A hallmark of American democracy is the concept of political power balanced among the branches of government. This system of “checks and balances” was baked into our representative form of government so that no one branch could operate without constraints. And while that system has evolved over the years, that balance is still central.
In New York, the state constitution has granted the executive the upper hand in budget negotiations, but the central tenet that there should be a balance in lawmaking with the executive proposing plans and the Legislature considering and then approving them, has been in place. In our system, the Legislature is the primary policymaking body.
Until this year.
In reaction to the looming pandemic and the anticipated chaos, the Legislature ceded tremendous policymaking authority to the governor. They did so because at that point in March no one knew how bad the impact on the state would be and, at that time, the Legislature had no rules in place to act using remote means, such as the use of technological platforms that allowed voting from afar.
In one law, the Legislature granted the governor the authority to make significant changes in the agreed-to budget. Under this law, on a quarterly basis, the governor can review the state’s budget and enact cuts to spending that he deems necessary. The Legislature has the authority to come back into session to overrule those decisions, but they ceded day-to-day power to the governor to act without the Legislature.
In a similar fashion, the Legislature granted the governor unprecedented power to enact legislation without legislative approval. Again, the Legislature can come back into session to overturn actions by the governor, but allowing this new nearly unilateral authority to the governor to enact laws was an incredible expansion of executive power. The power allowed the governor to make new laws and suspend or modify existing laws, whether state or local.
This new delegation of authority requires the governor to renew his own actions every 30 days and continue them if he wishes, unless the Legislature convened in formal session and overruled him. An action they have not taken—though both the Senate and Assembly have developed rules that allow them to conduct all legislative business without being physically present in Albany.
This new arrangement not only diverges from the roles established in the state constitution, but it gives the governor unprecedented powers and allows the Legislature to duck its responsibilities.
As the pandemic eases, last week civic groups are urging that the Legislature reclaim its constitutional duties and take control of lawmaking. Under the reformers’ plan, instead of the governor reviewing his own actions, legislators would. If they chose to continue the governor’s decisions, they can. Essentially, the reformers’ plan would restore some of the Legislature’s powers.
The reformers are also urged that lawmakers get back into session to do the people’s work. Lawmakers have missed essentially one full month of session and their productivity has dropped dramatically. While a crude measure, the Senate and Assembly have jointly approved about 150 bills during the scheduled 2020 session, while in 2019 they approved 900.
The reformers’ proposal generated harsh blow back from the executive. Arguments were made that reforms would undermine the public health measures that had been approved. Using a classic “straw man” argument, defenders of a sidelined legislative branch then argued that rebalancing this power dynamic would put the health of New Yorkers at risk.
That approach was designed to distract from the central argument and cloud the legitimate concern over the correct balancing of the policy responsibilities of the branches of government.
Americans have endured a toxic national politics for a long time. Too often our national system is hinged to the strategies of debasing others’ concerns and misleading public understanding of important policies under consideration.
Sadly, it happens in New York too. American democracy is based on a system of checks and balances — a system that helps ensure that one branch does not dominate another. It is often a messy system and one that does not always work right. But it is that way by design.
Members of the state Senate and Assembly are elected to represent New Yorkers in legislative policymaking and to act as a check on the executive and the judiciary. When they cede that authority, they must do so for good reason and for only as long as necessary and no longer. Their job is to represent us, when they fail to do so, they fail to do their jobs. No amount of misinformation can counter that.