The blackout apparently delayed more than just commuters trying to make their way home Thursday night. The corporation counsel for the City of New York, Michael Cardozo, asked yesterday for a day’s extension to file the city’s defense of the deal struck by the state Legislature back in May, over Governor Pataki’s veto, to turn $2.5 billion of city debt into $5.1 billion of state debt. Given the performance at oral arguments in the case on Thursday, in the Supreme Court of the State of New York at Albany County, before Justice Louis Brenza, it seems the city needed the extension to regroup. After all, basically admitting that the statute you are defending violates the New York State Constitution on its face, as the city did last week, is hardly a winning argument. Asking further that the court simply ignore the error, and give the Legislature credit anyway, like an overindulgent teacher, is even less winning — especially as it subverts the entire idea of representative democracy.

The trouble all stems from shoddy lawmaking. In the budget that the Legislature approved this spring, a number of measures were concocted to “bail out” New York City. One of these was for the state to take over $2.5 billion dollars of city debt left over from Gotham’s last fiscal crisis in the mid-1970s. Though the city was but five $500 million payments away from being out of that hole, the solons at Albany offered to swoop in and assume the city’s debt at a cost to the state of $170 million a year, for 30 years, bringing the cost to $5.1 billion over the life of the payment plan. The hitch is that the Legislature never actually voted to appropriate the $170 million for the first year of the deal, or to submit the future payments to the annual appropriations process, all of which is required under the New York State Constitution — the idea being that the citizens of New York ought not be bound by longterm debt, such as a 30-year bonding scheme, without their direct approval. Mr. Cardozo admitted on Thursday that the law was likely flawed, but asked the judge to see it as an oversight on the part of the Legislature, rather than a violation of the state’s Constitution.

To our ears, it sounds at least plausible that the Legislature acted unconstitutionally by accident; but if that is what happened, they ought to be allowed to write and pass a new law, not to have a judge fix it with red pencil in hand. Only in that way would the will of the people’s representatives truly be exercised. Who is to say that the Legislature actually intended to make this bond deal subject to annual appropriations, especially when they passed language saying specifically that annual appropriations “shall not apply” to this particular refinancing of Municipal Assistance Corporation bonds? This is a particularly odd argument coming from the city’s — and by extension the mayor’s — lawyer, when the mayor and his staff have been running all around town proclaiming their unwillingness to accept a deal subject to the vagaries of New York’s Constitution.

According to the brief filed on behalf of the governor, the director of the New York City Office of Management and the Budget, Mark Page, criticized an alternate proposal made by the governor for the state to assume city debt by saying: “[Under the Governor’s proposal,] any State payment in a future year is subject to appropriation by the State in that year. The MAC refinancing enacted last spring addressed this problem by mandating an annual payment.” In an August 9 New York Times article, anonymous “city officials” are reported as criticizing the same plan for leaving them “at the mercy of the legislature and the governor.” On August 11, The New York Sun quoted the mayor as expressing this very concern: “The governor’s plan is not guaranteed, so we’d have to go back to the Legislature every year.”

While we can’t say what was going through the heads of legislators hammering out this deal three months ago, it does seem that those in closest contact with those legislators, the city officials asking for the bailout, were perfectly aware that a bit of circumvention was going on here. However, it is not the Legislature’s intent, but the words it adopted into law, that is important — contrary to Mr. Cardozo’s assertion at oral arguments, reported by the New York Times, that “it’s [the court’s] job to decide what did the Legislature mean.” The law the Legislature passed seems to be a blatant violation of NewYork’s Constitution, by Mr. Cardozo’s own admission. If the Legislature wanted to fix the law to make it constitutional, it could have done so already; a “clean up” bill was proposed before the Legislature adjourned for the summer that would have steered around the larger constitutional potholes. The measure failed. Given the city’s weak case so far, it’s a marvel Mr. Pataki has expressed interest in compromise at all. He may wish to save face with the city. For defending our state’s Constitution, his prospects look brighter already.