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Recently, with the hubbub surrounding the expiration of the law authorizing rent control in New York City, Governor Cuomo issued a statement with this content, as quoted in the Daily News.

The letter, obtained by the Daily News, states that despite any temporary lapses, the new rent laws once approved will be retroactive to June 15 — so “your legal obligations under existing leases and under the passage of the new rent stabilization program will not expire on that day.”

The governor directed landlords to continue to follow the current law until a new law is enacted and any changes are fully understood. The legislative session is scheduled to end Wednesday and Cuomo has threatened to bring lawmakers back to Albany into special session every day if they adjourn without at least extending the existing law.

So, how can a governor tell people that a law, which expired, will continue to be enforced (it's no longer current law), and how can the New York State legislature "backdate" a law, given Article 1, Section 10 of the US constitution?

3

There is a relevant Q&A here about how ex post facto is defined in the United States.

Not all law is about crime, and that includes NY rent control laws; violating them does not lead directly to a criminal prosecution, hence a sufficiently strict definition of ex post facto cannot apply to them. And such a sufficiently strict definition has been the explicit one since 1798, when the Supreme Court ruled in Calder vs. Bull ("law that makes an action done before the passing of the law, and which was innocent when done, criminal [...] law that aggravates a crime, makes it greater than it was [...] law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime", etc.).

Notice that Article 1 Section 9 prohibits Congress (i.e., the Federal Government) from doing exactly the same thing, so if ex post facto refers to any kind of law, then there could not be any retroactive laws passed in the United States, period. However, the Supreme Court has apparently already set further, more recent, precedents, making it clear that this rule does not apply to tax law.

I would assume in this case the intention is to retroactively extend the old law, i.e., if the old law expired on the 15th and the extension passes on the 20th, that extension will be retroactive to the 15th. If the extension then continues until a new law is in place, there will be no time period under which one or the other did not apply. Despite the wording in the news article, I do not think the intention is to make the new law retroactive, only the extension of the old one, for the simple reason that the legislature would never agree to pass such a brand new law later and no matter what it contains say it will be retroactive back to the original expiration date of a law it replaces even after they already extended that until there was a new law. That is borderline non-sensical. The Daily News blurb certainly makes it sound like it might be that way, but I think this is a bit of intentional obfuscation -- the way in which a partial quote is used in the first paragraph is indicative, and the Daily News is, well, the Daily News.

  • Good stuff, but a partial answer, since it's possible, however unlikely, that there may never be another rent control law, and thus it's not clear to me how Cuomo is saying the old law will still be enforced. – dsolimano Jun 17 '15 at 19:48
  • I've added a last paragraph clarifying what I think is going on in this particular case. – goldilocks Jun 17 '15 at 20:17
  • What I mean to say is, it's possible that there will never ever ever be a backdated extension of the old law, rent control could come to an end. In that case, it's not entirely clear to me what's going on. Could Cuomo enforce the existing rent control for a week, a month, a year, waiting for the legislature to act? – dsolimano Jun 18 '15 at 12:34
  • If your question is really, "Can a State Governor alone dictate law by fiat?" I would presume the answer is no, although I don't see anyone claiming that he intends to try. The article says he wants legislature in session until the issue is resolved, but it is not clear what the resolution would be. Reading more news it seems they have passed a 5 day extension and will either pass another extension until the next session (?) or not, in which case Cuomo will have failed to do what he said he was going to do. Seems unlikely though, since both sides have advocated some form of law. – goldilocks Jun 19 '15 at 11:19
  • "The governor directed landlords to continue to follow the current law until a new law is enacted" - it sounds very much like he is doing just that. – dsolimano Jun 19 '15 at 12:43

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