NY Legislature has no power to authorize casinos

First US Constitutional Convention

First US Constitutional Convention

 

Memo from Cornelius Murray, Esq.    20 June 2013   sent earlier today to journalists interested in New York State government

Re Upstate New York Gaming Economic Development Act of 2013

 

Art I section 9 of the Constitution CURRENTLY states that, except for circumstances not pertinent here, no gambling shall be AUTHORIZED or allowed and the Legislature is mandated by the very same provision in the Constitution to “pass appropriate laws to prevent offenses against any of the provision of this section.”

Yet the bill that will most likely pass the Legislature tomorrow does exactly the opposite. It purports to authorize such gambling with an elaborate regulatory scheme.  To be sure, the last paragraph states that it will become effective only if and when the Constitutional Amendment passes.  But it hasn’t, and until it does, the current sitting Legislature can’t pass a bill to take effect in the future on the supposition that the Amendment will be approved by the voters in November.  Don’t get me wrong.  I’m fully cognizant of the fact that a Legislature can pass bills to take effect in the future and does so all the time.  But that occurs where the Legislature has the power to act on a given subject to begin with.  Here it has no such power.  The Legislature can get into the business of authorizing and regulating casino gambling only after the People authorize it to do so, which won’t/can’t happen – if at all—until November.  If and when it does, then the Legislature would have the power to act.  But it can’t put the proverbial cart before the horse.  The Legislature has no power to act to authorize gambling currently prohibited by the Constitution.  It is – at least I hope it is – axiomatic that a Legislature can only exercise such power as the People give it.

Imagine if you will that the Legislature in its infinite wisdom (don’t laugh too hard) decided that slavery ought to be reinstated and passed laws now to regulate it which would take effect in the future once the 13th Amendment to the US Constitution and the corresponding prohibition in our State Constitution were repealed.

Cornelius Murray, Esq.  was lead counsel for the plaintiffs in Dalton v. Pataki

http://www.governor.ny.gov/sites/default/files/documents/GPB-33-UPSTATE-MEMO.pdf is a 4-page outline of Program Bill 33.  The whole bill is more than 220 pages

The picture shows the first US Constitutional Convention, not a NYS one.  credit Robinphillips.blogspot.com

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