gregg J. Costa of counsel), for Sheldon Silver, appel-
Hancock & Estabrook, LLP, Syracuse (Stewart F. Hancock, Jr., Alan J. Pierce and Sonya G. Bonneau of counsel), for New York State Senate, appellant in the second above-entitled action. I. “Non-appropriation bills” are not appropriation bills and cannot be treated as such for the purpose of applying the restrictions on legislative alterations imposed by
Cravath, Swaine & Moore LLP, New York City (Max R. Shulman of counsel), for respondent in the second above-entitled action. I. The courts below correctly held that the Legislature‘s alterations to the Governor‘s items of appropriation were unconstitutional and therefore void ab initio. (Wein v. State of New York, 39 NY2d 136; People ex rel. Burby v. Howland, 155 NY 270; Saxton v. Carey, 44 NY2d 545; Schuyler v. South Mall Constructors, 32 AD2d 454; Rice v. Perales, 156 Misc 2d 631, 193 AD2d 1135; Matter of King v. Cuomo, 81 NY2d 247; People v. Carroll, 3 NY2d 686; Ivey v. State of New York, 80 NY2d 474; Matter of Fay, 291 NY 198; People v. Tremaine, 281 NY 1.) II. The courts below correctly declined to decide the constitutionality of the Governor‘s line-item vetoes. (Matter of Peters v. New York City Hous. Auth., 307 NY 519; T.D. v. New York State Off. of Mental Health, 91 NY2d 860.) III. The Governor‘s line-item vetoes were constitutional. (People v. Tremaine, 252 NY 27; Bengzon v. Secretary of Justice of Philippine Is., 299 US 410.)
OPINION OF THE COURT
R.S. SMITH, J.
Since 1927, the New York Constitution has provided for executive budgeting. Under this system, the State‘s budget originates with the Governor, and he must submit to the Legislature
In these cases, the Governor and the Legislature accuse each other of overstepping limitations placed by the Constitution on their roles in enacting the budget. We resolve the dispute in the Governor‘s favor. We hold, in both of these cases, that the Legislature altered the Governor‘s appropriation bills in ways not permitted by the Constitution. In Pataki v New York State Assembly, we also hold that the Governor did not exceed constitutional limits on what his appropriation bills may contain.
Five members of this Court agree with these two conclusions, and with the reasoning that leads to the first of them. As to our second conclusion, two members of the majority have reservations about the analysis in the section of this opinion entitled “The Content of Appropriation Bills” (at 92-99), as explained in Judge Rosenblatt‘s concurring opinion.
I. Background: New York‘s Executive Budget System
Until 1927, all budget legislation, like other legislation, originated with the Legislature. The Governor‘s only power over budget legislation was the veto. He could veto any bill passed by the Legislature, and if any such bill contained “several items of appropriation” he could veto one or more of those items while approving the remainder of the bill (
In 1915, executive budgeting was proposed as a way to reform the planning and management of the State‘s finances. A report submitted by a committee to that year‘s Constitutional Convention argued that the Legislature was not the right body to prepare a budget. The Legislature, the report said, did not administer government departments, and therefore lacked both the knowledge about and the authority over those departments that was necessary to design a budget properly. Legislators were accountable to voters in their own districts, rather than to the State as a whole, and thus would prepare a budget by “compromise or bargain“—a process which “has become so common . . . as to be stigmatized by the terms ‘log rolling’ and ‘pork barrel‘” (Report of Comm on State Finances, Revenues and
“We cannot expect economy in the future unless some one man will have to lie awake nights to accomplish it. The only way to stop waste is for the people of the State to know exactly whose fault it is if waste occurs, or if the cost of government steadily rises without compensating increase in service rendered.
“So the proposed Constitution provides that the estimates of all administrative departments shall be first submitted to the Governor, and shall be revised by him. The responsibility for securing an economical and systematic plan for the annual budget of the State is thus laid squarely on his shoulders.” (Id.)
Stimson‘s 1915 proposal contained a provision saying: “The Legislature may not alter an appropriation bill submitted by the Governor except to strike out or reduce items therein.” (1 Unrevised Rec, 1915 NY Constitutional Convention, at 1135.) This limitation, Stimson argued, was essential to the preservation of an executive budget system. The proposal, he explained:
“provides that when the Governor introduces his budget that budget must be disposed of without addition. The Legislature can cut down, the Legislature can strike out but they must approach it from the standpoint of a critic and not from the standpoint of a rival constructor. The budget must be protected against its being wholly superseded by a new legislative budget and a resort to the same situation that we have now. Otherwise you would have nothing.” (2 Unrevised Rec, 1915 NY Constitutional Convention, at 1586.)
Thus the original purpose of the executive budgeting system was to change the roles of the Governor and the Legislature in
A proposed Constitution containing the executive budget provisions that Stimson favored was rejected by the voters in 1915. But efforts to reform budgeting continued, eventually with the support of Governor Alfred E. Smith. In 1926, the voters approved constitutional amendments similar to the 1915 executive budget proposals. These provisions took effect in 1927, and were carried forward with little change in the 1938 Constitution that is in force today.
In the process prescribed by the Constitution, the Governor receives estimates from the heads of departments of their financial needs (
“The legislature may not alter an appropriation bill submitted by the governor except to strike out or
reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose. . . . “Such an appropriation bill shall when passed by both houses be a law immediately without further action by the governor, except that . . . separate items added to the governor‘s bills by the legislature shall be subject to [the governor‘s line-item veto].”
The opening words of section 4 are taken verbatim from the proposal submitted to the voters, and defended by Stimson, in 1915. They accord to an “appropriation bill submitted by the governor” a special status; the Legislature may not “alter” it except in the ways specified. We have held that the no-alteration provision is “a limited grant of authority from the People to the Legislature to alter the budget proposed by the Governor, but only in specific instances” (New York State Bankers Assn., Inc. v. Wetzler, 81 NY2d 98, 104 [1993]). In other words, all the power the Legislature has to alter the Governor‘s appropriation bills stems from
The Constitution provides that, absent a message of necessity from the Governor, the Legislature may not consider “any other bill making an appropriation” until it has finally acted upon all the Governor‘s appropriation bills (
“No provision shall be embraced in any appropriation bill submitted by the governor or in such supplemental appropriation bill unless it relates specifically to some particular appropriation in the bill, and any such provision shall be limited in its operation to such appropriation.”
These constitutional provisions implement Stimson‘s vision of executive budgeting—with the Governor as “constructor” and the Legislature as “critic.” They do not, of course, leave the Legislature powerless. The Legislature can reduce or delete the Governor‘s appropriations and enact (subject to the Governor‘s veto) new appropriations of its own. It can pass legislation over the Governor‘s veto—as it has done in recent years with unprecedented frequency. Perhaps most important, the Legislature can—and almost invariably does—refuse to act on the budget pending negotiations with the Governor. All budgets within recent memory have been largely a product of such negotiations, often extremely protracted ones. The inefficiencies of New York‘s budgeting system are well known today, and much deplored; the word “gridlock” is often used. No one familiar with the process can believe that it is one in which the Governor is omnipotent, and the Legislature helpless.
Our decision today leaves all of the Legislature‘s constitutional prerogatives intact, but preserves the role of the Governor as the “constructor” of the State‘s budget.
II. Facts and Procedural History
One of the present lawsuits, Silver v Pataki, arises out of the budget submitted by the Governor to the Legislature in 1998; the other, Pataki v New York State Assembly, out of the budget submitted in 2001. The appropriations made in those years have expired, so that the present controversy appears to be moot, but all parties and all members of the Court agree that the importance of the issues warrants our ruling on them (see Matter of Hearst Corp. v. Clyne, 50 NY2d 707 [1980]).
A. Silver v Pataki
It is undisputed that the first step taken by each side to the dispute in 1998 was constitutional. The Governor submitted appropriation bills, as well as other legislation, to the Legislature; and the Legislature passed the appropriation bills without altering them, except to strike out or reduce particular items. The bills, as so modified, became law. But then the Legislature, by amending the Governor‘s other, nonappropriation budget bills, sought to change the appropriation legislation it had just enacted—not altering the amount of any appropriation, but altering the purposes for which, and the conditions upon which, the money could be spent.
The Governor claimed that the Legislature‘s subsequent actions altered his appropriation bills, in violation of
The Speaker of the Assembly brought suit against the Governor, seeking a declaratory judgment that the purported line-item vetoes were unconstitutional. The Senate later joined the case as a plaintiff. The Governor asserted, among other defenses, that “the items that were subject to the vetoes in question were unconstitutional and therefore void and unenforceable ab initio.” Supreme Court in substance upheld this defense, holding that the legislation the Governor objected to was invalid to begin with; Supreme Court therefore did not reach the question of whether the Governor‘s veto power was properly used. The Appellate Division affirmed. The Speaker and the Senate appealed as of right, pursuant to
B. Pataki v New York State Assembly
In 2001, in contrast to 1998, the first steps in the budget process were controversial. Certain of the bills submitted by the Governor as appropriation bills contained material which, according to the Legislature, did not belong in appropriation bills. For example, the Governor proposed to appropriate $8.3 billion for “general support for public schools for aid payable in the 2001-02 school year” and for “school-wide performance payments” (2001 NY Senate-Assembly Bill S 905, A 1305). The description of this appropriation in the bill contains 17 pages of
The 2001 appropriation bills also contained language changing the method previously established by the Public Health Law for computing the Medicaid rates payable to residential health care facilities (2001 NY Senate-Assembly Bill S 904, A 1304); and appropriating funds for the State Museum and State Library to a proposed Office of Cultural Resources, though these entities were, by statute, under the control of the Department of Education and Board of Regents (2001 NY Senate-Assembly Bill S 905, A 1305). These provisions and many others, in the view of the Legislature, could not properly be included in “appropriation bills” that were protected from alteration by
The Legislature purported to delete from the Governor‘s appropriation bills some of the language it considered unconstitutional. In other cases, the Legislature struck whole items of appropriation (as it indisputably had a right to do), and then enacted its own appropriation bills, appropriating identical amounts of money for similar purposes, but subject to different conditions and restrictions. In doing this, the Legislature purported to act pursuant to
The Governor, though contending that the 37 single-purpose bills and certain of the other bills passed by the Legislature were unconstitutional, signed them all. He then immediately began this action against the Assembly and the Senate. The Governor sought a declaration that the bills in question were unconstitutional; the Assembly and Senate counterclaimed seeking, among other things, a declaration that the provisions in the Governor‘s appropriation bills to which the Legislature objected
III. Discussion
A. Preliminary Issues
In Silver v. Pataki (96 NY2d 532 [2001]), we decided that Speaker Silver had capacity and standing, as a member of the Assembly, to bring the case relating to the 1998 budget. The Governor raises no other issue that would bar us from reaching the merits of that case. In Pataki v New York State Assembly, however, the Assembly argues that: (1) the Governor, having signed the legislation he complains of, lacks standing to bring this case; and (2) the Governor‘s suit is barred by the Speech or Debate Clause of the State Constitution (
Both of these defenses, assuming them to be valid, may be waived (see
B. The Merits
1. Silver v Pataki
It is undisputed that the effect of the legislation at issue in Silver v Pataki was to amend language originally proposed by the Governor in his 1998 appropriation bills. The Governor contends that this violated the plain terms of
“The legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein. . . .”
The Legislature contends that it did not violate the no-alteration clause because: (1) it did not amend the appropriation bills before passing them, but passed them unchanged and then amended them by subsequent legislation; and (2) the amendments changed only the language describing the purposes of, and the conditions on, the appropriations, not the amounts appropriated. We find both of the Legislature‘s contentions to be untenable.
If the no-alteration clause of
Nor are we persuaded by the Legislature‘s argument that subsequent legislation may amend the words of appropriation bills, so long as it leaves the dollar amounts untouched. In the first place, the text of
Furthermore, the theory that the Legislature can rewrite the text of the Governor‘s appropriation bills is inconsistent with the basic idea of executive budgeting. The author of a budget must make the initial decision not only on how much money is to be spent, but on what the money is to be spent for. The Legislature acknowledges that in a broad sense this is true; counsel for the Assembly admitted at oral argument that, if the
We doubt that a meaningful line between broad and narrow changes could ever be drawn. But more fundamentally, to permit the Legislature to rewrite the details of the Governor‘s budget, as embodied in his appropriation bills, is inconsistent with the aims of the executive budget system. It is the Governor, not the Legislature, who was expected by the framers of this constitutional provision to “lie awake nights” to produce “an economical and systematic plan for the annual budget of the State” (see, supra at 82). That “systematic plan” must be based on the Governor‘s judgment not only on how much money to spend, but on which specific expenditures are prudent, and what preconditions should be imposed on them. The Governor will be able to perform his constitutional role only if the no-alteration clause of
The Legislature‘s argument is contrary not only to the basic theory of executive budgeting, but also to our decision in New York State Bankers Assn. v. Wetzler (81 NY2d 98 [1993]). In Bankers, the Legislature had added to an appropriation bill a provision authorizing the Department of Taxation and Finance to charge banks a fee for the cost of conducting bank audits. The provision did not disturb the amount the Governor had allocated to cover the audits. Yet we concluded that the Legislature‘s addition to the Governor‘s appropriation violated the no-alteration clause. And even before Bankers, opinions by Attorneys General Lefkowitz and Abrams contradicted the idea that the Legislature may revise language included by the Governor in an appropriation bill (1978 Ops Atty Gen 76; 1982 Ops Atty Gen No. 82-F5).
If the Legislature disagrees with the Governor‘s spending proposals, it is free, as the no-alteration clause provides, to reduce or eliminate them; it is also free to refuse to act on the Governor‘s proposed legislation at all, thus forcing him to negotiate. But it cannot adopt a budget that substitutes its spending proposals for the Governor‘s. If it could do so, executive budgeting would no longer exist.
2. Pataki v New York State Assembly
In defending its actions with respect to the 2001 budget, the Legislature makes essentially two arguments. First, it repeats, in a slightly different context, the argument we have just rejected—that the Legislature may, without violating the no-alteration clause, enact subsequent legislation (mostly taking the form, in this case, of single-purpose bills) that effectively amends appropriation legislation proposed by the Governor in ways not authorized by the no-alteration clause. Secondly, the Legislature argues that the bills proposed as “appropriation bills” by the Governor, were, in significant part, not appropriation bills within the meaning of the Constitution and were thus not protected by the no-alteration clause. We reject both arguments.
(a) The Use of Single-Purpose Bills as Substitutes for Appropriation Bills
What we said in our discussion of Silver v Pataki largely disposes of the Legislature‘s first argument, though the technique the Legislature used in 2001 was, in most instances, different from the one used in 1998. Whereas in 1998 the Legislature passed the Governor‘s appropriation bills and then tried to alter them by amending other budget legislation, in 2001 it more frequently struck out items from the Governor‘s appropriation bills and then replaced them by single-purpose bills, which it purported to enact under the authority given it by
Indeed, we pointed out 65 years ago that using single-purpose legislation to substitute for items deleted from the Governor‘s appropriation bills would violate the Constitution. In the second of two cases named People v. Tremaine (281 NY 1 [1939] [Tre-
“[The Legislature] may . . . add items of appropriation, provided such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose. The items thus proposed by the Legislature are to be additions, not merely substitutions. These words have been carefully chosen. The added items must be for something other than the items stricken out.” (Emphasis added.)
There may be cases in which it is difficult to say whether a single-purpose bill passed by the Legislature is an “addition” to, rather than a “substitution” for, a deleted item. We do not suggest, as the dissent implies, that every bill originated in the Legislature that touches on the same subject matter as an appropriation is unconstitutional. Of course, the Legislature remains free to legislate on such subjects as the way in which prisons should be operated (see dissenting op at 119-120). The question is simply whether the challenged legislation does or does not alter an appropriation bill submitted by the Governor.
In this case the question is not difficult. It is clear from the Legislature‘s own description of the bills it defends that they are substitutes for items in the Governor‘s appropriation bills. The Assembly argues that these bills “did not have the same purpose as the Governor‘s proposals,” but it bases this argument on the assertion that its bills “modified the terms and conditions of the Governor‘s appropriations” and in some cases “directed the funding to different agencies or institutions.” In other words, the appropriation bills were altered.
It is undisputed that each of the single-purpose bills at issue had its counterpart in the Governor‘s appropriation bills, and that the Legislature, in each case, replaced provisions it did not like with provisions it preferred. The no-alteration clause does not permit the Legislature to treat the Governor‘s appropriation bills in this manner.
(b) The Content of Appropriation Bills
The Legislature‘s second argument—that what the Governor called “appropriation bills” in 2001 were, in significant part, not appropriation bills within the meaning of the Constitution—presents, at least in theory, a troublesome issue, for we recognize that the Governor‘s power to originate appropriation
The Governor‘s position in this litigation is that the only limit on the content of an appropriation bill submitted by the Governor is the anti-rider clause of
Thus we reject the sweeping proposition, attributed to us by the dissent, “that what the Governor sees fit to include in an appropriation bill is properly placed there” (dissenting op at 115). Some matters are not “properly placed there.” We also reject, however, the dissent‘s suggestion that no “public policy matters” (id. at 105) or “substantive or programmatic” legislation (id. at 114 n 8) properly belong in an appropriation bill. The line between “policy” and “appropriations” is not just thin, but essentially nonexistent: every dollar the State spends is spent on substance, and the decision of how much to spend and for what purpose is a policy decision. Thus all appropriations are substantive, and all appropriations make policy. It is true that there can be substantive legislation that does not contain appropriations—as demonstrated by the cases from other states, cited by the dissent (at 112-113), in which nonappropriation legislation was held not to be subject to a line-item veto. But the converse is not true—there cannot be a “nonsubstantive” appropriation bill.
The dissent admits that the line between appropriations and policy is “difficult to fix” (id. at 111). The dissent therefore abandons, if we read it correctly, the idea of judicially-imposed limits on “what the Governor can do in an appropriation bill,” and addresses instead “what the Legislature can do in response” (id.). The dissent‘s answer seems to be that the Legislature can do anything it wants to the language of an appropriation bill, as long as it does so by separate legislation, rather than by amending the appropriation bill itself. According to the dissent, the 1929 Legislature could have, after passing Governor Roosevelt‘s appropriation for an investigation of securities sales, passed other legislation conditioning the expenditure as the Legislature saw fit. Or it could have stricken the proposed appropriation and passed single-purpose legislation redirecting the funds to an investigation of bribery in municipal contracts, or any other purpose the Legislature liked—and it could have treated every one of Governor Roosevelt‘s other proposed appropriations in a similar fashion. We reject the dissent‘s argument for the reasons explained in previous sections of this opinion: to accept it would be to countenance the effective abolition of executive budgeting.
While we do not agree with the dissent that it is wrong to put “substantive” matter into an appropriation bill, we acknowledge, as we have said, that a Governor should not put into such a bill essentially nonfiscal or nonbudgetary legislation—measures like the hypothetical ones suggested at pages 92-93 of this opinion. We do not find it necessary to answer in this case the question of what is to be done when a Governor does include such unsuitable material; but we will try to advance understanding of the question by exploring it briefly.
The Governor argues, in substance, that no judicial remedy should be available when an appropriation bill contains mate-
The Governor suggests that the problem of inappropriate content in an appropriation bill is analogous to the problems of itemization and transfer of appropriations—problems with which we have struggled in previous cases, and which we eventually left to be resolved in the political process. In the first case entitled People v Tremaine (252 NY 27 [1929] [Tremaine I]), the Governor submitted a budget bill containing lump-sum, rather than itemized, appropriations, with a provision stating that he alone could later decide how the lump sums should be broken down or “segregated.” The Legislature struck out the items to which the Governor had attached such provisions, and restated them with clauses calling for the participation of legislators in the segregation process. We disposed of the case on other grounds, but remarked in dictum that the Legislature appeared to have violated the no-alteration clause of what is now
“If the Legislature may not add segregation provisions to a budget bill proposed by the Governor without altering the appropriation bill, . . . it would necessarily follow that the Governor ought not to insert such provisions in his bill. He may not insist that the Legislature accept his propositions in regard to segregations without amendment, while denying to it the power to alter them. The alternative would be the striking out the items of appropriation thus qualified in toto and a possible deadlock over details on a political question outside the field of judicial review.” (Id. at 50.)
Thus, in Tremaine I we said that the Governor “ought not to” put “segregation provisions” into a lump-sum appropriation bill, but also suggested that his doing so might generate “a political question outside the field of judicial review.”
“[T]he degree of itemization necessary in a particular budget is whatever degree of itemization is necessary for the Legislature to effectively review that budget. This is a decision which is best left to the Legislature, for it is not something which can be accurately delineated by a court. It is, rather, a function of the political process, and that interplay between the various elected representatives of the people which was certainly envisioned by the draftsmen of the Constitution. Should the Legislature determine that a particular budget is so lacking in specificity as to preclude meaningful review, then it will be the duty of that Legislature to refuse to approve such a budget. If, however, as here, the Legislature is satisfied with the budget as submitted by the Governor, then it is not for the courts to intervene. . . . Should a Legislature fail in its responsibility to requiré a sufficiently itemized budget, the remedy lies not in the courtroom, but in the voting booth.” (Id. at 550-551.)
We reached a similar conclusion in Saxton as to the extent to which a Governor’s appropriation bill could authorize transfers of appropriation within programs or departments (id.). Yet we also disavowed in Saxton any suggestion that “the budgetary process is per se always beyond the realm of judicial consideration.” (Id. at 551.) We said: “The courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two branches of the government.” (Id.)
When a case comes to us in which it appears that a Governor has attempted to use appropriation bills for essentially nonbudgetary purposes, we may have to decide whether to enforce limits on the Governor’s power in designing “appropriation bills” or to leave that issue, like the issues of itemization and transfer, to the political process. We conclude, however, that we confront no such problem here, for there is nothing in the appropriation bills before us that is essentially nonbudgetary. All of the appropriation bills that the Legislature challenges are, on their face, true fiscal measures, designed to allocate the State’s resources in the way the Governor thinks most productive and efficient; none of them appears to be a device for achieving collateral ends under the guise of budgeting.
This is well illustrated by the bill the Legislature most vigorously attacks—the school funding proposal (2001 NY Senate-Assembly Bill S 905, A 1305). The purpose and effect of this proposed item of appropriation is to determine how much of the State’s money goes to each school district—almost as purely budgetary a question as can be imagined. Whether to include the allocation of funds to school districts in an appropriation bill or in other budget legislation is a political choice; nothing in the Constitution forbids the choice of an appropriation bill.
The Legislature, and the dissent, in substance offer three reasons why the Governor’s 2001 school funding proposal does not belong in an appropriation bill. First, they point out—correctly—that the bill does not look like a typical appropriation bill; rather than briefly identifying recipients of funds and specifying the dollars to be received by each, it contains many pages of narrative with no numbers at all. The narrative, however, is merely a very complex formula, or series of formulas, for distributing the money, and a rule prohibiting an appropria-
Secondly, the Legislature and the dissent point out that, until 2001, the details of distribution of school aid had usually not been the subject of appropriation bills, but of other legislation submitted with the Governor’s budget. We decline, however, to adopt a narrow historical test of what is an “appropriation bill”—to require, in effect, that the Governor may never use an appropriation bill to deal with subject matters addressed by other types of legislation in the past. Nothing in the Constitution says or implies that, once it becomes customary to deal with a particular subject either in appropriation bills or in other legislation, the custom must be immutable. On the contrary, it was an important part of the purpose of executive budgeting to enable budgets to be adjusted to the changing needs of an increasingly complex society. Also, it would involve courts in endless difficulties if they had to determine, every time the validity of an appropriation bill was challenged, whether the particular subject of the bill was being dealt with in accordance with historical practice.
Thirdly, the Legislature notes, and the dissent emphasizes heavily, that the Governor’s 2001 school funding proposal altered existing statutory provisions for the distribution of school aid. But the Legislature does not even argue, and could not successfully argue, that it is forbidden for an appropriation bill—whose effect is limited to two years by the Constitution (
In short, we conclude that the 2001 school funding proposal raises none of the concerns that might be raised by the insertion of essentially nonbudgetary legislation into an appropriation bill. The Governor’s choice to use an appropriation bill, rather than other budget legislation, as the means of distributing school aid may have been politically controversial, but it was clearly within the authority given him by the Constitution.
Nor do we find that any of the other proposed measures that the Legislature challenges in this case are an attempt to abuse the Governor’s power over appropriation bills. The Legislature contends that the Governor abused his power by using appropriation bills to transfer the State Library and State Museum to the control of a newly created Office of Cultural Resources; this contention, however, seems to be based on a misreading of the legislation the Governor submitted. The Governor proposed other budget legislation, not appropriation bills, to create the new agency and to transfer the Library and Museum to it. This other legislation was rejected by the Legislature (see 2001 NY Senate-Assembly Bill S 1145-B, A 1997-B). The Governor’s appropriation bills did include provisions for funds to the Office of Cultural Resources for the purpose of operating the State Library and State Museum, but that shows only that the Governor was proceeding on the assumption—which proved ill-founded—that legislation creating that entity would be passed.
We therefore leave for another day the question of what judicially enforceable limits, if any, beyond the anti-rider clause of article VII, § 6 the Constitution imposes on the content of appropriation bills.
IV. Conclusion
Accordingly, in each case, the order of the Appellate Division should be affirmed without costs.
ROSENBLATT, J. (concurring). I join Judge Robert Smith’s
The Governor argues that two words in
The clause was designed to preserve the separation of powers, a concept that goes back to our first State Constitution in 1777—written a decade before the United States Constitution.2 In its first such effort, our fledgling State provided that the legislative power is vested in the Senate and Assembly.3 That provision has been with us throughout our constitutional history (see
Given this background, the plurality writing does not go far enough to describe where the line exists so as to protect the Legislature’s lawmaking preeminence. It is not enough to point
The plurality then says that the proposals “seem[ ]” to go beyond the legitimate purpose of an appropriation bill (plurality op at 93). In my view, they do, and it is essential to say so. Anything short of that leaves the parties—and here they are those who run the government—with not an ounce of guidance.
Our colleagues in the plurality doubt that a line can be drawn delineating gubernatorial and legislative powers. We are, however, in the business of drawing lines; that is what we do in our decisional law. I recognize that it is not normally our job to give guidance to the other two branches. This, however, is no ordinary lawsuit: not one, but both branches have gone out of their way to demand an answer. We would, I think, be failing in our duty if we punted and simply announced that if and when a case ever arises in which the executive branch goes too far, perhaps we will let you know.
That approach disserves the Legislature and does not give the Governor a clue as to whether he is trespassing on legislative turf. Saying only that we cannot draw a line but that, in effect, “I know it when I see it”4 is an unacceptable response. A proper resolution of these lawsuits requires a test, consisting of a number of factors, no single one of which is conclusive, to determine when an appropriation becomes unconstitutionally legislative. To begin with, anything that is more than incidentally legislative should not appear in an appropriation bill, as it impermissibly trenches on the Legislature’s role. The factors we consider in deciding whether an appropriation is impermissibly legislative include the effect on substantive law, the durational impact of the provision, and the history and custom of the budgetary process.
History and custom also count in evaluating whether a Governor’s budget bill exceeds the scope of executive budgeting. The farther a Governor departs from the pattern set by prior executives, the more resulting budget actions become increasingly suspect. I agree that customary usage does not establish an immutable model of appropriation (see plurality op at 98). At the same time, it would be wrong to ignore more than 70 years of executive budgets that basically consist of line items.
The more an executive budget strays from the familiar line-item format, the more likely it is to be unauthorized, nonbudgetary legislation. As an item exceeds a simple identification of a sum of money along with a brief statement of purpose and a recipient, it takes on a more legislative character. Although the degree of specificity the Governor uses in describing an appropriation is within executive discretion (see People v Tremaine, 281 NY 1 [1939]), when the specifics transform an appropriation into proposals for programs, they poach on powers reserved for the Legislature.
In addition, the more a provision affects the structure or organization of government, the more it it intrudes on the Legislature’s realm. The executive budget amendment contemplates funding—but not organizing or reorganizing—state programs, agencies and departments through the Governor’s appropriation bills.
The durational consequences of a provision should also be taken into account. As budget provisions begin to cast shadows beyond the two-year budget cycle, they look more like nonbudget legislation. The longer a budget item’s potential lifespan, the more legislative is its nature. Similarly, the more a provision’s effects tend to survive the budget cycle, the more it usurps the legislative function.
Viewed in light of these factors, the Governor’s proposals relating to the State Museum and State Library appear to push the edge of the envelope because of their effect on the structure and organization of government agencies. I am satisfied, however, with Judge Smith’s explanation that the Governor did
Judge Smith’s hypotheticals, however, would run afoul of the constitutional limits on the Governor’s appropriation power. Although the hypothetical provisions arguably “relate [ ] specifically” to the appropriation, all three appreciably alter existing substantive law that is not inherently budgetary and would, therefore, transgress constitutional limits. While there are financial implications of retirement ages,
I readily concede that this or any other test is necessarily imperfect. To my mind, however, it is better than no test at all. We have an obligation to reveal the considerations involved in evaluating the challenged provisions and reaching our conclusion. Determining the constitutional scope of the legislative and executive powers is, after all, a basic function of the judicial branch.
Chief Judge KAYE (dissenting). At the heart of both cases before us, arising in the context of the State’s budget, is the line between the Executive and the Legislature with respect to lawmaking.
In 1927, New York amended its Constitution to adopt executive budgeting. In
Legislature may add items of appropriation provided they are stated separately and distinctly from the original items and refer each to a single object or purpose (see
For 70 or more years our constitutional budgeting scheme has operated with more or less success2—but without a major showdown in the courts—until, in 1998 and again in 2001, the two sides for the first time reached an impasse precipitating the present litigation. What happened?
To my mind the problem is exemplified by two items of appropriation included in the record before us. The first is contained in Governor Franklin Roosevelt’s 1929 appropriation bill, offered just after passage of the Executive Budgeting Amendment. The item reads in full: “Investigation of Sale of Securities and Unlawful Corporative Activities, Services and expenses—$210,000.00.” My second example, a stark contrast, is contained in Governor Pataki’s 2001 appropriation bill: a so-called item of appropriation in the form of 17 closely-printed pages altering
Two questions are at the core of this appeal. Does the authority to propose the budget permit the Governor to rewrite the substantive law of the state as an item of appropriation? Or perhaps even more to the point, if the Governor proposes new substantive law in a budget bill—either an appropriation bill or a nonappropriation bill—is the Legislature then prohibited by the no-alteration provision of
While answering these questions in the affirmative, my Colleagues themselves recognize that the issue is “troublesome”
Because I conclude that the Governor has overstepped the line that separates his budget-making responsibility from the Legislature’s lawmaking responsibility, setting an unacceptable model for the future, I dissent.3
I. The History and Intent of Executive Budgeting
Prior to 1915, the State operated under a legislative budget system in which—as with most legislation—the Legislature proposed bills, in this case appropriation bills, and presented them to the Governor for his signature or veto. These bills were based on budgetary estimates provided to the Legislature by the various executive departments. The Legislature, however, had neither the staff nor the resources to exercise appropriate oversight in scaling back departmental wish lists. Instead, departments submitted their estimated expenditures without any review by an authority outside the department, resulting in
In reaction, a reform movement arose to adopt an executive budgeting process. The scheme is a simple one. The Governor—as an elected official answerable to the entire state—would in the first instance have responsibility for collecting departmental estimates and proposing appropriations. Free as he4 was from the limitations faced by the Legislature, it was thought that the Governor, who had direct supervisory control over administrative departments, could better determine whether the estimates proffered by his department heads were reasonable, and could send his officers back to the drawing board to revise their estimates if he found them overblown. In this way, a realistic and comprehensive assessment of the financial needs of government could be had. Then, once proposed as a package, the budget would be reviewed by the Legislature, which would be restricted in its ability to increase spending beyond the levels proposed by the Executive after his careful deliberation.
Specifically, the Legislature could reduce spending for a particular item of appropriation, or forgo funding of the item altogether, but it could not increase the amount of money for any given item in the Governor’s appropriation bills. Since the spending caps had already been approved by the Governor who proposed them, the appropriations would become law immediately upon passage by the Legislature. Further, if the Legislature sought to fund additional programs or services not provided for in the Governor’s budget, it could add new items of appropriation to the appropriation bills, each of which—not having already been approved by the Governor—would be subject to his line-item veto.
Similarly, if the Legislature thought it prudent to increase funding for an item submitted by the Governor beyond his
Executive budgeting was not, however, meant to transfer significant lawmaking authority from the Legislature to the Executive. “[T]he separation of powers ‘requires that the Legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies’ ” (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 821-822 [2003], quoting Bourquin v Cuomo, 85 NY2d 781, 784 [1995]). Rather, the scheme of executive budgeting was aimed at centralizing in one person responsibility for framing out the budget:
“The executive budget does not deprive the Legislature of any of its prerogatives. . . . It simply makes the Governor who represents the whole State and not a single assembly or senate district, responsible in the first instance for collecting, consolidating, reviewing and revising the estimates of the several departments of government and also for presenting to the Legislature a complete plan of expenditures and revenues—a plan which in his judgment will best meet the needs of the administration of which he is the head. . . .
“The executive budget would not add to the Governor’s power over finances” (Report of Reconstruction Commn to Governor Alfred E. Smith on Retrenchment and Reorganization in State Government, at 316-317 [Oct. 10, 1919]).
Executive budgeting was not meant to give the Governor power to require that his fiscal plan be adopted; to deprive the Legislature of its ability to initiate legislation; or to reallocate to the Executive responsibility for legislative—as opposed to budgetary—policymaking:
“Nor is there the slightest force to the claim that the proposed system would give undue power to the Governor. It would add not one iota to the power that he now possesses through the veto of items in the appropriation bills. Whereas now that power is subject to no review and thus may be used as an instrument of reward or punishment after the legislative session is over, the proposed system would deprive him of his veto as to budget items and would thus compel him to use his influence in advance, in the open, under the fire of legislative discussion and the scrutiny of the entire State. It would thus be the Legislature which would have the final word” (Report of Comm on State Finances, Revenues and Expenditures, Relative to a Budget System for the State, State of New York in Convention Doc No. 32, at 21 [Aug. 4, 1915]).
Plainly, the idea behind executive budgeting was simply accountability for state expenditures, missing under the old system:
“[T]he forces of reaction which have opposed this important reform rest their objections on an entirely false foundation. We constantly hear in argument against the executive budget, that it will deprive the direct representatives of the people of a proper control over the purse strings of the State. This argument is not based on fact. The executive budget does not in the slightest degree decrease the power of the Legislature. It provides only for a more responsible method for the exercise of that power. There is nothing new or revolutionary about a proposal placing upon the Executive himself the duty in the first instance of certifying to the Legislature the amount required for the fixed and definite expenses of maintenance of the various departments of the government. There is no reason that I can see why there should not be put upon the Executive the further responsibility of explaining his proposals to the Legislature in detail. There is also no reason why the Legislature should make additions to these sums or indulge in new activities until provision has first been made for the absolutely necessary expenses of government. . . .
“Opposition to the executive budget upon the the-
ory that it lessens the power of the Legislature is nothing but misrepresentation for political purposes. Every proposal for its establishment, so far made, has left the Legislature absolutely free to pass any appropriations it will and to increase or decrease any appropriations it may desire to, after provision has been made for the support of government as comprehended in the bill proposed and supported by the governor” (1925 Ann Message of Governor Alfred E. Smith, at 75-76).
The Court ignores this history when it concludes that executive budgeting effected a transfer to the Governor of lawmaking power over the terms and conditions of spending, such that the Legislature is prohibited from amending the Governor’s policy-laden budget bills—which is the practical effect of affirmance here.5
Contrary to the Court’s statement, I do not ignore that executive budgeting modified the separation of powers “to some degree” (opinion at 83), but recognize that “except as restrained by the Constitution, the legislative power is untrammeled and supreme, and . . . a constitutional provision which withdraws from the cognizance of the legislature a particular subject, or which qualifies or regulates the exercise of legislative power in respect to a particular incident of that subject, leaves all other matters and incidents under its control” (Matter of Thirty-Fourth St. R.R. Co., 102 NY 343, 350 [1886]).
II. The Constitutional Scheme
The Executive Budget Amendment is currently codified in
“submit to the legislature a budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year and all moneys and revenues estimated to be available therefor, together with an explanation of the basis of such estimates and recommendations as to proposed legislation, if any, which the governor may
deem necessary to provide moneys and revenues sufficient to meet such proposed expenditures. It shall also contain such other recommendations and information as the governor may deem proper and such additional information as may be required by law” ( NY Const, art VII, § 2 ).
By contrast, estimates of the financial needs of the Legislature and the Judiciary must, after being transmitted by those branches to the Governor, be included in his executive budget without revision (see
Critical to this appeal, “[t]he legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose” (
By contrast, the Governor retains the right to veto any portions of the legislation that he has not previously approved. Thus, appropriations for the Legislature and Judiciary—which must be submitted by the Governor without revision and thus without his prior approval (see
This constitutional scheme thus comprises a careful system of checks and balances in which the Governor has initial legislative authority over state finances, and in which the Legislature, while it can always make the determination to spend less, is forbidden from spending more in the Governor’s appropriation bills. Because the Governor has taken on the legislative function in this regard and, by definition, pre-approved of the budget caps contained in legislation he has proposed, he cannot veto
My Colleagues—in an endeavor to answer the question of what the Governor may properly include in an appropriation bill—are concerned about the viability of fixing the line between “items of appropriation” and “proposed legislation.” I agree that the line is difficult to fix. Given that, the better question may well be not what the Governor can do in an appropriation bill, but what the Legislature can do in response.
The Constitution restricts the Legislature’s power to alter the Governor’s proposed appropriation bills, but not to alter other proposed legislation. This distinction makes sense because it is only an appropriation bill that becomes law upon passage—without further review by the Governor. All other proposed legislation is subject to the Governor’s veto and thus need not be insulated from the Legislature’s power to amend in order to ensure that no bill becomes law without the participation of both branches.
The Constitution distinguishes between items of appropriation—properly included in an appropriation bill—and other legislation, which ought to be proposed elsewhere. An appropriation bill as defined by section 4 is a bill “containing all the proposed appropriations and reappropriations included in the budget” within the meaning of section 3. By contrast, a nonappropriation bill contains the other “proposed legislation, if any, recommended” in the executive budget (
In short, the Governor may propose what he likes, although the Constitution clearly contemplates that those of his proposals that do not constitute items of appropriation of money should go elsewhere than in an appropriation bill. “If the Legislature may not add segregation provisions to a budget [i.e.,
“Items of appropriation” are provisions that “show what money is to be expended, and for what purpose” (People v Tremaine, 281 NY 1, 5 [1939] [Tremaine II]). Other subjects do not belong in an appropriation bill, as evidenced by the Governor’s own submission of “nonappropriation bills” as part of his budget. In general, nonappropriation bills “contain programmatic provisions and commonly include sources, schedules and sub-allocations for funding provided by appropriation bills, along with provisions authorizing the disbursement of certain budgeted funds pursuant to subsequent legislative enactment” (Silver I, 96 NY2d at 535 n 1). Put differently, such bills “detail[ ] the utilization of [already] appropriated funds or propose[ ] changes in the operation of certain programs” (id. at 535). Further, tax legislation, specifically delineated in
Other state courts explaining the distinction between items of appropriation and other provisions—the very issue before us—have reached similar conclusions: “It can be said then that the term ‘item of appropriation’ contemplates the setting aside or dedicating of funds for a specified purpose. This is to be distinguished from language which qualifies or directs the use of appropriated funds . . .” (Jessen Assoc., Inc. v Bullock, 531 SW2d 593, 599 [Tex 1975]). “An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It is something different from a provision or condition” (Commonwealth v Dodson, 176 Va 281, 296, 11 SE2d 120, 127 [1940]). Similarly, programmatic provisions that merely affect the allocation of appropriated funds do not constitute items of appropriation, because they do not increase the amount of state expenditures. Such a provision
“does not set aside money for the payment of any claim and makes no appropriation from the public treasury, nor does it add any additional amount to funds already provided for. Its effect is substantive. Like thousands of other statutes, it directs that a department of government act in a particular manner with regard to certain matters. Although as is common with countless other measures, the direction contained therein will require the expenditure of funds from the treasury, this does not transform a substantive measure to an item of appropriation” (Harbor v Deukmejian, 43 Cal 3d 1078, 1089-1090, 742 P2d 1290, 1296 [1987]).
Simply put, “state courts have generally . . . excluded from the definition of appropriation authorizations and other substantive legislation that create spending programs but do not actually appropriate funds” (Richard Briffault, The Item Veto in State Courts, 66 Temp L Rev 1171, 1201 [1993]). For an “item of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law which happens to be put into an appropriation bill” (Bengzon v Secretary of Justice of Philippine Is., 299 US 410, 414-415 [1937]).
III. Distortion of the Constitutional Scheme
My Colleagues conclude not only that the Governor may propose changes to substantive law in connection with his budget, but also that the Legislature is forbidden from altering such proposals by any means—either directly or indirectly. Thus, even those policymaking provisions placed in a nonappropriation bill but relating to a proposed appropriation—effectively, any subject properly included in a budget bill—are held unalterable under
The Governor contends that any programmatic policy conditions he attaches to an appropriation are simply more specific identification of the item for which he appropriates money. If this is so, the Legislature—limited in its authority to alter appropriation bills other than by reducing or striking items—must either accept the conditions imposed by the Governor or refuse to fund the program or service to which it is attached, however essential or desirable. According to the Governor, the Constitution limits him only insofar as the policy proposed must relate to a particular appropriation in the bill and “be limited in its operation” to that appropriation (
That is virtually no limitation at all.8 Nearly everything in government requires funding. And since the degree of budgetary itemization is beyond review, the Governor can always broaden the scope of his proposed appropriations to the point where a generally applicable policy condition would “be limited in its operation” to a particular appropriation—as I believe happened here. For example, as conceded at oral argument, the Governor could not, as part of an appropriation for 500 police cars, require in an appropriation bill that every police car in the state have bulletproof glass, but could impose such a requirement attached to an appropriation for police departments. Further, as also conceded, the Governor could under his theory—in order to save money—suspend worker safety laws or the mini-8
My Colleagues recognize that this is in theory “troublesome” (opinion at 92) but nonetheless hold that what the Governor sees fit to include in an appropriation bill is properly placed there and incapable of amendment by the Legislature. Although the plurality opines that it may be “possible” to write legislation that does not belong in an appropriation bill (opinion at 93), it gives no guidance as to when such limits will have been reached, noting only that no such transgression occurred here and that, even if one were to occur in the future, the courts might in any event be precluded from resolving the political question thereby presented (see id. at 97).
But I cannot, for example, agree that the Governor may, in the course of proposing his annual appropriations for public schools, include in his bill—as he did for the first time in 2001—17 pages of substantive revisions to
I agree that “[t]here could be no objection on constitutional grounds if the bill, instead of reciting the formula, named every school district in the state and specified the sum that would go to each—in other words, if the authors of the bill had applied the formula themselves and written the result into proposed legislation” (opinion at 98). But what my Colleagues fail to recognize is that, in doing so, the Governor would be required to apply the formula codified in
Because choices pertaining to the statewide allocation of resources among school districts involve policy determinations concerning the relative importance of, for example, special education; gifted and talented programs; employment preparation; summer school programs; success at class-size reduction; and support services for troubled and disabled children, these choices have until 2001 been understood as fundamentally legislative. Indeed, school funding has been among the most intensely negotiated issues (see e.g. H. Carl McCall, An Agenda for Equitable and Cost-Effective School Finance Reform, at 31 [Oct. 1996] [“School aid is most often one of the last issues to be resolved in the budget negotiations”]; Too Far on Bargaining, Rochester Democrat and Chronicle, Dec. 23, 2002, at 8A [“New York’s governor . . . and state lawmakers traditionally prefer to glide through the legislative session without taking up the explosive and nearly intractable problem of public-school funding and the formula that supposedly drives the money train”]).10
Nor can I agree with the Court’s conclusion regarding the Governor’s 2001 appropriation for the State Museum and State Library, which proposed moving the Museum and Library from the Department of Education to a nonexistent “Office of Cultural Resources”—effectively modifying existing
As we have recently made clear, the “choice of which agency shall regulate an activity can be as fundamental a policy decision as choosing the substance of those regulations” (Saratoga, 100 NY2d at 823 [emphasis in original]). The Governor contends that, because he proposed an appropriation of money for the State Museum and Library, conditioned on their transfer to the new agency as proposed in his nonappropriation bill, the Legislature was limited to either accepting his conditions, or defunding the Museum and Library altogether.
My Colleagues deny any significance to the Governor’s inclusion in his appropriation bill of proposed funds for the operation of these institutions within the new agency on the ground that the Governor’s assumption that legislation creating the agency would be passed “proved ill-founded” (opinion at 99). If by this they mean that the Legislature remained free—as in my view it did—to appropriate money for the State Museum and Library but within the Education Department, I certainly agree. But I cannot reconcile this conclusion with the reasoning underlying the remainder of the writing. For if the Legislature is foreclosed from enacting single-purpose appropriations for a purpose similar to a gubernatorial proposal—particularly a proposal that has been stricken or rejected—as well as from amending the Governor’s appropriations indirectly or adopting conditions different from those he has proposed, how could the Legislature—having rejected the programmatic conditions attached to the appropriation in the nonappropriation bill—reauthorize the Museum and Library?
The Governor’s claim that the intent of the Executive Budget Amendment was to grant him authority to change the substantive laws of the State is unsupportable.
In 1927, after the dangers of legislative budgeting had been identified and debated, the Governor was for the first time given the power to propose legislation directly—but only in appropriation bills. To be sure, the Governor could recommend other legislation in his executive budget, but the power to actually introduce bills obliging action into both houses of the Legislature—a power he has in no other context than the budget—was limited to appropriation bills. Only in 1938 was the predecessor to section 3 amended to give the Governor the additional authority to introduce other “proposed legislation” recommended in
Thus, my Colleagues’ conclusion that the 1915 and 1927 framers of executive budgeting intended to grant the Governor broad power to make legislative policy beyond mere fiscal policy, or to propose—and prevent alteration of—changes to the Consolidated Laws of the state, is unfounded and inconsistent with the constitutional budgeting scheme adopted by the framers.
Under the Constitution, the Legislature is entitled to respond to the Governor’s policy proposals in any of three ways. First, as we explained in Tremaine I, a condition placed on the expenditure of funds is itself “an item or particular, distinct from the other items of the bill, although not an item of appropriation” (252 NY at 50). As such, it is subject to striking in an appropriation bill under section 4.11
Second, the Legislature may amend a nonappropriation bill, either by altering policy conditions proposed in the Governor’s appropriation bill, or by proposing new conditions altogether.12 Contrary to the conclusion of my Colleagues (see opinion at 89-90),
nothing in section 4 “prevents the Legislature from itemizing appropriations or from enacting general laws, apart from the Governor’s budget [i.e., appropriation] bill, providing how lump sum items of appropriation shall be segregated, subject to the veto power of the Governor” (Tremaine I, 252 NY at 49). The Legislature always “can accomplish its objective to restrict or allocate the expenditure of appropriated funds by enacting separate bills” (1982 Ops Atty Gen No. 82-F5, at 22). Nor does New York State Bankers Assn., Inc. v Wetzler (81 NY2d 98 [1993]) hold otherwise (see opinion at 91). There we held only that the Legislature could not alter an appropriation bill other than as restricted by section 4, even with the consent of the Governor. Bankers imposes no limitation on legislative amendment of non-appropriation bills.
Third, while the Legislature may not increase the dollars proposed in a gubernatorial appropriation bill, the Legislature may later—after the comprehensive budget submitted by the Governor has first been addressed—pass a single-purpose appropriation bill that proposes to spend the same amount of money, or more, with new, different, or no conditions. Of course, both branches may well agree, as the fiscal year progresses, that additional funds are needed. Such funds must be proposed by the Legislature, because the Executive has no constitutional power to introduce appropriation bills after the budget cycle. But if the Governor disapproves of the additional spending, or of the conditions, he may veto the bill.
With each of these options forbidden, however, the Legislature will be effectively precluded from proposing or influencing policies affecting state-funded programs for which the Governor has proposed an appropriation. To cite one example, if the Governor proposed money for housing the homeless, the Legislature could neither specify which shelters should receive the funding, nor pass legislation requiring that state-funded shelters apply specific criteria, nor direct that certain programs be offered within the shelters. Or if the Governor proposed funding for prisons, the Legislature could not direct that surveil-
IV. The Line-Item Veto
In Silver I, we held that the question whether the Governor was empowered to exercise a line-item veto against substantive amendments enacted in nonappropriation bills in 1998 was justiciable, and returned the case to the lower courts for a decision on the merits. Today, the Court declines to decide the question, reasoning that because the Legislature acted unconstitutionally in amending the Governor’s nonappropriation bills, the question whether the Governor acted constitutionally in line-item vetoing those amendments is academic.
Silver v Pataki is a declaratory judgment action brought by the Speaker of the Assembly and the Senate challenging the Governor’s action. As an affirmative defense, the Governor argues that the Legislature’s actions in amending his bills were unconstitutional, thus permitting him to exercise his line-item veto. Even if the Constitution precluded the Legislature from altering nonappropriation bills—which it does not—this circumstance would not relieve the Court of its responsibility to decide the question presented. For the Governor can prevail in his affirmative defense only if he establishes two elements: that the Legislature acted unconstitutionally, and that the Constitution permits him to exercise a line-item veto to strike unconstitutionally enacted provisions. The Court ignores the second element.
As a legislative power, the veto is an exception to the separation of powers and in derogation of the general plan of state government. It may therefore be exercised only when autho-
“If any bill presented to the governor contain several items of appropriation of money, the governor may object to one or more of such items while approving of the other portion of the bill. In such case the governor shall append to the bill, at the time of signing it, a statement of the items to which he or she objects; and the appropriation so objected to shall not take effect. . . . All the provisions of this section [governing procedures for reconsideration by the Legislature of gubernatorial vetoes], in relation to bills not approved by the governor, shall apply in cases in which he or she shall withhold approval from any item or items contained in a bill appropriating money” (
NY Const, art IV, § 7 ).
Thus, the Constitution authorizes the use of the line-item veto only to strike items from appropriation bills—that is, bills containing several items of appropriation of money—as a check on government spending. There is simply no authority for exercise of the line-item veto against provisions contained in nonappropriation bills, as occurred in 1998. Nor can the Governor strike related provisions without striking the item of appropriation itself, for the Constitution is clear that it is “the appropriation” that shall not take effect upon exercise of a line-item veto.
Further, the Governor may not exercise a line-item veto in a manner that would otherwise have been impermissible simply because he believes that the provisions he strikes are unconstitutional. The Constitution recognizes no such exception. The separation of powers, moreover, does not permit the Executive to assume the judicial function of reviewing the constitutionality of laws passed by the Legislature and then acting to void them beyond his explicitly conferred power of general veto.
Tremaine I does not say otherwise. There, after determining that certain provisions attached to an appropriation bill by the
Since the courts below agreed that the provisions he struck were indeed unconstitutional—and voided the very provisions he had purported to strike—his vetoes, and therefore his ability to veto, were given full effect. Thus, if the Governor line-item vetoes an unconstitutional provision in a nonappropriation bill, his endeavor to render the provision void (by veto) will succeed if challenged on appeal, thereby effectively upholding the Governor’s authority to veto unconstitutional provisions in non-appropriation bills—the very question that the Court declines to answer.
V. Conclusion
The executive budgeting scheme set forth in our Constitution is not the system my Colleagues sanction today. For 70 years no Executive has exercised the legislative power the Court, by its affirmance, now recognizes as a template for the future. The Court rejoins that the Legislature is not deprived of its ultimate authority because it retains the option to reject a Governor’s appropriations in their entirety and cease to fund essential services of government. That the system permits stalemate is unconvincing proof that it requires it.
Judges Graffeo and Read concur with Judge R.S. Smith; Judge Rosenblatt concurs in result in a separate opinion in which Judge G.B. Smith concurs; Chief Judge Kaye dissents in another opinion in which Judge Ciparick concurs.
In each case: Order affirmed, without costs.