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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Attack of the Clones: How state courts’ adoption of SCOTUS’ constitutional doctrinal disputes defeats the purpose of federalism
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Sunday, October 04, 2020
Attack of the Clones: How state courts’ adoption of SCOTUS’ constitutional doctrinal disputes defeats the purpose of federalism
Guest Blogger
Rick Hills The Michigan supreme court has just held that Governor Whitmer’s emergency
order addressing COVID19 risks is not authorized by the 1945
Michigan Emergency Powers of the Governor Act because that statute is
unconstitutional under Article
III, §2 of the 1963 Michigan Constitution.
That provision (which was derived from, but not quite identical to
Article IV, §2 of the 1908
Michigan Constitution and Article II, §2 of the 1850
Michigan Constitution) provides that: The powers of government are
divided into three branches: legislative, executive and judicial. No person
exercising powers of one branch shall exercise powers properly belonging to
another branch except as expressly provided in this constitution. Given the source of this limit in the state constitution, one
might think that the majority opinion, written by Justice Markman, would discuss
in depth state constitutional precedents or say something about the history of
executive power in Michigan. One might
even dare to hope that a state court would discuss practical problems of state
governance peculiar to Michigan – for instance, whether or not the Michigan
legislature, often under the control of a single political party, can easily retract statutory delegations
conferred on the governor despite the governor’s veto. In re Certified Questions,
however, essentially ignored Michigan even while ostensibly discussing Michigan’s
Constitution. The court said nothing at
all about the history of gubernatorial powers in Michigan. It said nothing about changes wrought by the
1963 Constitution. The majority barely cited and never analyzed in depth any
state precedents like Dep’t of
Natural Resources v
Seaman (1976). Instead,
the majority focused almost entirely on a parade of SCOTUS Greatest Hits like Yakus,
Whitman
v. American Trucking, and, most prominently and bizarrely, Justice
Gorsuch’s dissent in Gundy. As I shall explain below, the Michigan supreme court’s exclusive
reliance on federal doctrine to expound its own state constitution resembles
the behavior of state legislatures, insofar as both seem to echo national
partisan ideologies. As David
Schleicher has cogently explained, state legislative elections are today
“second-order elections” in which the candidates for ostensibly state office
win or lose based on the performance of their respective national political
parties. Because voters are completely
unaware of the state-specific stances taken by these low-visibility candidates,
those stances just do not matter to electoral outcomes. The result is that state political parties in
legislatures do not compete on state-specific issues. The second-order
character of state elections has undermined
the familiar normative arguments for federalism, because state legislators
who merely imitate their congressional counterparts cannot advance any of the
ends of federalism such as responsiveness to local preferences, respect for
regional diversity, laboratories of democracy, or promotion of variation to
permit foot voting. Is the Michigan supreme court simply behaving like a clone of
SCOTUS, albeit with a GOP majority?
Consider the evidence. Justice
Markman wrote for a Republican majority over three Democratic dissenters, and
he implicitly endorses a view of the non-delegation doctrine popular with a
wing of the Federalist Society, citing Justice Gorsuch’s dissent in Gundy
three times approvingly (p 3, n.1, p. 24, n.18, and p 41), once with a loving block
quote. Justice Viviano’s concurring and
dissenting opinion explicitly calls for “adopting the approach to nondelegation
advocated by Justice Gorsuch in Gundy v United States” (p 29 of his opinion). By contrast with this focus on contemporary federal
constitutional debates, the majority simply ignores any history or policies
peculiar to Michigan. Justice Viviano’s
dissent and concurrence goes one step further: He incredibly cites an 1886
history of Michigan (page 30 of his opinion) for the proposition that
Michigan’s constitutional drafters were moved by “the same fears of excessive
lawmaking by the legislative branch” as those motivating federal separation of
powers. It is as if Justice Viviano is
oblivious of the fact that the Michigan Constitution of 1850 has been updated
twice – once in 1908, once in 1963 – and that the state constitutional convention of 1961-1962
expressly sought to “provide for a considerably stronger governorship in the
new constitution” (see Willis
Dunbar & George S. May, Michigan: A History of the Wolverine State
(1995), at pages 569-70). Why would Viviano echo Jacksonian small-government ideals from
19th century Michigan to expound a 1963 document written by a
coalition of George Romney’s liberal Republicans and Democrats? Why would he
ignore the obvious purpose of that convention to create a powerful state
government to address the challenges of the civil rights movement? Why would he
ignore the transcript of the convention’s proceedings, conveniently
available online from the University of Michigan which show an intent to
broaden, not restrict the governor’s powers? Because Viviano is not interested in the state constitution: He
is interested in joining in national debate about national constitutional
ideologies framed by Justice Gorsuch that have zero to do with the situation,
legal or factual confronted by state executives. Markman barely disguises his similar ambition to join in this
national ideological conflict, a fight that is completely abstracted away from
anything happening in Michigan. Had this decision not been provided as an
answer to a question of state law certified by a federal district court, it
likely would be reviewable under 28 U.S. C. §1257 under Michigan v.
Long, because there is no “plain statement” anywhere that the decision
rests on a reading of the state constitution
that is independent from the majority’s exclusive focus on SCOTUS
precedents. Indeed, the majority drops a
footnote (page 24, note 18) to explain that, although it shares Justice
Gorsuch’s doubts about the “intelligible principle” test for unconstitutional
delegations, “the ‘intelligible
principle’ test remains as the
dominant expression of what is required to sustain a constitutional delegation
of powers.” Dominant expression of which constitutional doctrine, state
or federal? Obviously, the federal doctrine, the only doctrine that the
majority bothers to discuss. Is there anything wrong with this nationalized approach to state
constitutional law? Consider two
problems, one narrowly doctrinal and one much more urgently practical. First, the Michigan supreme court was responding to a question
about state law certified by a federal district court. The federal judge
presumably does not need the state court’s help in expounding federal constitutional
law. By acting like a clone of a SCOTUS dissent, this opinion added nothing
useful to enrich debates about how state law ought to be construed. Second and much more urgently, the opinion is studiously
oblivious about the distinctive practical and legal problems and opportunities
created by executive power in state governments. Here are three of those distinctive practical and legal issues
that the Michigan supreme court simply ignores. First, there might be less need
for a non-delegation limit at the state level.
State governments tend to have more partisan unity than the federal
government, simply because their populations are more ideologically homogenous.
There are currently
35 “trifectas” among the fifty states in which all three legislative
entities – the upper house, lower house, and governor – are controlled by a
single party. (14 are Democratic, 21, GOP).
In only one of the remaining states (Minnesota) is the bicameral
legislature divided between different parties.
The greater partisan unity of state houses suggests that, if the state
legislatures want to retract broad delegations of power to governors, then they
can do so more easily than Congress can. Furthermore, as Miriam
Seifter has described in an important 2017 article, the state
constitutional context of governors’ powers is completely different from the
federal context. As Wisconsin
Legislature v. Palm illustrates, for instance, state constitutions do
not always subject legislative oversight to limits that bedevil Congress like Chadha’s
ban on one-house “vetoes” of executive actions. Second, if one values accountability in state government, it
might make sense to strengthen rather than erode gubernatorial power. As David Schleicher
has explained, governors have some visibility among voters compared to state
legislators, because voters have some inkling about their governor’s “brand”
But know almost nothing about thei state legislature. To the extent that one wants to give power to an
elected official with a genuinely popular mandate, therefore, it might be wise
not to weaken executive power to take the initiative without specific statutory
authorization. Finally and most importantly, constitutional limits imposed on
federal executive power might make sense only against a backdrop of broad
subnational executive powers that can deal with emergencies that the President
is incapacitated from addressing. Just
as a Congress of enumerated powers presupposes state legislatures with residual
powers, so too, narrow interpretations of presidential powers make sense only
if there are other executives who can pick up the slack in an emergency,
especially when the President’s response to an emergency is inadequate because
of incompetence, partisan disagreement, or constitutional and statutory limits.
COVID19 is a case in point. President Trump’s initial
downplaying of the pandemic and fumbling
response thereafter led to a regulatory vacuum filled by various
gubernatorial responses. Although those
responses have been vexed
by presidential indifference or hostility, they provided the most
comprehensive response to an extraordinary crisis. (As a survey of different nations’ response
to COVID19 by Tom Ginsburg
and Mila Versteeg indicates, the United States is not unique in its robust
use of decentralized responses to address the pandemic). None of these considerations show that Governor Whitmer ought to
be given the powers she claimed under the 1945 EPGA. (Miriam Seifter, again,
has an
excellent criticism of the expansion of gubernatorial powers under state
law). There is are perfectly respectable arguments that state non-delegation
doctrines ought to be stronger than the federal version. The Michigan
Constitution, after all, actually prohibits in its text any “person” from “exercising
powers of one branch … properly belonging to another branch.” The U.S.
Constitution has no such express textual limit – and, as Nick
Bagley and Julian Mortenson argue, Article
I’s vesting clause also might not have any such original purpose. (For a
summary of that debate, see Christopher
Walker’s post at the Yale Journal of Regulation’s website). Those arguments for a more robust state constitutional doctrine,
however, obviously require one to say something about the state constitution. Whatever
Governor Whitmer’s powers ought to be, they should be defined with respect to
the actual legal and factual situation in Michigan, not by ideological slogans
crafted to deal with the very different problem of presidential powers. The indifference of the majority opinion to this need to think
about Michigan-specific law and facts is epitomized, in my view, by footnote 1 of the majority opinion, where
Justice Markman confidently asserts that “[o]ur decision leaves open many
avenues for the Governor and Legislature to work together to address this
challenge and we hope that this will take place.” Maybe that is true. Maybe instead the majority has consigned
Michigan to the paralysis of partisan gridlock.
Whatever the answer to this important question, however, it surely is
not contained in the citation that follows this blithely optimistic statement:
“See Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2145; 204 L Ed 2d
522 (2019) (Gorsuch, J., dissenting).” There is one final question to ask about this attack of the
SCOTUS clones on state constitutional law: Why?
What motivates state supreme courts’ converting themselves into echo
chambers for federal constitutional debates when they are expounding their own
state constitution? For state
legislatures, as David Schleicher has explained, the answer is easy: Voter
ignorance. Voters simply cannot keep
track of the particular positions adopted by individual candidates for state
legislators, so they judge those candidates by the only easily accessible
information they have: The R or D by the candidates’ names on the ballot. Naturally,
candidates for state legislative office tailor their campaigns accordingly,
relying on money, endorsements, and ideas from national groups. Are state judges’ debates about law being nationalized in an
analogous way? Ever since Justice Brennan published his famous
1977 call for state judges to use state constitutions to vindicate
individual rights being rejected by the Burger Court, there has been a tendency
for some state judges to view their own state organic laws as an opportunity to
vindicate at the state level positions that were defeated in SCOTUS. In effect, Brennan was nationalizing state
courts by urging them to serve as a sort of government in exile for positions
that SCOTUS rejected. Justice Brennan was careful to assert that state judges
should “pay[] due regard to precedent
and the policies
underlying specific constitutional guarantees.” He made clear, however, that the
whole point of this exercise was to impose additional constraints on the
state government that the SCOTUS had rejected. Such an attitude naturally
suggests that a U.S. Supreme Court justice’s dissent about the meaning of the federal
constitution is a perfectly sensible starting point for reading one’s state
constitution. The problem with using state constitutions as a one-way upwards
ratchet for ever-greater restrictions on state government, of course, is that
state constitutions cannot truly represent the actual preferences of state
citizens unless the ratchet goes both ways:
It might be that some state constitutions want to confer more,
not fewer, powers on their officials than the U.S. Constitution confers
on the federal government. With regard to the non-delegation doctrine, in particular,
it might be that, in her sphere, Michigan’s governor should have more, not fewer,
powers than the U.S. President has under Article II of the U.S. Constitution. In any case, it should be obvious that one cannot even begin to ask
whether or not the state constitution confers broader or narrower powers on state
executives unless one actually bothers to read the state constitution. Simply
serving as an echo chamber for national debates in SCOTUS ignores the problems
that state constitutions are intended to solve. What causes state judges to abdicate their role as interpreters
of their state’s particular organic law? Are state supreme court justices
affected by some electoral incentive analogous to those that make state
legislators little clones of congresspersons? Do they look for endorsements or
applause from national organizations like the Federalist Society or the
American Constitution Society? Or is it
simply easier to digest one set of doctrinal signals from SCOTUS than dig up
and think about one’s own state’s specific constitutional history? I do not know. But this
opinion from the Michigan supreme court is the sort of attack of the clones
that, I hope, is not spreading among state judges as fast as COVID19 is
spreading among the rest of us. Roderick M. Hills, Jr. is William T.
Comfort III Professor of Law at New York
University Law School. You can reach him by e-mail at roderick.hills@nyu.edu.
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