I. The History and Intent of Executive Budgeting

Prior to 1915, the state operated under a legislative budget system in which -- as with most legislation -- the Legislature proposed bills, in this case appropriation bills, and presented them to the Governor for his signature or veto. These bills were based on budgetary estimates provided to the Legislature by the various executive departments. The Legislature, however, had neither the staff nor the resources to exercise appropriate oversight in scaling back departmental wish lists. Instead, departments submitted their estimated expenditures without any review by an authority outside the department, resulting in very high estimates ( see Journal, 1915 NY Constitutional Convention, at 390). Further, because funds were appropriated piecemeal in numerous different bills, no comprehensive budget plan was ever formulated or presented to the public ( see id. at 392). In addition, by 1915 it had become apparent that -- because members of the Legislature were beholden to their districts rather than to the state as a whole -- legislative budgeting produced wasteful pork barrel spending without any responsible assessment of relative budget priorities.

In reaction, a reform movement arose to adopt an executive budgeting process. The scheme is a simple one. The Governor -- as an elected official answerable to the entire state -- would in the first instance have responsibility for collecting departmental estimates and proposing appropriations. Free as he[8] was from the limitations faced by the Legislature, it was thought that the Governor, who had direct supervisory control over administrative departments, could better determine whether the estimates proffered by his department heads were reasonable, and could send his officers back to the drawing board to revise their estimates if he found them overblown. In this way, a realistic and comprehensive assessment of the financial needs of government could be had. Then, once proposed as a package, the budget would be reviewed by the Legislature, which would be restricted in its ability to increase spending beyond the levels proposed by the Executive after his careful deliberation.

Specifically, the Legislature could reduce spending for a particular item of appropriation, or forego funding of the item altogether, but it could not increase the amount of money for any given item in the Governor's appropriation bills. Since the spending caps had already been approved by the Governor who proposed them, the appropriations would become law immediately upon passage by the Legislature. Further, if the Legislature sought to fund additional programs or services not provided for in the Governor's budget, it could add new items of appropriation to the appropriation bills, each of which -- not having already been approved by the Governor -- would be subject to his line- item veto.

Similarly, if the Legislature thought it prudent to increase funding for an item submitted by the Governor beyond his proposed cap, it would have to wait until the entire statewide budget had been acted upon, and only then could it propose a single-purpose appropriation bill containing the spending increase, which bill would be subject to veto. Of course, in that any such increased spending had to be presented in a single- purpose bill, the veto of such a bill would effectively constitute a line-item veto. Thus, through a combination of realistic oversight, consolidated responsibility and political pressure, executive budgeting promised to produce a more "scientific budget" ( id. at 387) and reduce the inefficiencies that had led to wild increases in state spending. Although an initial attempt at an Executive Budget Amendment failed in 1915, it was adopted in 1927.

Executive budgeting was not, however, meant to transfer significant lawmaking authority from the Legislature to the Executive. "[T]he separation of powers 'requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies'" ( Saratoga County Chamber of Commerce, Inc. v Pataki, , 100 NY2d 801, 821-822 [2003], quoting Bourquin v Cuomo, , 85 NY2d 781, 784 [1995]). Rather, the scheme of executive budgeting was aimed at centralizing in one person responsibility for framing out the budget:

"The executive budget does not deprive the Legislature of any of its prerogatives. . . . It simply makes the Governor who represents the whole State and not a single assembly or senate district, responsible in the first instance for collecting, consolidating, reviewing and revising the estimates of the several departments of government and also for presenting to the Legislature a complete plan of expenditures and revenues -- a plan which in his judgment will best meet the needs of the administration of which he is the head. . . . The executive budget would not add to the Governor's power over finances" (Report of Reconstruction Commn to Governor Alfred E. Smith on Retrenchment and Reorganization in the State Government, Oct. 10, 1919, at 316-317).

Executive budgeting was not meant to give the Governor power to require that his fiscal plan be adopted; to deprive the Legislature of its ability to initiate legislation; or to reallocate to the Executive responsibility for legislative -- as opposed to budgetary -- policymaking:

"Nor is there the slightest force to the claim that the proposed system would give undue power to the Governor. It would add not one iota to the power that he now possesses through the veto of items in the appropriation bills. Whereas now that power is subject to no review and thus may be used as an instrument of reward or punishment after the legislative session is over, the proposed system would deprive him of his veto as to budget items and would thus compel him to use his influence in advance, in the open, under the fire of legislative discussion and the scrutiny of the entire State. It would thus be the Legislature which would have the final word" (Report of Comm on State Finances, Revenues and Expenditures, Relative to a Budget System for the State, Doc No. 32, Aug. 4, 1915, at 21).

Plainly, the idea behind executive budgeting was simply accountability for state expenditures, missing under the old system:

"[T]he forces of reaction which have opposed this important reform rest their objections on an entirely false foundation. We constantly hear in argument against the executive budget, that it will deprive the direct representatives of the people of a proper control over the purse strings of the State. This argument is not based on fact. The executive budget does not in the slightest degree decrease the power of the Legislature. It provides only for a more responsible method for the exercise of that power. There is nothing new or revolutionary about a proposal placing upon the Executive himself the duty in the first instance of certifying to the Legislature the amount required for the fixed and definite expenses of maintenance of the various departments of the government. There is no reason that I can see why there should not be put upon the Executive the further responsibility of explaining his proposals to the Legislature in detail. There is also no reason why the Legislature should make additions to these sums or indulge in new activities until provision has first been made for the absolutely necessary expenses of government. . . . Opposition to the executive budget upon the theory that it lessens the power of the Legislature is nothing but misrepresentation for political purposes. Every proposal for its establishment, so far made, has left the Legislature absolutely free to pass any appropriations it will and to increase or decrease any appropriations it may desire to, after provision has been made for the support of government as comprehended in the bill proposed and supported by the governor" (1925 Ann Message of Governor Alfred E. Smith, at 75-76).

The Court ignores this history when it concludes that executive budgeting effected a transfer to the Governor of lawmaking power over the terms and conditions of spending, such that the Legislature is prohibited from amending the Governor's policy-laden budget bills -- which is the practical effect of affirmance here.[9]

II. The Constitutional Scheme

The Executive Budget Amendment is currently codified in article VII of the New York Constitution -- entitled "State Finances." Under the existing system, the Governor -- after receiving estimates of the upcoming year's expenses from the various executive departments ( see NY Const, art VII, § 1) -- must annually

"submit to the legislature a budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year and all moneys and revenues estimated to be available therefor, together with an explanation of the basis of such estimates and recommendations as to proposed legislation, if any, which the governor may deem necessary to provide moneys and revenues sufficient to meet such proposed expenditures. It shall also contain such other recommendations and information as the governor may deem proper and such additional information as may be required by law" (NY Const, art VII, § 2).

By contrast, estimates of the financial needs of the Legislature and the Judiciary must, after being transmitted by those branches to the Governor, be included in his executive budget without revision ( see NY Const, art VII, § 1). Further, "[a]t the time of submitting the budget to the legislature the governor shall submit a bill or bills containing all the proposed appropriations and reappropriations included in the budget and the proposed legislation, if any, recommended therein" (NY Const, art VII, § 3).

Critical to this appeal, "[t]he legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose" (NY Const, art VII, § 4). "Such an appropriation bill shall when passed by both houses be a law immediately without further action by the governor" ( id.).

By contrast, the Governor retains the right to veto any portions of the legislation that he has not previously approved. Thus, appropriations for the Legislature and Judiciary -- which must be submitted by the Governor without revision and thus without his prior approval ( see NY Const, art VII, § 1) -- as well as "separate items added to the governor's bills by the legislature," shall be subject to his approval (NY Const, art VII, § 4). Specifically, the Governor is granted the power to veto legislation he disapproves, subject to a two-thirds override by both Houses of the Legislature, as well as the power of line- item veto with respect to bills containing several items of appropriation of money.

This constitutional scheme thus comprises a careful system of checks and balances in which the Governor has initial legislative authority over state finances, and in which the Legislature, while it can always make the determination to spend less, is forbidden from spending more in the Governor's appropriation bills. Because the Governor has taken on the legislative function in this regard and, by definition, pre- approved of the budget caps contained in legislation he has proposed, he cannot veto his own appropriation bills once passed by the Legislature. But since he can review and veto all other bills, the Constitution does not restrict the Legislature's untrammeled legislative authority with respect to those bills. It is with respect to this basic premise that I part company with the Court.

My Colleagues -- in an endeavor to answer the question of what the Governor may properly include in an appropriation bill -- are concerned about the viability of fixing the line between "items of appropriation" and "proposed legislation." I agree that the line is difficult to fix. Given that, the better question may well be not what the Governor can do in an appropriation bill, but what the Legislature can do in response.

The Constitution restricts the Legislature's power to alter the Governor's proposed appropriation bills, but not to alter other proposed legislation. This distinction makes sense because it is only an appropriation bill that becomes law upon passage -- without further review by the Governor. All other proposed legislation is subject to the Governor's veto and thus need not be insulated from the Legislature's power to amend in order to ensure that no bill becomes law without the participation of both branches.

The Constitution distinguishes between items of appropriation -- properly included in an appropriation bill -- and other legislation, which ought to be proposed elsewhere. An appropriation bill as defined by section 4 is a bill "containing all the proposed appropriations and reappropriations included in the budget" within the meaning of section 3. By contrast, a nonappropriation bill contains the other "proposed legislation, if any, recommended" in the executive budget (NY Const, art VII, § 3) -- consisting in turn of proposed laws that the Governor "may deem necessary to provide moneys and revenues sufficient to meet [the] proposed expenditures," as well as proposals for legislation implementing "such other recommendations and information as the governor may deem proper" (NY Const, art VII, § 2).

In short, the Governor may propose what he likes, although the Constitution clearly contemplates that those of his proposals that do not constitute items of appropriation of money should go elsewhere than in an appropriation bill. "If the Legislature may not add segregation provisions to a budget [i.e., appropriation][10] bill proposed by the Governor without altering the appropriation bill, . . . it would necessarily follow that the Governor ought not to insert such provisions in his bill. He may not insist that the Legislature accept his propositions in regard to segregations without amendment, while denying to it the power to alter them" ( People v Tremaine (252 NY 27, 50 [1929] [" Tremaine I"]).

"Items of appropriation" are provisions that "show what money is to be expended, and for what purpose" ( People v Tremaine, 281 NY 1, 5 [1939] [" Tremaine II"]). Other subjects do not belong in an appropriation bill, as evidenced by the Governor's own submission of "nonappropriation bills" as part of his budget. In general, nonappropriation bills "contain programmatic provisions and commonly include sources, schedules and sub-allocations for funding provided by appropriation bills, along with provisions authorizing the disbursement of certain budgeted funds pursuant to subsequent legislative enactment" ( Silver I, 96 NY2d at 535 n1). Put differently, such bills "detail[] the utilization of [already] appropriated funds or propose[] changes in the operation of certain programs" ( id. at 535). Further, tax legislation, specifically delineated in section 2 as the subject of other "proposed legislation," as well as provisions that affect multiple items of appropriation or effect general changes in state law, indisputably belongs in a nonappropriation bill.[11]

Other state courts explaining the distinction between items of appropriation and other provisions -- the very issue before us -- have reached similar conclusions: "It can be said then that the term 'item of appropriation' contemplates the setting aside or dedicating of funds for a specified purpose. This is to be distinguished from language which qualifies or directs the use of appropriated funds . . ." ( Jessen Assoc., Inc. v Bullock, 531 SW2d 593, 599 [Tex 1975]). "An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It is something different from a provision or condition" ( Commonwealth v Dodson, 176 Va 281 296, 11 SE2d 120, 127 [1940]). Similarly, programmatic provisions that merely affect the allocation of appropriated funds do not constitute items of appropriation, because they do not increase the amount of state expenditures. Such a provision

"does not set aside money for the payment of any claim and makes no appropriation from the public treasury, nor does it add any additional amount to funds already provided for. Its effect is substantive. Like thousands of other statutes, it directs that a department of government act in a particular manner with regard to certain matters. Although as is common with countless other measures, the direction contained therein will require the expenditure of funds from the treasury, this does not transform a substantive measure to an item of appropriation" ( Harbor v Deukmejian, 43 Cal 3 1078, 1089-1090, 742 P2d 1290, 1296 [1987]).

Simply put, "state courts have generally . . . excluded from the definition of appropriation authorizations and other substantive legislation that create spending programs but do not actually appropriate funds" (Richard Briffault, The Item Veto in State Courts, 66 Temp L Rev 1171, 1201 [1993]). For an "item of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law which happens to be put into an appropriation bill" ( Bengzon v Secretary of Justice of Philippine Islands, 299 US 410, 414-415 [1937]).

III. Distortion of the Constitutional Scheme

My Colleagues conclude not only that the Governor may propose changes to substantive law in connection with his budget, but also that the Legislature is forbidden from altering such proposals by any means -- either directly or indirectly. Thus, even those policymaking provisions placed in a nonappropriation bill but relating to a proposed appropriation -- effectively, any subject properly included in a budget bill -- are held unalterable under section 4, despite its plain language restricting the Legislature only from "alter[ing] an appropriation bill." Indeed, under the Court's rule, the Legislature is effectively prohibited from amending a nonappropriation bill in any way, since such a bill -- by its very nature -- cannot contain items of appropriation subject to reduction or striking, but must nevertheless relate to some item in an appropriation bill.

The Governor contends that any programmatic policy conditions he attaches to an appropriation are simply more specific identification of the item for which he appropriates money. If this is so, the Legislature -- limited in its authority to alter appropriation bills other than by reducing or striking items -- must either accept the conditions imposed by the Governor or refuse to fund the program or service to which it is attached, however essential or desirable. According to the Governor, the Constitution limits him only insofar as the policy proposed must relate to a particular appropriation in the bill and "be limited in its operation" to that appropriation (NY Const, art VII, § 6).

That is virtually no limitation at all.[12] Nearly everything in government requires funding. And since the degree of budgetary itemization is beyond review, the Governor can always broaden the scope of his proposed appropriations to the point where a generally applicable policy condition would "be limited in its operation" to a particular appropriation -- as I believe happened here. For example, as conceded at oral argument, the Governor could not, as part of an appropriation for 500 police cars, require in an appropriation bill that every police car in the state have bulletproof glass, but could impose such a requirement attached to an appropriation for police departments. Further, as also conceded, the Governor could under his theory -- in order to save money -- suspend worker safety laws or the minimum wage at every construction project built using appropriated funds throughout the state. Although the Governor may well not propose such unpopular examples, there are according to his argument few limits to what he could propose, and the Legislature would be foreclosed from affecting the proposal except by eliminating the projects altogether.

My Colleagues recognize that this is in theory "troublesome" (Opinion at 21) but nonetheless hold that what the Governor sees fit to include in an appropriation bill is properly placed there and incapable of amendment by the Legislature. Although the plurality opines that it may be "possible" to write legislation that does not belong in an appropriation bill (Opinion at 22), it gives no guidance as to when such limits will have been reached, noting only that no such transgression occurred here and that, even if one were to occur in the future, the courts might in any event be precluded from resolving the political question thereby presented ( see id. at 28-29).

But I cannot, for example, agree that the Governor may, in the course of proposing his annual appropriations for public schools, include in his bill -- as he did for the first time in 2001 -- 17 pages of substantive revisions to Education Law § 3602, which in turn contains the legislatively enacted formula by which funds are allocated to school districts across the state, or that he can thereby present the Legislature with the take-it- or-leave-it choice of either accepting his substantive proposals in their entirety, or simply refusing to fund the public schools. This detailed proposal significantly "stray[ed] from the familiar line-item format" (one of the criteria identified in the concurring opinion at page 5).

I agree that "[t]here could be no objection on constitutional grounds if the bill, instead of reciting the formula, named every school district in the state and specified the sum that would go to each -- in other words, if the authors of the bill had applied the formula themselves and written the result into proposed legislation" (Opinion at 30). But what my Colleagues fail to recognize is that, in doing so, the Governor would be required to apply the formula codified in Education Law § 3602 (McKinney's Cons Laws of NY, Book 16, Education Law § 3602, 2004 Pocket Part, at 3-94) -- for that is the duly enacted and binding law of the state. Because allocation according to the existing formula is thus mandatory unless Education Law § 3602 is rewritten or notwithstood, the Governor could not apply a different formula were he to calculate and propose itemized appropriations for each district.[13] As the Court additionally recognizes, it has been the "history and custom of the budgetary process" ( see Concurring op at 5) -- until 2001 -- not to include the policy choices codified in Education Law § 3602 in gubernatorial appropriation bills ( see Opinion at 11).

Because choices pertaining to the statewide allocation of resources among school districts involve policy determinations concerning the relative importance of, for example, special education; gifted and talented programs; employment preparation; summer school programs; success at class-size reduction; and support services for troubled and disabled children, these choices have until 2001 been understood as fundamentally legislative. Indeed, school funding has been among the most intensely negotiated issues ( see e.g. H. Carl McCall, An Agenda for Equitable and Cost-Effective School Finance Reform, Oct. 1996, at 31 ["School aid is most often one of the last issues to be resolved in the budget negotiations"]; Too Far on Bargaining, Rochester Democrat & Chron., Dec. 23, 2002, at 8A ["New York's governor . . . and state lawmakers traditionally prefer to glide through the legislative session without taking up the explosive and nearly intractable problem of public-school funding and the formula that supposedly drives the money train"]).[14]

Nor can I agree with the Court's conclusion regarding the Governor's 2001 appropriation for the State Museum and State Library, which proposed moving the Museum and Library from the Department of Education to a nonexistent "Office of Cultural Resources" -- effectively modifying existing Education Law §§ 232 and 202, which provide that the State Museum and Library are departments of the University of the State of New York, in turn governed by the Board of Regents. Twenty-two of the Legislature's 37 single-purpose appropriation bills were enacted to restore oversight and control of the State Museum and Library to the Education Department.

As we have recently made clear, the "choice of which agency shall regulate an activity can be as fundamental a policy decision as choosing the substance of those regulations" ( Saratoga, 100 NY2d at 823 [emphasis in original]). The Governor contends that, because he proposed an appropriation of money for the State Museum and Library, conditioned on their transfer to the new agency as proposed in his nonappropriation bill, the Legislature was limited to either accepting his conditions, or defunding the Museum and Library altogether.

My Colleagues deny any significance to the Governor's inclusion in his appropriation bill of proposed funds for the operation of these institutions within the new agency on the ground that the Governor's assumption that legislation creating the agency would be passed "proved ill-founded" (Opinion at 33). If by this they mean that the Legislature remained free -- as in my view it did -- to appropriate money for the State Museum and Library but within the Education Department, I certainly agree. But I cannot reconcile this conclusion with the reasoning underlying the remainder of the writing. For if the Legislature is foreclosed from enacting single-purpose appropriations for a purpose similar to a gubernatorial proposal -- particularly a proposal that has been stricken or rejected -- as well as from amending the Governor's appropriations indirectly or adopting conditions different from those he has proposed, how could the Legislature -- having rejected the programmatic conditions attached to the appropriation in the nonappropriation bill -- reauthorize the Museum and Library?

The Governor's claim that the intent of the Executive Budget Amendment was to grant him authority to change the substantive laws of the state is unsupportable.

In 1927, after the dangers of legislative budgeting had been identified and debated, the Governor was for the first time given the power to propose legislation directly -- but only in appropriation bills. To be sure, the Governor could recommend other legislation in his executive budget, but the power to actually introduce bills obliging action into both Houses of the Legislature -- a power he has in no other context than the budget -- was limited to appropriation bills. Only in 1938 was section 3 amended to give the Governor the additional authority to introduce other "proposed legislation" recommended in his executive budget. This amendment was adopted primarily to make the Governor responsible for submitting tax legislation, rather than merely recommending it. "Believing that the revenue side of the budget is of equal importance with the expenditure side, the committee feels that any bills to carry into effect legislation affecting the revenues of the State which the Governor may propose should have the same dignity and importance as his appropriation bills, and all should be submitted directly by the Governor and treated as budget bills" (Report of Comm on State Finances and Revenues of New York State Constitutional Convention, Doc No. 3, July 8, 1938, at 3).

Thus, my Colleagues' conclusion that the 1915 and 1927 framers of executive budgeting intended to grant the Governor broad power to make legislative policy beyond mere fiscal policy, or to propose -- and prevent alteration of -- changes to the Consolidated Laws of the state, is unfounded and inconsistent with the constitutional budgeting scheme adopted by the framers.

Under the Constitution, the Legislature is entitled to respond to the Governor's policy proposals in any of three ways. First, as we explained in Tremaine I, a condition placed on the expenditure of funds is itself "an item or particular, distinct from the other items of the bill, although not an item of

appropriation" (252 NY at 50). As such, it is subject to striking in an appropriation bill under section 4.[15]

Second, the Legislature may amend a nonappropriation bill, either by altering policy conditions proposed in the Governor's appropriation bill, or by proposing new conditions altogether.[16] Contrary to the conclusion of my Colleagues ( see Opinion at 15-17), nothing in section 4 "prevents the Legislature from itemizing appropriations or from enacting general laws, apart from the Governor's budget [i.e., appropriation] bill, providing how lump sum items of appropriation shall be segregated, subject to the veto power of the Governor" ( Tremaine I, 252 NY at 49). The Legislature always "can accomplish its objective to restrict or allocate the expenditure of appropriated funds by enacting separate bills" (1982 Ops Atty Gen No. F 82-5, at 22). Nor does New York State Bankers Assn., Inc. v Wetzler (81 2 98 [1993]) hold otherwise ( see Opinion at 17). There we held only that the Legislature could not alter an appropriation bill other than as restricted by section 4, even with the consent of the Governor. Bankers imposes no limitation on legislative amendment of nonappropriation bills.

Third, while the Legislature may not increase the dollars proposed in a gubernatorial appropriation bill, the Legislature may later -- after the comprehensive budget submitted by the Governor has first been addressed -- pass a single-purpose appropriation bill that proposes to spend the same amount of money, or more, with new, different, or no conditions. Of course, both branches may well agree, as the fiscal year progresses, that additional funds are needed. Such funds must be proposed by the Legislature, because the Executive has no constitutional power to introduce appropriation bills after the budget cycle. But if the Governor disapproves of the additional spending, or of the conditions, he may veto the bill.

With each of these options forbidden, however, the Legislature will be effectively precluded from proposing or influencing policies affecting state-funded programs for which the Governor has proposed an appropriation. To cite one example, if the Governor proposed money for housing the homeless, the Legislature could neither specify which shelters should receive the funding, nor pass legislation requiring that state-funded shelters apply specific criteria, nor direct that certain programs be offered within the shelters. Or if the Governor proposed funding for prisons, the Legislature could not direct that surveillance cameras be installed, or that additional security measures be taken. Or if the Governor proposed an appropriation for police departments, the Legislature could not direct that police officers undergo counterterrorism training.[17] In effect, the Legislature loses its ability to legislate in any area directly or indirectly relating to an appropriation. That is a distortion of the constitutional scheme of executive budgeting.

IV. The Line-Item Veto

In Silver I, we held that the question whether the Governor was empowered to exercise a line-item veto against substantive amendments enacted in nonappropriation bills in 1998 was justiciable, and returned the case to the lower courts for a decision on the merits. Today, the Court declines to decide the question, reasoning that because the Legislature acted unconstitutionally in amending the Governor's nonappropriation bills, the question whether the Governor acted constitutionally in line-item vetoing those amendments is academic.

Silver v Pataki is a declaratory judgment action brought by the Speaker of the Assembly and the Senate challenging the Governor's action. As an affirmative defense, the Governor argues that the Legislature's actions in amending his bills were unconstitutional, thus permitting him to exercise his line-item veto. Even if the Constitution precluded the Legislature from altering nonappropriation bills -- which it does not -- this circumstance would not relieve the Court of its responsibility to decide the question presented. For the Governor can prevail in his affirmative defense only if he establishes two elements: that the Legislature acted unconstitutionally, and that the Constitution permits him to exercise a line-item veto to strike unconstitutionally enacted provisions. The Court ignores the second element.

As a legislative power, the veto is an exception to the separation of powers and in derogation of the general plan of state government. It may therefore be exercised only when authorized by the Constitution, and the language conferring it must be strictly construed. Indeed, New York's constitutional history reflects a determination not to give the Governor the greater power to veto "parts," "sections," "portions" or "provisions" of any bill, because this would result "in making the Governor the affirmative and sole law-making power of the State, instead of being the negative" (2 Proceedings and Debates, 1867 NY Constitutional Convention, at 1112 [Del. Folger]; accord id. at 1117 [Del. Church] ["it will make the Governor a part of the affirmative legislative power of the State"]).

"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. . . . All the provisions of this section [governing procedures for reconsideration by the Legislature of gubernatorial vetoes], in relation to bills not approved by the governor, shall apply in cases in which he or she shall withhold approval from any item or items contained in a bill appropriating money" (NY Const, art IV, § 7).

Thus, the Constitution authorizes the use of the line-item veto only to strike items from appropriation bills -- that is, bills containing several items of appropriation of money -- as a check on government spending. There is simply no authority for exercise of the line-item veto against provisions contained in nonappropriation bills, as occurred in 1998. Nor can the Governor strike related provisions without striking the item of appropriation itself, for the Constitution is clear that it is "the appropriation" that shall not take effect upon exercise of a line-item veto.

Further, the Governor may not exercise a line-item veto in a manner that would otherwise have been impermissible simply because he believes that the provisions he strikes are unconstitutional. The Constitution recognizes no such exception. The separation of powers, moreover, does not permit the Executive to assume the judicial function of reviewing the constitutionality of laws passed by the Legislature and then acting to void them beyond his explicitly conferred power of general veto.

Tremaine I does not say otherwise. There, after determining that certain provisions attached to an appropriation bill by the Legislature were unconstitutional, we explained that "[s]o far as the appropriations themselves are concerned, they may be separated from the unconstitutional parts of the statutes and are, therefore, the law of the State. . . . The Legislature may not attach void conditions to an appropriation bill. If it attempts to do so, the attempt and not the appropriation fails" (252 NY at 45). The Governor, however, misreads our severability analysis -- essential to formulating the scope of our corrective action after judicial review -- as authorizing the Executive himself to effectively sever purportedly unconstitutional portions of statutes from the remainder, without any judicial review. The Constitution grants him no such authority.

Since the courts below agreed that the provisions he struck were indeed unconstitutional -- and voided the very provisions he had purported to strike -- his vetoes, and therefore his ability to veto, were given full effect. Thus, if the Governor line-item vetoes an unconstitutional provision in a nonappropriation bill, his endeavor to render the provision void (by veto) will succeed if challenged on appeal, thereby effectively upholding the Governor's authority to veto unconstitutional provisions in nonappropriation bills -- the very question that the Court declines to answer.

V. Conclusion

The executive budgeting scheme set forth in our Constitution is not the system my Colleagues sanction today. For 70 years no Executive has exercised the legislative power the Court, by its affirmance, now recognizes as a template for the future. The Court rejoins that the Legislature is not deprived of its ultimate authority because it retains the option to reject a Governor's appropriations in their entirety and cease to fund essential services of government. That the system permits stalemate is unconvincing proof that it requires it.