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

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