The year is 2020, and Andrew Cuomo is a media darling. Cuomo, New York’s Democratic governor, is being talked about as a presidential contender on the back of his high-profile media hits against then-President Donald Trump as the COVID-19 pandemic ravaged New York City. Following in the tracks of fellow bigwig politicians like Rudy Giuliani and Cuomo’s predecessor, Eliot Spitzer, Cuomo sought to personally capitalize on the attention, signing a $5 million book deal for a book titled American Crisis: Leadership Lessons from the COVID-19 Pandemic.
As it turns out, Cuomo couldn’t even be bothered to write the book by himself, turning to executive staffers to research and draft Cuomo’s account of his “leadership” during the pandemic. Cuomo insisted that they “volunteered their time,” to the extent that such an offer could be voluntary considering the coercive nature of a situation in which the author is also your boss and the governor of New York. However, a State Assembly inquiry into the affair revealed that only some employees had used paid time off to cover their “volunteer time,” and instead worked on Cuomo’s book while on the clock for the state. As a result, in 2021, the Joint Commission on Public Ethics (JCOPE) revoked its approval of Cuomo’s book deal, and ordered him to forfeit some $5 million in profits from the book to the state.
Cuomo challenged the fine in court, convincing both state trial and appellate courts to rule that the structure of the Commission on Ethics and Lobbying in Government (COELIG)—the successor body to the JCOPE—was unconstitutional, and that its enforcement action against him was thus void. On Tuesday, January 7, the New York Court of Appeals (the state’s highest court) heard oral argument in the state’s appeal, and Cuomo’s case relies heavily on the same sort of tactics that conservatives have been using to gut the federal administrative state. Politicians attacking government agencies for their own personal enrichment isn’t just for Republicans anymore!
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The irony is that Cuomo actually created JCOPE with the State Assembly in 2011. Prior to JCOPE’s creation, there was no single body in New York that could investigate public corruption within both the legislature and executive. At the time, Cuomo said that the new board would be a “truly independent ethics oversight over all public officials” with “robust enforcement powers.” To incorporate some degree of independence from any particular branch, six JCOPE members were appointed by the governor and lieutenant governor, while eight others were appointed by legislative leaders from both majority and minority parties.
Over the course of JCOPE’s 11-year existence, no one—and certainly not its architect, Cuomo—challenged its constitutionality. However, JCOPE did come under serious scrutiny for inappropriate influence by Cuomo’s office and for its voting mechanism, which made it incredibly difficult to start investigations or impose penalties on the executive. Recognizing that Cuomo’s “truly independent ethics oversight” board was anything but, Governor Kathy Hochul and the Assembly created COELIG to replace JCOPE in 2022. Calling JCOPE “irreparably broken,” they added a few additional measures—such as changing the voting mechanism so executive appointees can’t spike investigations into the governor’s office on their own—to try and ensure COELIG’s independence.
Now, despite having devised a board with almost the exact appointment mechanism as COELIG’s, once it started investigating his conduct, Cuomo is suing to eliminate COELIG. His argument is that because the governor does not appoint all members of the board and cannot remove members at will, its structure violates the separation of powers doctrine.
Hypocrisy aside, the legal argument makes some sense in the context of separation of powers cases at the federal level. Among the conservative legal movement’s more successful strategies for reducing agency power relies on a narrow conception of separation of powers. Conservative activists used this strategy most successfully in their recent attempt to eliminate the Consumer Finance Protection Board in Seila Law v. CFPB, in which U.S. Supreme Court held that a similar mechanism for appointing the CFPB’s director was unconstitutional. In Seila Law, the justices decided that the appointments issue was severable from the rest of the organization’s structure, leaving the CFPB otherwise intact. But Cuomo, citing this case, wants the New York Court of Appeals to go even further, pushing for the elimination of COELIG altogether.
New York’s separation of powers doctrine, drawn not from the text of the state constitution but rather inferred by the constitution’s creation of “three coordinate and coequal branches of government, each charged with performing particular functions,” is a little different than the federal doctrine. High court rulings in New York have consistently found that separation of powers analyses must be done in a “context-specific manner focused on practical realities on the ground”—so rather than consulting a bunch of dictionaries like the U.S. Supreme Court might, the New York Court of Appeals has said that a board’s purpose and the involvement of the governor’s office in its creation are relevant to its constitutionality. Despite state courts’ usual focus on functional analysis in separation of powers cases, Cuomo focused on the U.S. Supreme Court’s formalist approach, which allows for essentially no overlap between executive and legislative powers.
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It remains to be seen whether the New York Court of Appeals will hold the line for Cuomo. While the court under former Chief Judge Janet DiFiore was seen as being generally in the tank for the former governor, the court under new Chief Justice Rowan Wilson has exhibited more of an independent streak. But regardless of the outcome, it is jarring to see a former blue state governor borrowing from the conservative playbook to eliminate government agencies when they become inconvenient for his personal profits. As Cuomo plans his political comeback after resigning in disgrace in response to sexual harassment allegations, his case against COELIG is a perfect example of the same imperiousness and disregard for the public interest that earned him so many enemies in the first place.
Ultimately, the right’s attacks on functioning government have provided unscrupulous actors with a script to undermine agency action. It is disappointing—if not surprising—to see a Democratic politician who once said “I am the left,” and who wrote a book about “leadership lessons,” try to take down the only independent ethics agency in his state to save his own ass. But as the second Trump administration looms, with multiple billionaire hangers-on jockeying for position and policies favorable to their businesses, these kinds of self-serving actions may become a greater part of our national future.
