RESOLVING THE PRESIDENTIAL SIGNING STATEMENT CONTROVERSY: NEW YORK STATE AS A SEPARATION OF POWERS LABORATORY

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1 RESOLVING THE PRESIDENTIAL SIGNING STATEMENT CONTROVERSY: NEW YORK STATE AS A SEPARATION OF POWERS LABORATORY Kristien G. Knapp * It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. 1 INTRODUCTION President George W. Bush ("Bush II") has issued more signing statements than all prior presidents combined. 2 The sheer number of signing statements fueled a controversy that, by the summer of 2006, prompted the media to investigate why after six years in office Bush had never vetoed a single piece of legislation. 3 The media investigated why he had never used the veto and the consensus concluded that it was Bush's use of presidential signing statements. What began as newspaper articles and opinion pieces evolved into legislation. 4 Even the Republi- * Notes Editor, Cardozo Public Law, Policy and Ethics Journal; J.D. Candidate (2008) Benjamin N. Cardozo School of Law. I thank Professor Kevin Stack for an enthusiastic brainstorming session that resulted in the selection of this topic. I thank Professor Richard Bierschbach for his thorough comments and valuable, but stubbornly rejected, advice. I am, more generally, grateful to Professor Michael Herz for his nurturing encouragement. I New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 2 American Bar Association, Report of the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, (Aug. 2006), available at statements/aba final signingstatements recommendation-report_ pdf. [hereinafter ABA Report]. 3 Nancy Gibbs & Alice Park, What a Bush Veto Would Mean for Stem Cells, TIME, July 26, 2006, at Id. See also Bryan Walsh, Stem Cell Central, TIME, July 31, 2006, at 58; Charlie Savage, Bush Challenges Hundreds of Laws, BOSTON GLOBE, April 30, 2006, at A1, available at laws/; Editorial, Veto? Who Needs a Veto? N.Y. TIMES, May 5, 2006, at A22, available at Editorial, A White House Power Grab, S.F. CHRON., June 12, 2006, at B6, available at chronicle/archive/2006/06/12/edgmsjboej 1.DTL.

2 738 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 6:737 can-controlled Senate Judiciary Committee held a hearing to discuss Bush's issuance of signing statements. 5 In August 2006, the controversy escalated with the American Bar Association's (the "ABA") condemnation of presidential signing statements used in similar fashion to a line item veto as an unconstitutional violation of separation of powers. 6 The ABA's recommendation followed debate amongst constitutional scholars 7 and prodded congressional action with the introduction of S by Senator Arlen Specter (R-PA) on July 26, The matter regained momentum after the Democrats gained control of the 110th Congress with the introduction of H.R. 264 by Representative Sheila Jackson-Lee (D-TX) 9 on January 5, Representative Jackson-Lee's bill summarizes the signing statement controversy and seeks to adopt legislation as recommended by the ABA. The purposes are: (1) to preserve the separation of powers intended by the Framers by preventing the President from encroaching upon the Congressional prerogative to make law; and (2) to ensure that no Federal or State executive or independent agency, and no Federal or State judge, can attach legal significance to any presidential signing statement when construing any law enacted by the Congress Hearing on Presidential Signing Statements Before Senate Judiciary Committee, 109th Cong., June 27, 2006, available at 6 ABA Report, supra note 2, at 6. 7 David Barron, et al., Untangling the Debate on Signing Statements, Georgetown Law School Faculty Blog, (July 31, 2006) [hereinafter Georgetown Faculty Blog]; John W. Dean, The Problem with Presidential Signing Statements: Their Use and Misuse, available at writ.news.findlaw.com/dean/ html; Larry Tribe, Larry Tribe on the ABA Signing Statement Report, available at (Aug. 6, 2006) [hereinafter Tribe Blog Post]. 8 S. 3731, 109th Cong. (2006), available at H.R. 264, 110th Cong. (2007). 10 S. 3731, 109th Cong. (2006), available at Specter's bill is more comprehensive than Ms. Jackson-Lee's; it prohibits judicial use of signing statements, provides Congress with standing to seek declaratory judgment, and asserts a Congressional right to intervene or submit clarifying information. Specter's bill was read twice, referred to the Judiciary Committee, and died in the 109th Congress. 11 H.R. 264, 110th Cong. (2007).

3 2008] NEW YORK AS SEPARATION OF POWERS LABORATORY 739 The bill attempts to cure the signing statement mischief by prohibiting the use of government funds to print signing statements that are inconsistent with legislative intent 12 and directing government entities to disregard presidential signing statements when they construe and apply acts of Congress.' 3 The bill has since been referred to the Committee on Oversight and Government Reform. Meanwhile, Chairman John Conyers, Jr. (D-MI) began hearings in the House Judiciary Committee on January 31, 2007, to consider the problem of signing statements with an aim to take action.' 4 In response to a request from the House and Senate Judiciary Committees, in June, 2007, the United States Government Accountability Office ("GAO") issued a report regarding signing statements.' 5 The GAO examined 11 presidential signing statements that referenced 160 statutory provisions.' 6 Of those 160 provisions, the GAO tracked the implementation of 19 provisions to find that the 10 were carried out as enacted, 3 were not triggered, and 6 were not executed.' 7 The GAO concluded that those 6 provisions were not enacted at the urging of the presidential signing statement.'" Even though congressional and media focus are more recent, presidential signing statements are not new. 19 There are three general types of presidential signing statements: rhetorical, political and constitu- 12 Id Id Full Committee Oversight Hearing on Signing Statements, 110th Cong. (2007) (statement of John Conyers, Jr.) available at aspx?id= Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Act, U.S. Government Accountability Office (June 17, 2007). 16 Id. at Id. 18 Id. at ABA Report, supra note 2, at 7; Christopher Kelley, The Unitary Executive and the Presidential Signing Statement (2003) (unpublished Ph.D. dissertation, Miami University), available at [hereinafter Kelley Dissertation); see also Richard A. Epstein, The Problem with Presidential Signing Statements, CHI. TRIBUNE, July 16, 2006, at 5, available at Charlie Savage, Examples of the President's Signing Statements, BOSTON GLOBE, April 30, 2006, at Al, available at of the presidents signingstatements/; John W. Dean, The Problem with Presidential Signing Statements: Their Use and Misuse, available at PHILIP J. COOPER, By ORDER OF THE PRESIDENT: THE USE AND MISUSE OF PRESIDENTIAL DIRECT ACTION (2002); Walter Dellinger, The Legal Significance of Presidential Signing Statements, Memorandum for Bernard L. Nussbaum, Office of Legal Counsel (Nov. 3, 1993) available at gov/olc/signing.htm [hereinafter Dellinger Memo I]; Walter Dellinger, Presidential Authority to Decline to Execute Unconstitutional Statutes, Memorandum for the Honorable Abner J. Mikva,

4 740 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 6:737 tional. 2 Most presidents have issued largely unnoticed rhetorical or political signing statements upon signing legislation into law. 2 ' Rhetorical statements 22 congratulate the work of legislators, whereas political statements comment on agency reservations and provide administrative directives for implementation. 23 They go unnoticed because they present no legal controversy. The third type of signing statement, the constitutional signing statement, looks very similar to the line item veto. 24 A line item veto occurs when a president vetoes a single portion or "line" of a larger piece of legislation while signing the remaining legislation into law. 25 It has been determined to be a violation of separation of 26 powers. In a constitutional signing statement the President interprets Counsel to the President (Nov. 12, 1994) available at [hereinafter Dellinger Memo Il]. 20 Kelley Dissertation, supra note 19, at Statement About Signing the River and Harbor Act, Herbert Hoover, July 5, 1930, available at Statement on Signing the Social Security Act, Franklin D. Roosevelt, Aug. 14, 1935, available at Statement by the President upon Signing Bill Endorsing the Truman Doctrine, Harry S. Truman, May 22, 1947, available at Statement by the President upon Signing the Public Works Appropriations Act, Dwight D. Eisenhower, July 5, 1955, available at Statement by the President Upon Signing Bill Providing frr an Increase in the Federal Judiciary, John F. Kennedy, May 19, 1961, available at Statement by the President Upon Approving Civil Rights Regulations Covering the Programs of Federal Departments and Agencies, Lyndon B. Johnson, Dec. 4, 1964, available at signingstatements; Statement on the Signing of the Voting Rights Act Amendments of 1970, Richard M. Nixon, June 22, 1970, available at 22 President Kennedy signed an education bill "with extreme reluctance," objecting to several provisions, including "the continuation of the discriminatory and ineffective non-communist disclaimer affidavit." PUBLIC PAPERS OF THE PRESIDENTS: JOHN F. KENNEDY 637 (1961). 23 For example, when signing legislation governing the recruitment of agricultural workers from Mexico, President Kennedy made clear that the Labor Department would administer it so as to protect "the wages and working conditions of domestic agricultural workers." PUBLIC PA- PERS OF THE PRESIDENTS: JOHN F. KENNEDY 639, 640 (1961). 24 Kelley Dissertation, supra note 19, at Dellinger Memo I, supra note 19.("[A] President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf Bowen v. Kendrick, 487 U.S. 589, (1987) (O'Connor, J., concurring).") 26 Clinton v. New York, 524 U.S. 417 (1998).(When a directive is given to not comply with one "line" of the legislation that the President is signing, he is effectively exercising a line item veto which has been determined by the Supreme Court to be unconstitutional.)

5 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 741 the law in a way to constitutionally challenge a portion of the legislation he is presented with, either facially or in certain applications. 27 While all this controversy surrounds presidential signing statements, there has been no similar attention drawn to state executives. In New York, governors typically use a mechanism similar to presidential signing statements called the Governor's Approval Memorandum. 28 When issued, it is the effective last word before a bill becomes law in New York. While the state legislature passes legislation, the Governor makes a legislative pronouncement when signing it into law. 29 This Note examines how a similarly used and commonly-issued tool by a state executive escapes controversy, while the same tool by the federal executive has created a controversy of constitutional proportions. It explores the similarity of approval memos to signing statements, their differing legal bases and their effect on judicial review. Then it will present overall guidance, to the extent possible, that approval memoranda can provide to resolve the signing statement controversy. Part I presents presidential signing statements through definition, historical progression and current controversy. Next, Part II presents New York gubernatorial approval memoranda through definition, historical progression and current usage. Last, Part III describes the legal differences 27 Dellinger Memo I, supra note 19; See, e.g., Statement on Signing the National Defense Authorization Act for Fiscal Year 2006, George W. Bush, Jan. 6, 2006, available at statements ("A number of provisions of the Act, including sections 905, 932, 1004, 1212, 1224, 1227, and 1304 call for the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe such provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."); Statement on Signing the Department of Defense Appropriations Act of 2007, George W. Bush, Sep. 29, 2007 ("The executive branch shall construe provisions of the Act relating to race, ethnicity, gender, and State residency, such as sections 8013, 8018 and 8048, in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution's Fifth Amendment."). 28 N.Y. Governor's Approval Memorandum on L.2005 Ch. 22, reprinted in 2 McKinney's Sessions Laws, p (May 5, 2005) [hereinafter Approval Memo /]; Governor's Memorandum on Approval of L.2005 Ch. 177, reprinted in 2 McKinney's Sessions Laws 1890 (July 12, 2005) [hereinafter Approval Memo III; Governor's Memorandum on Approval of L.2005 Ch. 246, reprinted in 2 McKinney's Session Laws (uly 19, 2005) [hereinafter Approval Memo II1]; Governor's Memorandum on Approval of L.2005 Ch. 543, reprinted in 2 McKinney's Session Laws (August 16, 2005) [hereinafter Approval Memo IV]. 29 See, e.g., Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo III, supra note 28; Approval Memo IV, supra note 28.

6 742 CARD OZO PUB. LAW, POLICY & ETHICS J [Vol. o 6:737 to provide insights that may alleviate constitutional concerns raised by presidential signing statements. I. PRESIDENTIAL SIGNING STATEMENTS A. Signing Statements Defined A "signing statement" is a verbal or, more commonly, written statement pronounced by the President of the United States when signing legislation into law. 30 It has been defined as a vehicle for presidents "to take public positions on bills about which they have reservations, but have chosen to sign. 3 The most comprehensive study of signing statements, Professor Christopher S. Kelley's dissertation, defines them in three categories: constitutional, political, and rhetorical. 2 Constitutional signing statements "address constitutional defects in a section or sections of legislation"; the President "outlines what the defect is and what he intends to do about it." 33 The statements present the President's constitutional interpretation of a section or sections of the legislation that include either a "perceived encroachment upon executive prerogatives" or "issues of federalism [or] individual rights. 34 Modern signing statements are prepared by lawyers in the Department of Justice's Office of Legal Counsel (OLC). 3 An example of a constitutional signing statement frequently used by Bush includes the language that a provision "would be construed in a manner consistent with the President's constitutional authority to withhold information, the disclosure of which could impair foreign relations, the national security, the deliberative processes of the Executive or the performance of the Executive's constitutional duties." 3 6 The constitutional signing statement is the most controversial of the three types of statements as it presents a possible separation of powers violation by encroaching upon Congress' 30 Kelly Dissertation, supra note 19, at Byron York, The Man Who Won't Veto: One Power that George W Bush Eschews, LIV NATIONAL REVIEW, No. 11, June 17, Kelley Dissertation, supra note 19, at Id. at Id. at Id. 36 ABA Report, supra note 2, at

7 2008]NEW YORKAS SEPARATION OF POWERS LABORATORY 743 legislative powers 37 and the Supreme Court's constitutional interpretative powers. 38 Political signing statements attempt to preserve the political achievement of the legislation. 3 9 To obscure the political nature, they often use constitutional language, but their simple function is to call the attention of an important political constituency whose goal is realized through the legislation. 40 The political signing statement directs the implementing agency on how to carry out the statute, based on the president's preferences or in a manner favorable to preferred constituents. 4 This strategy was used by President Clinton ("Clinton") as a strategy to secure the support of pro-choice and gay rights activists. 42 Contemporary political signing statements are advocated by political members of the White House staff or agencies themselves and have been issued over constitutional-grounds objections from the OLC lawyers. 43 Rhetorical signing statements are also politically motivated, but are comparatively toothless, as they contain neither directives nor legal claims. 4 ' They are the written equivalent of a Rose Garden ceremony; rhetorical signing statements are an attempt to mobilize the President's supporters by showcasing the victory sealed into law, or to mourn the loss in a hard compromise. 45 Either way, the rhetorical signing state- 37 U.S. CONST. art. I, 1 ("All legislative powers herein granted shall be vested in a Congress of the United States."). 38 Marbury v. Madison, 5 U.S. 137 (1803). 39 Kelley Dissertation, supra note 19, at Id. 41 Id. at 46, Id. at See also Statement on Signing the Telecommunications Act of 1996, President William J. Clinton, 32 WEEKLY COMP. PREs. Doc. 6 at 219 (Feb. 12, 1996) (President Clinton issued a signing statement directing non-enforcement of a provision that prohibited the distribution of abortion information over the internet as he had received advice from the Department of Justice that provision was an unconstitutional violation of the First Amendment.); Statement on Signing the National Defense Authorization Act of 1996, 32 WEEKLY COMP. PREs. Doc. 7 at (Feb. 10, 1996) (President Clinton issued a signing statement knowing his veto would be legislatively overrode; the statement indicated that contrary to the legislation his administration would not diminish benefits to HIV members of the military and the Department of Justice would decline to defend the provision's constitutionality). 43 Kelley Dissertation, supra note 19 at See, e.g., Statement on Signing the Telecommunications Act of 1996, President William J. Clinton, 32 WEEKLY COMP. PREs. Doc. 6 at 219 (Feb. 12, 1996); Statement on Signing the National Defense Authorization Act of 1996, 32 WEEKLY COMP. PRES. Doc. 7 at (Feb. 10, 1996). 44 Kelley Dissertation, supra note 19, at Id. at See also Mark R. Killenbeck, A Matter of Mere Approval? The Role of the President in the Creation of Legislative History, 48 ARK. L. REV. 239 (1995) at

8 744 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. V 6:737 ment is an opportunity for the President to mark his signature as the final scene in the legislative act and take credit in the glory or cast doubt on the legislation while expressing his disappointment. 46 All three types of signing statements are routed the same way after the bill is delivered to the White House from Congress. 47 The key player is the OLC; it is charged with providing constitutional analysis of the bill and preparing a preliminary signing statement to avoid any constitutionally problematic provisions." 8 The bill also must be vetted by the Legislative Reference Division within the Office of Management and Budget ("OMB"). 9 That office coordinates with agencies affected by the bill. Those agencies present their analyses and recommendations for veto or signage and, if appropriate, signing statement inclusions. 50 Last, the bill is considered by White House staff to weigh the varying legal opinions and agency considerations and add its political judgments. 51 B. The Legal Basis and Historical Progression Article 1 Section 7 of the United States Constitution provides: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it; but if not he shall return it, with his Objections to the House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with his Objections, to the other House, by which it shall likewise by reconsidered, and if approved by two thirds of that House, it shall become Law. 52 Therein are the constitutional guidelines for the passage of legislation. Article 1 Section 7 requires the bicameral majority support for the legislation along with presidential presentment. This requirement leaves the President with the option of signing the legislation or returning it to 46 Kelley Dissertation, supra note 19, at Kelley Dissertation, supra note 19, at Id. 49 Id. at Id. 51 Id. at U.S. CONST. art. I 7, c. 2.

9 2008]NEW YORKAS SEPARATION OF POWERS LABORATORY 745 the Congress with his objections where it can be reconsidered. The president also has the option of retaining it and not signing. Article 1 Section 7 further states: If any Bill shall not returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it Shall not be a Law. That is, if the President does not sign the legislation within ten days, it becomes law without his signature, so long as Congress remains in session. If Congress adjourns within ten days, the President can retain the legislation and it will not become law; this is the "pocket veto." 5 3 The Supreme Court has stated that Article 1 Section 7 is the extent of the legislative power. 5 4 It must be "exercised in accord with a single, finely wrought and exhaustively considered, procedure." 55 Following that reasoning to its logical conclusion, there is no constitutional basis for the issuance of a presidential signing statement. The Framers did not consider the legal effect of the President's rhetorical remarks, constitutional concerns, or political comments at the time of his signing legislation into law. 56 Furthermore, there is no statutory provision giving legal credence for the issuance of signing statements. Nevertheless, they have been issued since the presidency of James Monroe. 57 Presidents Monroe, Jackson, Tyler and Lincoln each played a part in the historical progression in the nineteenth century and generated some level of controversy through their issuance of presidential signing statements. Monroe was the first president to issue a signing statement. 58 In one case, he issued a signing statement approximately a month after he signed the bill into law. 59 The first signing statement was constitutional; Monroe explained that he, not Congress, had the power to appoint officers of the army. 6 Jackson issued a statement upon his signing of an appropriations bill which Congress compared to 53 Id. 54 INS v. Chadha, 462 U.S. 919 (1983). 55 Id. 56 See THE FEDERALIST. 57 Kelley Dissertation, supra note 19, at 51, Id. 59 Id. at Id.

10 746 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 6:737 a line item veto; the bill provided for the expansion of roads but Jackson limited that expansion to no farther west than Michigan. 61 Tyler issued a signing statement questioning the constitutional validity of an apportionment bill. 62 Congressional disapproval was harshly memorialized and created a subsequent cooling effect on the issuance of signing statements, after bold moves by the Lincoln Administration. 63 Signing statements became legitimate and commonplace and gained greater legal significance in the twentieth century. 64 There were instances of signing statement issuance that created dramatic showdowns between the White House and Congress and affected judicial interpretation during Franklin D. Roosevelt's Administration, Harry Truman's Administration, and John F. Kennedy's Administration. 65 Presidents Ford and Carter notably issued many rhetorical signing statements in attempts to gain political support. 66 More legally significant, Ford and Carter used signing statements seventeen times to express their constitutional objections to the legislative veto. 67 It was President Ronald Reagan's Administration who solidified the modern use of signing statements and their impact on the subsequent growth in Executive power, built upon the framework established by Ford and Carter. 68 The Reagan Administration, in 1986, cemented signing statements into legislative history by securing a deal for signing statements to be published in the "Legislative History" section of the United States Code Congressional & Administrative News (U.S.C.C.A.N.) published by the 61 Id. at Id. at Id. (The House Select Committee questioned President Tyler's issuance of the statement and instructed it, "be regarded in no other light than a defacement of the public records and archives.") 64 Id. at 59. See also La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899). 65 Id. at (President Franklin Delano Roosevelt, on one occasion, issued a signing statement which led Congress to repeal a section of its bill. On another occasion, President Roosevelt raised constitutionality questions in his signing statements which were reviewed by the Supreme Court in striking down the law. President Truman issued a signing statement defining a statutory ambiguity which was later adopted by the Court. President Kennedy similarly attacked a statutory provision but his remarks were not noted by the Court.) 66 Id. at President Ford issued rhetorical signing statements in an attempt to transfer public attention from his pardon of President Nixon to his legislative accomplishments during the 1976 election cycle. President Carter similarly issued rhetorical signing statements in an attempt to reclaim public attention from the Iranian hostage situation during the 1980 election year. 67 Id. at 76. See also INS v. Chadha, 462 U.S. 919 (1983). 68 Id. at 72-73, 82.

11 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 747 West Corporation. 69 This change was part of Reagan's plan to centralize power in the Executive branch under his theory of the "unitary executive." 70 Reagan attempted to strengthen the Executive by reining in the administrative state to assert more control over policy. To do so, he fiercely litigated for presidential preeminence and administrative deference. 71 Furthermore, Reagan won two important Court victories asserting Executive power after issuing constitutional signing statements. 72 Reagan continued the tradition of Ford and Carter in raising objections to the legislative veto. 73 Although he supported the legislative veto during his campaign, as President, Reagan shifted his opinion and objected to the legislative veto. 74 His signing statement objection was noted in Footnote 13 of the majority opinion in INS v. Chadha. 75 In one fell swoop, the Executive gained the powerful benefits of the invalidation of the legislative veto as a violation of Article 1 section 7 presentment and a quiet validation of presidential power to issue constitutional signing statements. 76 The next significant use of Reagan's constitutional signing statements was upon signing the "Balanced Budget and Emergency Deficit Control Act, 1985." 77 That Act provided that if the President and Congress were unable to meet certain budget-cutting "targets," the Comptroller General would receive control over "sequestered funds. 78 Reagan's signing statement objected on two constitutional points. First, that the Comptroller General was carrying out Executive duties. And, second, that the Comptroller General should be subject to presidential control, not congressional control Id. at 82, Id. at Id. at The Reagan Administration reclaimed control of agencies through his hiring policies (to hire people that expressed commitment to his policies), the issuance of Executive Order 12,291 (creating a channel for preliminary review of agency rulings through OMB and OIRA (Office of Information and Regulatory Affairs), and successful Supreme Court rulings giving deference to agency policy determinations (Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984); Heckler v. Chaney, 470 U.S. 821 (1985).). 72 Id. at See also INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714 (1986). 73 Kelley Dissertation, supra note 19, at Id. 75 INS v. Chadha, 462 U.S. 919 n. 13 (1983). 76 Id. See also Kelley Dissertation, supra note 19, at Kelley Dissertation, supra note 19, at Id. 79 Bowsher v. Synar, 478 U.S. 714 (1986); Kelly Dissertation, supra note 19, at

12 748 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 6:737 Worth noting is that the Reagan Administration's non-captioned, but more substantial adversary in INS v. Chadha and Bowsher v. Synar was Congress. This tension signifies the Reagan Administration's contentious relationship with Congress, and provides the background motivation for Edwin Meese's (Attorney General) decision to arrange for the publication of signing statements in U.S.C.C.A.N. 8 " Meese intended to transform the signing statement from what had been the equivalent of a press release into a piece of legislative history. 8 ' Then Deputy Assistant Attorney General for the OLC, Samuel Alito wrote a strategy memo outlining how to implement the Administration's plan to use signing statements to shape laws and "ensure that [p] residential signing statements assume their rightful place in the interpretation of legislation. '' 2 Presidents George H.W. Bush (Bush I) and Clinton followed Reagan's signing statement precedents. 83 Bush I, in his one term, issued 214 signing statements to Reagan's two term total of Moreover, while Reagan issued many constitutional and rhetorical signing statements (71 and 94, respectively), Bush issued mostly constitutional signing statements (146) and much less rhetorical statements (38).85 More important, though, the Bush Administration took signing statements a step further by attempting to manipulate legislative history. 86 The Bush Administration planned to broker deals with members of Congress wherein the members would insert an "alternative" interpretation into the legislative history by implanting the President's interpretation into the record in exchange for a promise not to veto. 8 7 Bush used this strategy when issuing his signing statement for the Civil Rights Act of That Act included a congressional override of the Supreme Court ruling in Ward's Cove Packing Co. v. Antonio. 89 Bush relied on a 80 Kelley Dissertation, supra note 19, at Id. at 102; see also Samuel A. Alito, Jr., Using Presidential Signing Statements to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law, Office of Legal Counsel, Department Of Justice, February 5, 1986 (hereinafter Alito Memo). 82 Alito Memo, supra note 81, at Kelley Dissertation, supra note 19, at Id. at Id. 86 Id. at Id. at Id. at Id.; see also ABA Report, supra note 2, at 12; Ward's Cove Packing Co. v. Antonio, 490 U.S. 642 (1989); Civil Rights Act of 1991, 137 CONG. REc. 155 (1991) at S.15273; CHARLES TIEFER, THE SEMI-SOVEREIGN PRESIDENT: THE BUSH ADMINISTRATION'S POLICY FOR Gov- ERNING WITHOUT CONGRESS (Westview Press 1994).

13 2008] NEW YORK AS SEPARATION OF POWERS LABORATORY 749 colloquy in the Congressional Record to buttress his signing statement's assertion that the act "codifies" rather than "overrules" the Supreme Court's holding in Ward's Cove. 90 The success of this strategy is unclear because it has failed to gain judicial acceptance, but the Bush Administration's intent to assert further Executive marks on legislative history and advance the "unitary executive" theory was a clear success. President Clinton continued the trend started by Reagan to advance the "unitary executive" model while issuing signing statements. 9 ' The number of signing statements issued increased from the Reagan Administration (276) to the Clinton Administration (394).92 Clinton's signing statements were mostly rhetorical (265), often constitutional (105), and sometimes political (21). 93 As Bush I before him, Clinton's use of signing statements furthered the "unitary executive" model. 94 Clinton extended Reagan's Executive Order 12,29195 by issuing Executive Order 12,86696 further extending OIRA and OMB discretion over agency rulemakings and providing for cost-effective changes to regulations. 97 Clinton's policy regarding signing statements was explained in two memos prepared by Deputy Attorney General Walter Dellinger within OLC. 98 The Dellinger Memos advocate the use of signing statements along with the proposition that the President is duty bound by the Take Care Clause 99 to conduct his own inquiry into the constitutionality of a piece of legislation. 1 "' Therefore, Dellinger solidified the Reagan position within the Clinton Administration, albeit with reservations regarding the placement of signing statements in the legislative history.' Dellinger's reservations centered around the President's role in the legislative process. In particular, Dellinger considered whether the legislative "act" concluded before reaching the President's desk or at 90 Kelley Dissertation, supra note 19, at ; see also Ward's Cove, 490 U.S. 642 (1989). 91 Kelley Dissertation, supra note 19, at Id. at Id. 94 Id. at Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981). 96 Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993). 97 Id.; see also Kelley Dissertation, supra note 19, at Dellinger Memo I, supra note 19; Dellinger Memo II, supra note 19; see also Kelley Dissertation, supra note 19, at U.S. Constit. art. I 3 provides: "he shall take Care that the Laws be faithfully executed." 100 Dellinger Memo I, supra note Id.

14 750 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 6:737 the President's desk Dellinger also saw the possibility that the signing statement implanting legislative history could infringe on the constitutional ban on line item vetoes.' 0 3 Furthermore, he encouraged executive review of the constitutionality of legislation, but also weighed it against the Supreme Court's notion of constitutionality." 0 4 Dellinger asserted that when the Executive viewed a provision as unconstitutional, and could predict the same interpretation by the Supreme Court, it would be safe to not enforce the provision. 0 5 He discouraged the nonenforcement of legislation that the Executive found unconstitutional when it could not faithfully conclude that the Supreme Court would agree.' 0 6 The Clinton Administration, thus, furthered the "unitary executive" theory and signing statement use begun by Reagan, without much fanfare, legislative controversy, or judicial notice. C. Bush's Use of Signing Statements That historical foundation laid the framework for a scenario where a sixth year president had always maintained the partisan support of Congress and never issued a single veto Instead, Bush II had issued more than 800 signing statements, 0 8 more than all past presidents combined.' 0 9 At first glance, Bush's use of signing statements is on par with the uses since the Reagan Administration. He has issued statements to advance the unitary executive theory and to assert presidential control over foreign policy, national security, and Commander-in-Chief issues. 110 Bush's signing statements have touched important and widely reported legislation, refusing to report back to Congress use of the Patriot Act for searches of homes and seizures of papers,"' waiving enforcement of the McCain Amendment to not torture prisoners," 2 and 102 Id. 103 Id. 104 Id. 105 Dellinger Memo II, supra note Id. 107 Nancy Gibbs & Alice Park, What a Bush Veto Would Mean for Stem Cells, TIME, July 26, 2006, at ABA Report, supra note 2, at 14. This number counts each provision, not each piece of legislation. The actual number of statements is roughly Id. at 6. See also Kelley Dissertation, supra note 19, at ABA Report, supra note 2, at Statement on Signing the USA PATRIOT Improvement and Reauthorization Act of 2005, George W. Bush, Mar. 9, 2006, available at Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, George W. Bush,

15 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 751 rejecting the requirement that government scientists report uncensored findings to Congress.'" 3 Bush's signing statements have not only angered his political opponents but have also resulted in congressional rebuke through the enactment of legislation requiring the Attorney General to report any incidence of statutory non-enforcement furthered by the Department of Justice."' The signing statement corresponding to that legislation asserted presidential authority to "withhold information... whenever necessary for foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."' 15 The vagueness accompanying a determination of the triggering "necessity" similarly appears in many of Bush's signing statements and has enraged the ABA and members of Congress. 16 ' D. Controversial Use and Constitutional Issues The constitutional issue arises when the President interprets a provision of legislation differently than Congress construed during its deliberation. 117 It is clear that the President has the ability to issue signing statements in each of the three categories: rhetorical, political, and constitutional. The uncertainties lie in the limitations of the constitutional signing statement. When is it appropriate for the President to determine that a law is unconstitutional and should not be enforced? As Dellinger has outlined, and most constitutional scholars agree, 1 8 if the President is speaking in line with prior Supreme Court interpretations or likely rulings, the President is acting in accord with the separation of powers doctrine, Supreme Court guidance, and his duty to Take Dec. 30, 2005, available at ("The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks."). See also Charlie Savage, Bush Could Bypass New Torture Ban, BOSTON GLOBE, Jan. 4, 2006, at Al. 113 Savage, Bush Could Bypass, supra note 112, at Id. at 17, Pub. L , 202(a), codified at 28 U.S.C. 530D (2002) as reprinted in 2002 U.S.C.C.A.N Statement on Signing the National Defense Authorization Act for Fiscal Year 2006, George W. Bush, Jan. 6, 2006, available at ABA Report, supra note 2, at ABA Report, supra note 2, at Dellinger Memo I, supra note 19; Dellinger Memo II, supra note See supra note 7.

16 752 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. [ 6:737 Care. " 9 It is when the President independently asserts an opinion as to the constitutionality of a statutory provision that is in conflict with Supreme Court holdings, reasoning, or uncertainty that a separation of powers violation may occur. When a President chooses to not enforce a statutory provision, as a result of his independent determination that it lacks constitutional validity, it can operate as a possible infringement on legislative and judicial powers.' 2 This scenario is one that will not be decided unless the Supreme Court itself weighs in. Persuasive guidance to resolve this question may, instead, be found in state constitutional law. Notably, there is a feature similar to the presidential signing statement in New York State: the Governor's Approval Memorandum. II. NEW YORK GUBERNATORIAL APPROVAL MEMOS A. Approval Memoranda Defined It has been common practice in New York State for the Executive to attach an "Approval Memorandum" upon the signing of legislation. " '21 This memo is typically short, roughly one to two pages.' 22 It usually contains a concise, yet thorough, explanation of how the legislation will change current law, what statute it will fit in, and how it will add to or subtract from the existing law. 123 Next, the memo thanks the work of the legislation's sponsors, while preserving their intentions. 124 The memo also records any doubts or concerns expressed by state agen- 119 Dellinger Memo I, supra note 19; Dellinger Memo II, supra note But see ABA Report, supra note 2, at 18, asserting that any non-enforcement of signed legislation operates as a line-item veto and is a constitutional violation of separation of powers. This assertion seems clearly wrong because there would be no effective reason for the President to comply with legislation that the Supreme Court has already declared unconstitutional in derogation of the Take Care clause. The President would need to execute the law and await a case or controversy challenge so that the judiciary and not the executive would invalidate the law. This reasoning is supported by Dellinger Memo I, supra note 19, Dellinger Memo II, supra note 19, Alito Memo, supra note 82, Georgetown Faculty Blog, supra note 7, and the Tribe Blog Post, supra note See supra, note Id. 123 See, e.g., Approval Memo I, supra note 28 ("The New York Publishers Association is congratulated for its work in support of the legislation. The publishing group probably stands to profit from more efficient receipt of government documents through free FOIL requests."); see also Approval Memo II, supra note 28; Approval Memo III, supra note 28; Approval Memo IV, supra note Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo Ill, supra note 28; Approval Memo IV, supra note 28.

17 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 753 cies prior to signing regarding the effects of the legislation.1 25 Finally, the Governor expresses any other concerns he might have including any reservations or open interpretive questions that remain.' 26 These memos are recorded in the legislation's Bill Jacket. 127 The counterpart to the approval memo is the Governor's "veto memo" or "veto message.' 1 28 The veto memo is a New York Constitutional requirement 129 and is similar to the United States Constitutional requirement."0 If the Governor chooses not to sign a piece of legislation, he must return it to the New York State Legislature (whichever house sponsored the bill) with his objections. 31 The veto memo includes these objections. Upon receipt of these objections, the legislature has an opportunity to reconsider the legislation and consider the Governor's objection to whatever degree they wish. 132 While there is a clear constitutional requirement that such comments are given to the legislature by the Governor, there is no such constitutional directive for comment on a bill's approval. 133 Veto memos do not end with a new law and merely continue the legislative dialogue between the Executive and Legislature. They are not memorialized in the same fashion as the approval memo and, therefore, remain legally insignificant, unless used to understand subsequent legislation and its history. 134 On the other hand, approval memos are recorded as the last word in the step-ladder of how the bill became law, and thus are legally significant. Approval memos have been used to clarify legislation when it presents a legal 125 Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo III, supra note 28; Approval Memo IV, supra note Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo III, supra note 28; Approval Memo IV, supra note Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo III, supra note 28; Approval Memo IV, supra note See, e.g. Governor's Veto Message #3, Executive Budget, S.3669 (Chapter 59) New York State Legislative Annual (2005) (The Governor line vetoed a multi-year appropriation for violating the Governor's constitutional budgeting power, as interpreted by the New York Court of Appeals in Pataki v. Assembly, 4 N.Y.3d 75 (2004).). 129 See N.Y. CONST. art. IV, U.S. CONST. art. I, 7, cl Id. 132 Id. 133 Id. 134 In re Gleason, 749 N.E.2d 724 (N.Y. 2001) (Veto message cited as point of contention between legislature and Governor prior to legislative re-draft, presentment, and approval by Governor.); In re M.B., 846 N.E.2d 794 (N.Y. 2006) (Veto message cited in court's analysis of legislative history.).

18 754 CARDOZO PUB. LAW, POLICY & ETHICS I [Vol. 6:737 question in New York courts.1 35 The memos are ripe for this type of analysis because they purport to preserve both legislative intent and present the open legal questions as framed by the Executive. B. The Legal Basis and Historical Progression As in the federal context, there is no clear legal authority for approval memos in New York. There has never been any provision in any version of the New York Constitution that mentions an "approval memo." 136 The Constitution provides no direct language or evidence of the Governor's basis for producing and issuing these memos. 137 The legislature has never statutorily authorized the use of approval memos, nor do they appear to have formally addressed the memos in any capacity. The power to review legislation, as in the federal context, lies within the judiciary. 38 While the judiciary has never officially pronounced the legal authority of a Governor's Approval Memo, at some point the judiciary accepted the approval memo as equally authoritative as legislative history. Courts in New York have used approval memos as synonymous with not only legislative history but also legislative intent. 139 Rather than looking at legislative hearings, records, or debates, the courts have found a short-cut in approval memos. 14 The obvious irony is that the courts are looking to the Governor to tell them what the legislature was thinking. Of course, that is the very result desired when the use of presidential signing statements was expanded during the Reagan administration. 4 ' So how is it that the Gov- 135 People v. Kane, 2006 WL (2006) (Benign mention of Governor's Approval memo; facts stated in approval memo are used to explain subsequent legislative action.); Russo v. Nassau County Community College, 623 N.E.2d 15 (N. Y. 1993) (Governor's Approval Memo is quoted to buttress already stated legislative intent.); People v. Cagle, 826 N.Y.S.2d 589 (N.Y. 2006) (Governor's Approval Memo is cited as the sole, determinative piece of legislative history.); CWM Chemical Services, L.L.C. v. Roth, 846 N.E.2d 448 (N.Y. 2006)(Citing Approval Memo as legislative history.); Daimler Chrysler Corporation v. Spitzer, 804 N.Y.S.2d 506 (2005) (Governor's Approval Memo is cited to bolster court's reasoning.); In re City of New York, 10 Misc.3d 1060(A), 809 N.Y.S.2d 480 (N.Y. Sup.Ct Kings Cry. 2005) (Three separate gubernatorial approval memo's, issued by two different Governors, are cited as legislative intent.). 136 See generally N.Y. CONST. 137 Id. 138 Id. 139 See supra note Id. 141 Alito Memo, supra note 82.

19 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 755 ernor of New York gets away with what the President can't so easily manage? The Governor of New York has a power that the President of the United States wants; the Governor gets to review legislation, direct its implementation, and effectively influence judicial analysis of statutory law. The courts in New York have allowed the Governor to be the Legislature's mouthpiece. This ability could be the result of past governors' politically motivated schemes to gain persuasive authority in the courts. More likely, though, it is the result of a natural historical progression without the federally separated powers' political fights. 142 The original New York Constitution only required the Governor to make "remarks" to the legislature upon convening their session There was no other official interaction between the legislature and Governor provided for in the New York Constitution The original New York Constitution was drafted in 1776 and became effective in 1777 without voter approval.' 45 That document imagined a relatively weak Governor with a dominant bicameral legislature. 146 This conception has since changed; the New York Constitution has undergone revisions by constitutional convention and voter ratification in 1821, 1846, and The 1894 constitution is still effective, but was amended in The New York State Constitution prefers change: it actually provides for consideration of a new constitutional convention every twenty years As a result of the many constitutional conventions and revisions, developments have shifted power from the Legislature to the Executive and have included: the veto power, 15 the requirement of 142 The New York State Assembly and the New York State Senate are one of the most stable partisan bodies in the country. For over 40 years, the New York State Assembly has been run by a Democratic majority while the New York State Senate has been led by a Republican majority. Although there have been fluctuations in party control of the Governor's office, this stable balance of power within the Legislature goes a long way to explain why there is less collision between that body and the executive branch within New York State. Michael Cooper, Republicans Keep Control of Senate in New York, N.Y. TIMES, Nov. 8, 2006, at P14. See also Bruce Lambert, Race to Fill Senate Seat Has Parties at Full Throttle, N.Y. TIMES, Jan. 21, 2007, at N.Y. CONST. (1777). 144 Id. 145 SARAH F. LIEBSCHUTZ, ET AL., NEW YORK POLITICS & GOVERNMENT: COMPETITION AND COMPASSION, 1998, at Id. 147 Id. at Id. at Id., N.Y. CONST. art. XIX LIEBSCHUTZ, supra note 145, at 34; N.Y. CONST. art. IV 7.

20 756 CARDOZO PUB. LAW, POLICY & ETHICS J [[Vol. 6:737 "comment" upon a Governor's use of the veto, 5 ' the line-item veto for appropriations in line with executive budgeting, 152 and a single issue requirement in relation to legislation having a "local" effect.1 53 Each of these constitutes a change in the Constitution from the original form, and some of them hint to major differences in the legislative characters of state and federal legislation. The original New York Constitution did not entrust the Governor with the veto power.' 5 ' Instead, the veto was given to the Council on Revision.' 55 The veto power was given to the Governor upon voter ratification in 1822, after the constitutional convention of Meanwhile, every United States President has had the veto power; it was included in the Constitution by the Framers. 5 7 Today, the Governor's veto power is arguably stronger than that of the President.' 58 This distinction makes a great deal of sense, because measuring the Governor's power against the legislature as compared to presidential power versus congressional power, the Governor holds a great deal more of the separated powers in New York.' 59 For example, the Governor has been called the "chief legislator." 16 This nomenclature is because the Governor works full time for his statewide constituents, whereas the legislators are part-time officeholders who have localized constituents. 161 The Governor is in charge of the budget process and can direct important legislation by sending it to the legislature along with a "message of necessity;" such messages expedite legislative consideration and bypasses legislative procedures. 162 The Governor further directs policy through use of the veto. Historically, the veto has been used without hesitation 151 N.Y. CONST. art IV Id. 153 N.Y. CONST. art III N.Y. CONST. (1777). 155 LIEBSCHUTZ, supra note 145, at Id. 157 U.S. CONST. art I 7, cl Due to the single issue rule and the line item veto, if the Governor disagrees with legislation he has an easier time vetoing it. The President, on the other hand, has a harder time using the veto because while vetoing to deny a single provision, he would also strike a number of other provisions and policies with which he approves. The President effectively stalls his own work by vetoing legislation. 159 LIEBSCHUTZ, supra note Id. at Id. 162 Id.

21 200 8]NEW YORK AS SEPARATION OF POWERS LABORATORY 757 and has been overridden by the legislature very infrequently Article IV Section 7 states: If the governor approve, he shall sign it; but if not, he or she shall return it with his or her objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it... 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. 164 The Governor has the power to veto legislation, but must return the bill to the sponsoring chamber, along with his "objections." 165 As a result of the comment provision, governors issue comprehensive memoranda containing analysis, reasons for veto, and suggestions for rewriting sign-worthy legislation. 166 It is this development that likely triggered the development of approval memos. One possibility is that governors begin preparing these memoranda in advance of receipt of legislation in order to be prepared to sign or veto within the ten day requirement The close similarities between current veto and approval memos conflate this idea-if the Governor were to change his mind and veto instead of approve, or vice versa, hypothetically he need only switch two or three sentences to submit comment. Approval and veto memoranda are fairly similar: both exhibit concerns about the legislation, both mention the bills' sponsors, and both admit administrative concerns.' 68 Of course, there are language differences and stronger negatives in vetoes, and fewer concerns stated in approvals, but those differences only support the idea that the memo positions can easily be changed Id. at The veto was used between 1875 and 1980 almost 25,000 times. The override was used sixteen times between 1823 and 1872 and even less frequently since. 164 N.Y. CONST. art. IV Id. (This condition is the same "comment" requirement under U.S. CONST. art 1 7.) 166 See supra note Id.; N.Y. CONST. art. IV 7. This suggestion would mirror the federal development of OIRA and OLC in reviewing legislation prior to passage and vetting by the fifth day after presentment. 168 See supra notes 28, Id.

22 758 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 6:737 Or, perhaps these memos developed as governors produced them in order to decide what to do with the legislation, adding their support or rejection after reading the content and weighing the legislature's intentions against their administration (and their own) reservations about the goals or means of the legislation. Either way, the similarities between the two types of memos indicate strong similarities in their production, and thus it is safe to assume a similar historical development. While veto memos were essentially a requirement imposed upon the Governor by the Constitution, 17 1 the Approval Memo likely evolved out of a desire to parallel that requirement. Also of import, the Governor of New York has a line-item veto power in appropriations contexts In fact, the entire budgeting process in New York State is different from the federal budgeting process: 72 New York State utilizes "executive budgeting."' 173 It is the Governor who presents a budget, made up of one or more bills, to the legislature. 17 Then, the legislature has a line-item veto over the Governor's bill. 175 Once passed by the legislature, the appropriations become law, subject to the Governor's line-item veto power over any legislative amendments. 176 The President did have the line-item veto power, short of executive budgeting, for a short time in the 1990s, 177 but it was deemed an unconstitutional executive invasion on legislative power by the Supreme Court in Clinton v. New York.' 78 The relevance, here, of the line-item veto in relation to signing statements and approval memos is twofold: (1) there is a separation of powers flip in New York that gives the Governor legislative duties, 179 and (2) because the President doesn't have this tool, one could logically see why he might take advantage of an opportunity to express himself in the form of a signing statement. Another difference between the New York and federal Constitutions is that the New York Constitution has a provision which proscribes legislation addressing more than a single issue when it is "local" in na- 170 N.Y. CONST. art. IV 7 (1822). 171 N.Y. CONST. art. IV, N.Y. CONST. art. VII; Pataki v. Assembly, 4 N.Y.3d 75 (2004). 173 Id. 174 N.Y. CONST. art. VII 2, N.Y. CONST. art. VII N.Y. CONST. art. IV Line Item Veto Act of 1996, 2 U.S.C (1996), invalidated by Clinton v. New York, 524 U.S. 417 (1998). 178 Id. 179 Pataki v. Assembly, 4 N.Y.3d 75 (2004).

23 2008] NEW YORK AS SEPARATION OF POWERS LABORATORY 759 ture: "No private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title." 180 That is, when legislation will have an effect on one municipality, or attempts to resolve a specific local problem, that legislation cannot be amassed with other, unrelated legislation. 81 It must stand alone and be named accordingly so that those affected will be on notice of the legislative changes that will effect them.' 82 This requirement is significant because, while the President is faced with large, omnibus bills, 8 3 including many provisions arrived at by legislative compromise, the Governor is presented with mutually exclusive local or general laws. 184 What the President sees as "pork," the Governor will either never see or can quickly veto without much consideration because it is presented differently. One area of significant divergence between the federal and New York state regimes is that of statutory interpretation. While federal construction of statutes is often the subject of academic and judicial debate, 185 in New York, the rules of statutory interpretation are codified. 8 6 Although there is no codified authorization for the use of gubernatorial approval memoranda, the New York statute does provide additional room for gubernatorial construction of statutes.' 87 That is, the governor is given, by statute, explicit "legislative" functions at the time of his signing or vetoing of legislation into law.' 88 Moreover, New York Statutes section 120 permits courts to use extrinsic aids when there is "doubt as to the meaning of the language of a statute,"' 8 9 including 180 N.Y. CONST. art. II1, Id. 182 Id. 183 See, e.g., National Defense Authorization Act for Fiscal Year 2006, Pub. L. No N.Y. CONST. art III See, e.g., HENRY HART, JR. & ALBERT SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAw (1994); Philip Frickey, Faithful Interpretation, 73 WASH. U. L.Q (1995), ANTONIN SCALtA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997), RICHARD POSNER, THE FEDERAL COURTS: CRISIS AND REFORM (1995). 186 NY Stat 1, et seq. 187 NY Stat 14 ("The Governor's function in approving and disapproving bills submitted by the Legislature, as required by the Constitution, is legislative in nature."). 188 This seeming "delegation" of legislative functions appears is in conflict with NY Stat. 3 ("[T]he Legislature may not delegate its lawmaking powers..."), and N.Y. CONST. art. 3 1 (the constitutional vesting of the legislative power in the senate and assembly). 189 NY Stat 120.

24 760 CARD OZO PUB. LAW, POLICY & ETHICS J. [Vol. 6:737 contemporaneous interpretations' 9 " and interpretations by public officers.' 9 ' These provisions pave the way for use of gubernatorial approval memoranda by courts as extrinsic guides as either pieces of legislative history or as persuasive interpretations to resolve textual ambiguity. C. Use of Approval Memos by Governor Pataki in 2005 In 2005, Governor Pataki used the veto 121 times and wrote a "Veto Memo" each time. 192 He issued only 4 approval memos in the same period.' 93 The four approval memoranda included an amendment to the Public Officers Law regarding Freedom of Information Law ("FOIL") requests,' 94 an extension of time to file local property taxes,' 95 an amendment to Insurance Law regarding confidentiality for health insurance recipients,' 96 and an amendment to the Agriculture and Markets law regarding kosher food Approval Memo I The Governor's Approval Memorandum on L.2005 Ch. 22, "A[n] A[ct] to amend the public officers law, in relation to the date when requests for records under the freedom of information law shall be granted," was Governor Pataki's first use of the Approval Memorandum in Upon reading the legislation itself, 199 one can easily see the 190 NY Stat NY Stat McKinney's Session Laws, 2005; There is no particular reason for the choice of 2005 other than its currency. The steps taken to analyze each memorandum included reading the text of the statute, the text of the Governor's Memo and comparing that to any legislative information found. Note, during the same time period, President Bush vetoed no piece of legislation, but issued signing statements 14 times challenging multiple provisions in each piece of legislation. The American Democracy Project, Presidential Signing Statements, (last visited Mar. 8, 2007). 193 Approval Memo I, supra note 28; Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo IV, supra note 28. Pataki is noted for issuing fewer Approval Memoranda than his predecessors, preferring instead to issue press releases at the time of approval. New York State Legislative Annual 2005 at p Earlier in his administration, he had issued approval memos more frequently. He had issued 114, 130, and 102 in 1995, 1996, and 1997, respectively. New York State Legislative Annual, 1995, 1996, Approval Memo I, supra note Approval Memo II, supra note Approval Memo III, supra note Approval Memo IV, supra note Approval Memo I, supra note 28.

25 2008]NEW YORKAS SEPARATION OF POWERS LABORATORY 761 changes to the FOIL The new legislation inserted a "reasonableness" standard into the dates of receipt of FOIL requests, 21 an expectation that 20 days is a reasonable amount of time to process a FOIL request, 2 2 and an instruction to agencies that unanswered requests within 20 days will be deemed denials The Governor's Approval Memorandum on the legislation explained that these changes are a codification of current case law, and would serve to make the state government "more open and responsive to [its] citizens." 204 The Governor provided a detailed, plain-language explanation of the changes to the old law, including an explanation of the effect of the reasonableness standard on agency receipts of FOIL requests Lastly, while the Governor congratulated the bill's sponsors and supporters, he also expressed regret that the legislature hasn't applied these same reforms to their own FOIL requests Thus, the Governor used his Approval Memo to explain the purpose of the new legislation, its function, and his disappointment in the new law. The New York State Assembly, the body that sponsored the legislation, issued a Memorandum in Support of the legislation This memorandum explained that the purpose of the law is to codify case law, and that FOIL requests should receive a response within 20 days, 20 8 and filled within a reasonable time period according to the circumstances of the request The memo, then, summarized the changes and additions to the current law and justified the reasons for those changes. 210 Substantively, the memo listed circumstances which would extend the "reasonable" time frame for granting a FOIL request. 211 Comparing the Governor's Memorandum to the State Assembly's Memorandum, both purport to achieve the same goal with minor, sub- 199 That is, reading the edited version of the law in McKinney's Session Laws which has notations for text that has been added, struck or vetoed N.Y. Sess. Laws page nos (McKinney). 201 Id. 202 Id. 203 Id. 204 Approval Memo I, supra note Id. 206 The new law requires more timely responses to FOIL requests from state agencies (under the Executive Branch) while not changing the time requirements for FOIL requests to the State Legislature. See L.2005 Ch "Memorandum in Support," 2005 N.Y. Sess. Laws page no (McKinney). 208 Id. 209 Id. 210 Id. 211 Id.

26 762 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 6:737 tie differences. The Assembly's memo is much more thorough when examining the textual and effective changes to the legislation; it uncovers the line-by-line differences between the old law and the new, so that the effect of the new law is clear. 212 The Governor's memo appears substantially similar; it addresses changes, additions and their effect, but delves deeper into legal analysis The Governor's memorandum also mentions an outside party 214 that supported the bill's passage, and also makes a not-so-subtle political jab at the Assembly for applying a law to the Governor's agencies, but not to the Assembly itself. 215 This use of the Approval Memo is particularly interesting because it is substantially similar to the Assembly's memo. Either it was very important for the Governor to recognize the outside, interested party, or it was important for him to chide the Assembly. Effectively, though, because both branches agree that the legislation is simply an effort to codify case law, it is likely to evade judicial review. Even if it did appear for review, the Governor has not said anything substantively different in his description of the law's purpose or result Approval Memo II The second memorandum issued by Governor Pataki in 2005 was upon approval of L.2005 Ch. 177, "A[n] [act] to authorize an extension of time to file a tentative assessment roll in certain towns. '217 The statute, read without the insight of the Senate or Governor's memorandum, authorizes an extension of time for property tax assessments in "certain towns ' 2t 8 and allows those towns to make their own local laws in concurrence with the state law. 2 ' 9 The "certain towns" are defined as being located within a county having a population between 54,000 and 56, The statute further provides that the extension is until June 30, There seems to be no specific reason for the statute, and it 212 Id. 213 Id. 214 "The New York Publishers Association is congratulated for its work in support of the legislation. The publishing group probably stands to profit from more efficient receipt of government documents through free FOIL requests." Approval Memo I, supra note Id. 216 Id N.Y. Sess. Laws page no. 921 (McKinney). 218 Id. 219 Id. 220 Id. 221 Id.

27 2008] NEW YORK AS SEPARATION OF POWERS LABORATORY 763 appears to have limited application because it is unclear to how many counties and towns this statute may apply. 222 Those questions are answered in the Senate's Memorandum in Support 223 and the Governor's Approval Memorandum. 224 The Senate's memo in support of L.2005 Ch. 177, explains that this law is passed to allow "[s]everal of the towns in Fulton County" an opportunity to cancel their completed tax assessments, establish a new date for corrected assessments within the state's time-frame and set-up a local complaint process. 225 The memo memorializes local legislation in the Town of Mayfield within Fulton County seeking special state legislation. 226 This legislation was requested by the local municipality when its leaders noticed irregularities which they believed arose from the county's computer system, along with a "current extraordinary real estate market," leading to inconsistencies. 7 The Governor's Memo answers the same questions regarding the application of this law which the text might leave unclear; the statute is for the benefit of towns in Fulton County in order to extend their time to provide assessments and apportion property tax liability. 228 The Governor's Memo is shorter and less specific than the Senate's memo. The major difference between the Governor's Memo and Senate's Memo is that the Governor's Memo, citing concern from both the Office of Real Property Services and the Division of the Budget, that this law is not the result of good cause for an extension, but rather is an opportunity for towns to conduct re-assessments "in order to avoid shifts in real property tax burdens among taxpayers." 229 The Governor goes on to comment that "[i]t is the assessor's duty under State law to fairly apportion the share of each property owner's tax liability. In approving this bill, it is not my intention to support anything but the fairest and most accurate property assessments"230 (emphasis added). 222 Id. 223 Memorandum in Support of L.2005 Ch 177, New York State Senate (July 12, 2005), 2005 N.Y. Sess Laws page no (McKinney). 224 Approval Memo II, supra note Memorandum in Support of L.2005 Ch 177, 2005 N.Y. Sess. Laws page no (McKinney). 226 Id. 227 Id. 228 Approval Memo II, supra note Id. 230 Id.

28 764 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 6:737 This legislation seems ripe for judicial intervention. If not for grievances with property tax assessments, this legislation would not have even been introduced, let alone passed. While it is likely that this legislation will correct the assessment problems, left uncorrected, assessment disputes would likely still end up in court, and courts will likely look to these memoranda for guidance. 2 3 ' Without the Governor's words stating that this law was passed to avoid tax burden, the courts would be without the Governor's perspective. Leaving aside the hypothetical court case, the Governor's memo argues that the Governor's intent should be considered concurrently with the legislature's intent Approval Memo III The third memorandum issued by Governor Pataki in 2005 was in response to the passage of L.2005 Ch. 246: "A[n] [act] to amend the insurance law, in relation to the confidentiality of certain information pertaining to persons covered by health insurance or a health care plan. ' 233 The changes to the statute's text make certain health insurance information (including contact information) confidential and relieve health insurance providers from criminal liability for maintaining confidentiality when it complies with an order of protection issued by a court. 23 The New York State Assembly's Memorandum in Support clarifies that this statute has been passed so that information about a protected individual can be withheld from the policyholder. 235 The Senate justifies this legislation in order to provide greater protection for victims of domestic violence and abuse. 236 Furthermore, the Senate clarifies in that memorandum that the statute will extend not only to private insurance plans, but also to state and federal health programs. 237 The Governor's Memo recognizes and praises the intent to aid the protection and safety of victims of domestic abuse, but also provides a substantive critique of the bill's effectiveness. 238 The Governor explains 231 Memorandum in Support of L.2005 Ch 177, 2005 N.Y. Sess. Laws page no (Mc- Kinney); Approval Memo II, supra note Approval Memo I, supra note N.Y. Sess. Laws page nos (McKinney). 234 Id. 235 Memorandum in Support of L.2005 Ch 246, 2005 N.Y. Sess. Laws page no (McKinney). 236 Id. 237 Id. 238 Approval Memo III, supra note 28.

29 2008] NEW YORK AS SEPARATION OF POWERS LABORATORY 765 that this legislation will affect regulations already in effect pursuant to the state Insurance Laws and Public Health Laws. 239 The Governor recognizes this as legislation extending a prior law prohibiting discrimination against domestic violence victims within health care and points out a loophole in the legislation which he urges the bill's sponsors to correct Approval Memo IV Pataki's fourth and last Approval Memorandum of 2005 was issued upon his approval of L.2005 Ch. 543: "A[n] [act] to amend the agriculture and markets law, in relation to kosher food and food products. "241 The applicable section of the Agriculture and Markets law establishes standards for certification of kosher foods The amendments eliminated a thirty day pre-certification waiting period, applied to "entities" other than individuals, included a release from misrepresentation liability for kosher food distributors who rely upon manufacturer's representations, and eliminated the requirement that a kosher label be indicated on all advertising As with the other legislation analyzed, the changes to the statute are clear, but the underlying reasons are not. The State Assembly's Memorandum in Support of L.2005, Ch543 explains why these changes were made The Assembly states that these amendments "provide clarifications regarding the certification process, advertising requirements and store signage. ''24 The various changes have rendered moot a 2004 kosher law 2 46 which eliminated problems caused by misrepresentative advertisements that the agriculture and markets law had previously sought to cure. 247 Now, these changes will eliminate the redundancies between the two laws and ensure the implementation of the intent of the 2004 law to provide consumer protection in the sale of kosher foods Id. 240 Id. (The Governor urges the legislature to extend these protections to holders of group health contracts.) N.Y. Sess. Laws page nos (McKinney). 242 N.Y. AGRIC. & MKTs. LAw 201(a) (2004) N.Y. Sess. Laws page nos (McKinney). 244 New York State Assembly, Memorandum in Support, 2005 N.Y. Sess. Laws page nos (McKinney). 245 Id. 246 Kosher Law Protection Act of 2004, 2004 N.Y. Sess. Laws page no. 564 (2005). 247 Id. 248 Id.

30 766 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 6:737 The Governor, in his Approval Memorandum, provides no criticism of the bill itself and has no substantive problem with the changes prescribed The Governor characterizes the amendments within L2005 Ch543 as "technical" and "not objectionable. ' 25 ' He appears to issue this Approval Memorandum to express his continuing disapproval of various provisions that were left out of the 2004 law. 25 ' He wanted the 2004 law to include provisions that provided kosher foods for hospital patients, provided information regarding kosher certification to patrons of restaurants and catering halls, protect specific fraudulent use of certain marks, and establish criminal penalties for intentional misrepre- 25 sentations The Governor had issued an Approval Memorandum expressing the same sentiment in 2004, with hope that the legislature would consider his suggestions, and is now expressing his disappointment that even while the law was being reconsidered, his recommendations were not passed This use of an Approval Memorandum represents the very lack of influence the Governor has in the legislative process and highlights the fact that these memos are not infringing on the legislative power. To the extent that the Governor has issued two approval memos expressing the same sentiment, and has not been able to convince the legislature to accept his propositions-or even elicit a legislative response-implies a lack of gubernatorial-legislative power, rather than an overarching executive gag over the legislature's mouth. 5. Analysis of the Four Approval Memos These four memoranda loosely fit within Professor Kelley's categorization of signing statements as hybrid rhetorical-political statements More likely, though, Professor Kelley would regard them as rhetorical, as they are not structured to garner political support by a constituency The New York State gubernatorial approval memoranda are more like mirror images of the legislative memoranda already issued by the sponsoring legislative chamber. Commonly, approval memoranda demonstrate a slight divergence in legislative purpose. A 249 Approval Memo IV, supra note Id. 251 Id. 252 Id. 253 Approval Memo IV, supra note Kelley Dissertation, supra note 19, at Id. at 46.

31 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 767 much stronger-and unlikely-scenario of constitutional proportions would occur if the judiciary ever chose to exercise statutory interpretation by choosing to review the statute in light of the gubernatorial purpose rather than legislative purpose. This alternative is unlikely because: (a) as exemplified by the four memos discussed above, the differences between the two kinds of memoranda are slight in degree; 256 and (b) purpose is rarely the driving force behind statutory interpretation. However, there are other, clearer reasons why gubernatorial memos do not present constitutional issues. The Governor is not presented with the same legislation that the President receives. Due to New York's single issue rule, the Governor does not receive huge, omnibus pieces of legislation. 257 When the Governor is presented with a piece of legislation to which he objects on constitutional grounds, he has the opportunity to veto it in its entirety. 2 " The President's veto dilemma is greater because he is presented with legislation that includes many provisions concerning various substantive matters, usually tailored by Congress to include sufficient presidential support to avoid the veto. 259 D. Controversial Use and Constitutional Issues While the ABA and some members of Congress agree that the use of presidential signing statements is a violation of the constitutional separation of powers doctrine, 26 it is unlikely to ripen into a constitutional issue in New York. Insofar as the New York and federal constitutions are very similar, it would be a logical conclusion to assume that the same separation of powers issues would arise if governors issued signing statements as presidents have. However, for a few reasons, this same controversy is unlikely. These reasons include: the difference in historical progression, 26 5 the absence of catalogued/reported controversial use of 256 Approval Memo I, supra note 28; Approval Memo II, supra note 28; Approval Memo III, supra note 28; Approval Memo IV, supra note N.Y. CONST. art. 1II, N.Y. CONST. art. IV, See generally JON R. BOND & RIcHARD FLEISHER, THE PRESIDENT IN THE LEGISLATIVE ARENA (Benjamin I. Page, ed., University of Chicago Press 1990) (1990). 260 ABA Report, supra note There has been no showing of gubernatorial intent to abscond legislative power while there is documentation of presidential motive to issue signing statements to increase presidential control over agencies. See Alito Memo, supra note 81; Dellinger Memo I, supra note 19; Dellinger Memo II, supra note 19.

32 768 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 6:737 approval memos by the Governor 262 and that the constitutional differences outweigh the similarities in this context. 263 The New York State Constitution, while influenced by the United States Constitution and generally similar in form, is markedly different in substance and interpretation. There are a number of specifically divergent textual provisions accompanied by divergent constitutional interpretations by the state judiciary. 264 Most important, while the United States Constitution remains essentially intact from the Constitutional Convention of 1787, the New York Constitution has changed dramatically over time. 265 The historically opposite progressions explain differences in constitutional doctrine between the state and federal levels. For the purposes of this Note, the most noteworthy doctrinal difference between the federal and New York Constitutions is the difference in separation of powers doctrine. 266 While the federal doctrine is strictly enforced by the Supreme Court, the New York doctrine has been modified, and essentially rolled back by the voters, legislators, governors and courts. 267 This trend of rolling back separation of powers doctrine within states is typical. 268 One might assume that since the New York Constitution looks similar to the federal constitution, its interpretations would be the same. However, the very structure of the New York executive branch suggests differently. Notably, while the President has the power to appoint his entire administration, the executive power in New York is 262 There is no Hamdan or Bowsher in New York State (the Supreme Court cited a presidential signing statement as authority in Bowsher and used another in a footnote, but not authority, in Hamdan). That is, there is no similar fear that the judiciary will give approval memos more respect than is deserved. That respect is assumed as exemplified by the continued use of approval memos by courts as a source of legislative intent in a non-controversial manner. See supra note In addition to the difference in separation of powers doctrine, there are major legislative differences. Due to legislative rules such as the single issue rule, prohibition against special legislation, and line item veto in New York, any difference of opinion expressed in a gubernatorial approval memo is necessarily minimized. 264 See, e.g., supra notes The U.S. Constitution was written in 1787, ratified in 1788, and now includes 27 amendments. The New York State Constitution has been re-drafted through constitutional convention four times and been amended several times. LIEBSCHUTZ, supra note 145, at Pataki v. Assembly, 4 N.Y.3d 75 (2004). 267 See LIEBSCHUTZ, supra note Robert A. Schapiro, Contingency and Universalism in State Separation of Powers Discourse, 4 ROGER WILLIAMS U.L. REv. 79, 92-94, , (1998).

33 2008]NEW YORK AS SEPARATION OF POWERS LABORATORY 769 divided amongst several elected offices. 269 The New York Governor, Attorney General, and Comptroller, while all members of the executive branch, are elected separately and often represent different political parties.270 This separation within the executive branch creates an intuitive structural that discourages the expansion of power within one person. It is this difference that also prevents the growth of governing theories such as the unitary executive theory Other differences between federal and New York state executive power include: the wider scope of presidential power, 272 New York's executive budgeting scheme 273 and the ease and frequency with which the New York constitution can be and has been amended. 274 These features suggest why one should assume a different expectation of separate powers within New York: because the powers themselves are less separate and more divided. 275 Moreover, executive budgeting supports a different textually-based understanding of 269 The New York State Executive separately elected officers including: Governor, Attorney General, and Comptroller. LIEBSCHUTZ, supra note 145, at Although the offices are currently held by Democrats, there is typically a party split within the executive branch. For example in 2006, the Governor of New York was George Pataki, a Republican, but the Attorney General, Eliot Spitzer and the Comptroller, Alan Hevesi, were Democrats. 271 Without a single elected official leading the entirety of the executive branch, there cannot be a "unitary executive." 272 For example, the Governor of a state has an institutional power to conduct business with neighboring states but the President of the United States has an institutional power to conduct business and affairs with many foreign nations. This difference is between inter-state commerce and international affairs. Furthermore, the U.S. President is Commander in Chief of the Armed Forces whereas the Governor of New York has virtually no military power. 273 N.Y. CONST. art. VII; Pataki v. Assembly, 4 N.Y.3d 75. The Governor of New York has the duty to prepare and propose a budget to the legislature, which the legislature considers and presumptively accepts with a line item veto power over the provisions which are, in turn, subject to the Governor's own line item veto power. 274 While the voters of New York State vote on state constitutional amendments virtually each time there is a general election, the voters of the United States almost never face such an option. The last time a U.S. Constitutional amendment was seriously considered was the Equal Rights Amendment, which failed to pass and enumerate a grant of equal rights to women in the United States. Moreover, the New York State Constitution has been completely re-written five times: the original version was passed in 1777 and has been re-drafted by Constitutional Conventions in 1821, 1846, 1894, and Saratoga v. Pataki, 100 N.Y.2d 801; RONALD ALLEN CARTER, NEW YORK STATE CONSTITUTION: SOURCES OF LEGISLATIVE INTENT (2 ed. 2001). 275 Stated differently, the powers are more internally divided so as to require less inter-branch separation. For example, the Executive is divided into at least three independently elected offices. This diversification quiets the justifications for power separation since it is impossible for one individual to attain the entirety of the Executive power.

34 770 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 6:737 separation of powers in New York: the Governor is constitutionally given more institutionally legislative powers In practice, separation of powers doctrine is very different in states than in the federal government Separation of powers doctrine is one area in which state courts have chosen not to follow the "pragmatic and institutional benefits of following federal...case law." '2 78 Instead, the state courts have developed their own separation of powers doctrine, based on their own state's constitution in the interest of choosing functionalism over formalism The state courts don't rely on strict, textual interpretation of their constitutions to limit powers because those powers already face internal limits. Rather, the state courts promote more fluid, efficient government. 280 The New York Court of Appeals, when striking legislation as violating implied separation of powers, has focused not on text but more loosely on the legislature's policy-making power versus the Governor's policy-implementing power. 281 ' Also, due to executive budgeting, the Governor has additional policy-making power.282 CONCLUSION Presidential signing statements and New York gubernatorial approval memos look like very similar executive pronouncements upon the enactment of legislation into law. However, appearance may be where the similarities end. The New York State Governor has clear, constitutionally and statutorily defined functionally-legislative roles, whereas the President of United States has a formally-defined, constitutionally-constrained role as an executive. Not only are the speakers different; the size, shape, and compromise of the laws are different, the government structures are different, and the context is different. The only extent to which the issuance and judicial use of gubernatorial approval memos can inform the presidential signing statement controversy is to the high- 276 Pataki v. Assembly, 4 N.Y.3d Schapiro, supra note 268, at 92-94, & Id. 279 Id. 280 Id. Compare King v. Cuomo, 613 N.E.2d 950 (N.Y. 1993) with Rapp v. Carey, 375 N.E.2d 745 (1978). Both cases use language of separation of powers but neither does much to elucidate separation of powers doctrinal meaning. Rather, separation of powers appears to be used in contradictory manner to achieve justifiable result. 281 Bourquin v. Cuomo, 85 N.Y.2d 781 (1995). 282 N.Y. CONST. art VII.

35 2008]NEW YORKAS SEPARATION OF POWERS LABORATORY 771 light major differences between the two governments. While this informative inquiry does not quiet the signing statement controversy, it may be useful to see how one state answers constitutional questions more functionally. That, in turn, leaves room to consider whether New York governmental enhancements could provide guidance for a more effective, constitutionally-functional federal government.