Authorizes the governor to fill vacancy in the office of lieutenant-governor on confirmation of both houses of the legislature; allows the governor to leave the state without transmitting power to lieutenant-governor; establishes the process for lieutenant-governor to act as governor during incapacitation of the governor.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5189
SPONSOR: Tannousis 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 simi-
lar 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:
2021-2022: A 8243 Held or consideration in Judiciary
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
Resolved (if the Senate concur), That the foregoing amendment to the
first regular legislative session convening after the next general
election of members of the Senate, and, in conformity section 1 of arti-
cle 19 of the constitution, be published months previous to the time of
such election.
STATE OF NEW YORK
________________________________________________________________________
5189
2023-2024 Regular Sessions
IN ASSEMBLY
March 3, 2023
___________
Introduced by M. of A. TANNOUSIS -- read once and referred to the
Committee on Judiciary
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing amendments to sections 5 and 6 of article 4 of the constitu-
tion, relating to the filling of vacancies in the office of lieuten-
ant-governor and the powers and duties of such office
1 Section 1. Resolved (if the Senate concur), That the third undesig-
2 nated paragraph of section 5 of article 4 of the constitution be amended
3 to read as follows:
4 In case the governor is impeached[, is absent from the state or is
5 otherwise unable to discharge the powers and duties of the office of
6 governor], the lieutenant-governor shall act as governor until [the
7 inability shall cease or until] the term of the governor shall expire.
8 Whenever the governor transmits to the temporary president of the senate
9 and speaker of the assembly his or her written declaration that he or
10 she is unable to discharge the powers and duties of his or her office,
11 and until he or she transmits to them a written declaration to the
12 contrary, such powers and duties shall be discharged by the lieutenant-
13 governor as acting governor. Whenever the lieutenant-governor and a
14 majority of either the principal officers of the executive department or
15 of such other body as the legislature may by law provide transmit to the
16 temporary president of the senate and the speaker of the assembly their
17 written declaration that the governor is unable to discharge the powers
18 and duties of his or her office, the lieutenant-governor shall imme-
19 diately assume the powers and duties of the office as acting governor.
20 Thereafter, when the governor transmits to the temporary president of
21 the senate and the speaker of the assembly his or her written declara-
22 tion that no inability exists, he or she shall resume the powers and
23 duties of his or her office unless the lieutenant-governor and a majori-
24 ty of either the principal officers of the executive department or of
25 such other body as the legislature may by law provide transmit within
26 four days to the temporary president of the senate and the speaker of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD89046-01-3
A. 5189 2
1 the assembly their written declaration that the governor is unable to
2 discharge the powers and duties of his or her office. Thereupon the
3 legislature shall decide the issue, assembling within forty-eight hours
4 for that purpose if not in session. If the legislature, within twenty-
5 one days after receipt of the latter written declaration, or, if the
6 legislature is not in session, within twenty-one days after the legisla-
7 ture is required to assemble, determines by two-thirds vote of both
8 houses that the governor is unable to discharge the powers and duties of
9 his or her office, the lieutenant-governor shall continue to discharge
10 the same as acting governor; otherwise, the governor shall resume the
11 powers and duties of his or her office.
12 § 2. Resolved (if the Senate concur), That the third, fourth and fifth
13 undesignated paragraphs of section 6 of article 4 of the constitution be
14 amended to read as follows:
15 In case of vacancy in the offices of both governor and lieutenant-gov-
16 ernor or if both of them shall be impeached[, absent from the state] or
17 otherwise unable to discharge the powers and duties of the office of
18 governor, the temporary president of the senate shall act as governor
19 until the inability shall cease or until a governor shall be elected.
20 In case of vacancy in the office of lieutenant-governor alone, or if
21 the lieutenant-governor shall be [impeached, absent from the state or
22 otherwise] unable to discharge the duties of office, the temporary pres-
23 ident of the senate shall perform all the duties of lieutenant-governor
24 [during] until such vacancy be filled or during the pendency of such
25 inability. In case of the removal of the lieutenant-governor alone from
26 office or of his or her death, resignation, impeachment or ascension to
27 governor, the office of lieutenant-governor shall be filled for the
28 remainder of the term by appointment of the governor, subject to confir-
29 mation of such appointment by majority vote of each house of the legis-
30 lature.
31 If, when the duty of acting as governor devolves upon the temporary
32 president of the senate, there be a vacancy in such office or the tempo-
33 rary president of the senate shall be [absent from the state or other-
34 wise] unable to discharge the duties of governor, the speaker of the
35 assembly shall act as governor during such vacancy or inability.
36 § 3. Resolved (if the Senate concur), That the foregoing amendment be
37 referred to the first regular legislative session convening after the
38 next succeeding general election of members of the assembly, and, in
39 conformity with section 1 of article 19 of the constitution, be
40 published for 3 months previous to the time of such election.
