Reviving the Pocket Veto in New York State

By: Bennett Liebman, Government Lawyer in Residence

Governor Andrew Cuomo in January and February of 2015 pocket-vetoed three contentious bills from the 2014 legislative session.[1] He took no action on these bills, and they de facto did not become law.

Under the New York State Constitution, when the legislature is in session, the governor has ten days to approve or veto a bill. If the governor takes no action within the ten day period, the bill becomes law.[2] In terms of legislative adjournments, the Constitution states, “No bill shall become a law after the final adjournment of the legislature, unless approved by the governor within thirty days after such adjournment.”[3] So where the legislature has adjourned, the governor has the ability to have a pocket veto. If the governor takes no action on bills pending approval before the governor after the legislature has adjourned, those bills do not become law and are, thus, pocket vetoed.

In New York State since 1976, the legislature has not adjourned. It only takes recesses. “The thirty-day rule, it would seem, cannot be constitutionally applied because the State Senate has not adjourned sine die since 1976.”[4] So how could these bills be pocket-vetoed in an era where there are no adjournments?

The answer would seem that to be that at the end of the calendar year, the legislature as a matter of course is adjourned. The State Constitution states,” The political year and legislative term shall begin on the first day of January; and the legislature shall, every year, assemble on the first Wednesday after the first Monday in January.”[5]  That language should end the existence of the prior legislature. Additionally, the houses when they first assemble on the first Wednesday will generally declare that the legislative session for the previous year has concluded. So there is a theoretical basis for continuing the ability to maintain a pocket veto. Each year in January, the previous legislature, by operation of the Constitution, and through its own actions has finally adjourned.

But even if a pocket veto is still legally authorized, is there any public policy reason why it should be utilized?  The point of the pocket veto was that there might be times when the governor (especially with the logjam of legislation passed at the conclusion of a legislative session) did not have the time to fully consider the legislation. In such cases, the legislation would not become effective unless signed by the executive. In the pre-1976 era, hundreds of bills were sent by the legislature to the executive, necessitating executive action within a confined thirty day period. A pocket veto is simpler for the governor, for, unlike an ordinary gubernatorial veto, a pocket veto does not require a formal statement of the governor’s objections to the bill.[6]

The pocket veto was used significantly in the 19th century. It was said, “As a rule, Governors have confined their memorandums of disapproval to the important bills and made what is called a ‘pocket’ veto of the rest – that is they have let them die a peaceful death without any obituary notice.”[7] Yet the pocket veto fell out of style in the 20th century. For much of the 20th century governors saw no need for the pocket veto.   In fact from the time of Governor Herbert Lehman in 1933 until the governorship of Mario Cuomo,[8]  there were no pocket vetoes. Governors were praised and lauded themselves for not resorting to pocket vetoes.[9]

Governor Pataki, however, restored used the pocket veto and used it on 63 occasion during his twelve years in office.[10] Pocket vetoes were not used by Governors Spitzer and Paterson, and were not used until 2015 by Governor Andrew Cuomo.

Now, unlike the pre-1976 days, bills that pass the legislature are regularly held by the legislative leaders in order to provide a regular and orderly flow of bills to the executive This insures that the executive staff is not overwhelmed with the burden of reviewing hundreds of bills within a ten day or a thirty day period after the legislature recesses for the summer. This also provides the executive staff with a considerable amount of time to vet all the passed legislation with the public and interested parties. The 2014 bills that were pocket vetoed in 2015 were passed by the legislature more than seven months before the vetoes. A pocket veto of these bills cannot be justified by any notion that the executive did not have sufficient time or resources to consider the legislation. Instead, the only thing that the pocket veto accomplishes is to provide the governor with the ability not to state his or her objections to the legislation to be vetoed. If we are concerned about transparency in government, the pocket veto should not be used.

But while there are legitimate concerns about the pocket veto, equal attention should be paid to the problems inherent in the ability of the legislature to hold back and time the submission of passed bills to the executive for approval. Why should bills take seven months after their passage to be acted on by the governor?

The ability to time the submission of bills to the governor also permits a considerable amount of political gamesmanship. For example:

  1. If the legislature and the governor are not getting along, the legislature can submit controversial and/or difficult bills to the governor for consideration just before Election Day, thereby jamming up the governor.
  2. Conversely, if the legislature and the governor are completely cooperating, the legislature can submit extremely popular bills to the governor for consideration just before Election Day thereby promoting both the legislature and the governor.
  3. If the legislature and the governor are getting along, the legislature can submit controversial and/or difficult bills to the governor for consideration after Election Day, thereby letting the governor off the hook on these issues.
  4. If the legislature and the governor are getting along, the legislature can submit certain bills – on which the governor might not wish to say anything on the record- which will reach the governor after the legislature has adjourned. This will enable the governor to pocket veto the legislation.

There may be no reason why all legislation should be acted on thirty days after the legislature informally leaves Albany, but the current situation under which the legislature gets to pick and choose when to submit bills to the governor is full of potential political chicanery and can unduly delay the democratic process.

[1] The pocket vetoes for bills S7801  (relating to police discipline) and S5584A (purporting to provide a payment for  the New York Racing Association to the Nassau County Off-Track Betting Corporation) became effective on February 2, 2015. The pocket veto for S. S870C (authorizing the city of Buffalo to adjudicate traffic infractions) became effective on January 29, 2015. All these bills were controversial in their respective fields, especially the police discipline bill which pitted police unions against localities and civil rights groups.

[2] State Constitution Article 4, Section 7.

[3] Id.

[4] Steven D. Koczak, Winning Battles and Losing Wars: Governor George E. Pataki and the Executive Veto, Doctoral Dissertation 2013 Pg. 161. See also Richard A. Givens, “Primer on the State Legislative Process: How It Differs from Federal Procedure,” New York State Bar Journal, Vol. 57, Issue 3 (April 1985), Pg. 13.

[5] State Constitution Article 13, Section 4.

[6] State Constitution, Article 4, Section 7 supra note 2.  For regularly vetoed bills, the governor “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.”

[7] “The Veto Power,” Amsterdam Daily Democrat and Reporter, September 27, 1893.

[8] Governor Mario Cuomo used the pocket veto once during his tenure and issued a veto memorandum in that instance. Veto 29 of 1989. See generally Koczak, supra note 4 at Pg. 171,

[9] See “The Veto Power,” supra note 6 for Governor Flower. “Vetoes by Lehman Kill 40% of Bills, New York Times, April 18, 1938. “Although the Constitution permits a pocket veto at the end of the thirty day period, Mr. Lehman has never followed that practice.”

[10] Koczak supra note 4 at Pg. 171.