My colleague, Michael Johnson, upon hearing that the Legislature is considering the possibility of amending Gov. David Paterson’s budget extender bill to divest it of the furlough language, posed the question: Is that even legal?

For an answer, I turned to a widely-quoted expert on the subject of state government: My father, Dr. Gerald Benjamin, director of the Center for Research, Regional Education and Outreach (CRREO) at SUNY New Paltz.

So, Benjamin Sr.’s answer: It depends.

The current consensus, based on the high court’s decision in Pataki v. Silver, is “no”. But scholars, being scholars, say there’s some gray area here.

My father, citing an argument raised by wonk-in-arms, the Rockefeller Institute’s Bob Ward, said the real question is whether extender bills are true budget bills, which the Legislature clearly does NOT have the power to amend, or something else entirely.

“Ward’s argument is that the governor has already submitted budget bills and now he’s submitting something else; it’s an interesting argument and flies in the face of the conventional wisdom,” Benjamin said.

“If that’s true, then why is the Legislature rolling over? Maybe because they want to pass the furloughs and blame the governor?”

The Assembly majority leadership was very displeased by the outcome of Pataki v. Silver and this could provide a back-door opportunity to re-litigate that case.

However, even if the Legislature won, Benjamin said, the decision would only apply to extenders and not the budget itself – and the legal fight likely wouldn’t improve the already acrimonious climate at the Capitol, which is contributing to the ever-later state budget.

This is all very fascinating, but, as it turns out, merely academic.

The possibility that the Legislature would go this route was very short-lived. Both the Senate and Assembly attorneys took a look at this and decided they didn’t, in fact, have the power to amend the extenders, according to Capital Tonight’s Kaitlyn Ross and NY1′s Erin Billups.

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