By Antonia Spano
June 26, 2024, 9:00 AM

Constitutional ambiguities can cause damaging instability, especially during a crisis. As originally drafted, the U.S. Constitution’s provision on presidential succession and inability was unclear in several ways. It complicated situations where presidents died or became disabled—until Congress finally resolved the flaws in the Succession Clause in response to President John F. Kennedy’s assassination.

The 25^th Amendment entered the Constitution in 1967, and it inspired many states to fix the shortcomings in their state constitutions’ treatment of gubernatorial succession. But New York was not one of those states.

Article 4, Section 5 of the New York Constitution provides that the powers and duties of the governor transfer to the lieutenant governor when the governor is “unable to discharge the powers and duties of the office.” It might seem simple and straightforward, but there are critical ambiguities and gaps. What does it mean to be “unable”? Who determines if the governor is unable? What if the lieutenant governor is also unable?

Procedures are essential to ensure that a successor has a legitimate claim to power and that the state has a capable governor.

The 25^th Amendment clearly outlines procedures for the president to voluntarily declare himself unable as well as a way for the vice president and Cabinet (or an “other body” created by Congress) to declare an inability on the president’s behalf.

Presidents have declared themselves unable in the past when they have undergone anesthesia, giving power to the vice president and promptly taking it back when they awoke. So far, the involuntary procedure has never been invoked.

There are examples of executive inability at the state level—including as recently as last summer. In July 2023, New Jersey Governor Phil Murphy was away in Italy when Lieutenant Governor Sheila Oliver was serving as acting-governor. Oliver was admitted to the hospital, and the governor’s communications director announced that the governor’s powers had been transferred to the next person in the line of succession, the Senate president.

It’s unclear who determined that Oliver was “unable.” The press release did not say. Oliver passed away the next day, and Murphy returned from Italy as soon as he could to take back power.

This was an unanticipated tragedy, and almost nothing is publicly known about what went on behind the scenes. Like New York, New Jersey’s constitution does not provide a process for determining gubernatorial inabilities. Predetermined procedures and transparency are critical to ensuring public confidence.

Thirty-one states have established procedures for gubernatorial inability since the 25^th Amendment’s ratification. New York should delay no longer. It is critical that the state amend its constitution to establish procedures to declare the governor unable to serve, similar to those in the 25^th Amendment. The New York State Bar Association’s gubernatorial succession recommendations, published last year, effectively adapt the 25^th Amendment procedures to New York. In a report that I co-authored, Fordham Law School’s Rule of Law Clinic endorsed and elaborated on NYSBA’s recommended inability procedures. The NYSBA and Rule of Law Clinic recommendations are now incorporated into a proposed constitutional amendment that New York State Senator James Skoufis introduced in May 2023.

First, there should be a voluntary inability process. The governor should be authorized to declare herself unable to serve and transfer gubernatorial powers to the next official in the line of succession.

Through a simple written declaration, the smooth transfer of power can take place when the governor is aware of a current or impending inability, like when she needs to undergo surgery or other medical treatment that could impair her capacities. This establishes clear legal legitimacy for the lieutenant governor to take the reins.

There should also be an involuntary inability process. An inability committee should be empowered to declare the governor unable through a written declaration. Should the governor fall ill or become incapacitated suddenly, this committee would be prepared to act.

This committee should include the lieutenant governor, the attorney general, the comptroller, and six executive department heads confirmed by the Senate. Populating the committee with allies of the governor is critical to avoid political gamesmanship, while the inclusion of elected officials adds democratic legitimacy to the process.

The six executive department heads should be the leaders of the Division of Criminal Justice Services, Department of Health, Department of Human Rights, Department of Labor, Office of Mental Health, and Department of State. These department heads are best-suited for the job because they have access to professionals and resources that would assist inability determinations. They also lead large departments that work closely with the governor’s office, potentially giving them insight into the governor’s condition.

Should there be a dispute between the governor and the committee over the governor’s inability, a final determination should be made by the Legislature. Many state constitutions provide for the state’s highest court to make the final determination of inability. But the judiciary should not have a role in the determination process, in case the court needs to decide legal questions raised during the process. Additionally, the Legislature is best equipped to conduct hearings and participate in the fact finding necessary to make this determination.

These procedures still leave one ambiguity: the meaning of the word “unable.” But not defining inability is a feature, not a flaw. Defining inability could unintentionally exclude a contingency that would merit a transfer of power.

The broad parameters of the constitutional language give future decision makers flexibility. This amendment would provide the state with the framework it needs to be prepared for any situation.

A constitutional crisis can lead to fracturing of already fragile alliances, billions of tax dollars wasted, and a period of uncertainty that can be detrimental for the people of New York. It is critical that the Legislature begin the process of amending the state constitution and add these procedures before it is too late.