State Institutions and Democractic Opportunity

The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level. And seeing a national problem, reformers understandably seek to bolster democracy through large-scale federal solutions. Although their efforts hold popular appeal, they face strong institutional headwinds. As scholars have extensively documented, the Senate, the Electoral College, and the Supreme Court today are skewed against majority rule. Despair grows. This Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a chance to rule on equal terms. Utilizing these opportunities can help stave off democratic decline in the short term and build a healthier democracy in the long term. But these opportunities are not guarantees, and they are in danger. State majoritarian institutions today face active threats from antidemocratic forces. These attacks—on state courts, ballot initiatives, and elected executives—have largely flown under the radar or been noticed only in isolation. Their proponents, moreover, have sought to disguise them as good-governance reforms, exploiting the muddled dialogue surrounding democracy generally. After highlighting the vital role of state institutions in American democracy, the Article provides a holistic account of the attacks they face today. It then offers a theoretical framework for distinguishing appropriate constraints on popular majorities from those that should be out of bounds—because, for example, they would install minorityparty rule. The Article suggests steps that state courts, state officials, and organizers can take to protect state institutions. At the highest level, it shows how a richer theory and discourse surrounding state institutions can advance both state and national democracy

States, Agencies, and Legitimacy

Scholarship on the administrative process has scarcely attended to the role that states play in federal regulation. This Article argues that it is time for that to change. An emerging, important new strand of federalism scholarship, known as administrative federalism, now seeks to safeguard state interests in the administrative process and argues that federal agencies should consider state input when developing regulations. These ideas appear to be gaining traction in practice. States now possess privileged access to agency decisionmaking processes through a variety of formal and informal channels. And some courts have signaled support for the idea of a special state role in federal agency decisionmaking. These developments have important implications for administrative law and theory. In particular, they bear on the paramount question of administrative legitimacy-the decades-long effort to justify the exercise of lawmaking power by unelected administrators in our constitutional democracy. A robust state role in the administrative process, this Article shows, is in tension with the models of legitimacy that have come to serve as administrative law\u27s North Star. Whereas the two reigning legitimacy models alternatively prize (1) centralized presidential control to ensure responsiveness to majority preferences, and (2) apolitical application of expertise, state input raises the specter of regional factionalism and home-state politics. Two types of solutions could alleviate this tension: reforming state involvement in the regulatory process, or updating legitimacy models. The Article concludes by charting both courses-identifying potential reforms and sketching possibilities for a new understanding of administrative legitimacy that would better accommodate the state role

Understanding State Agency Independence

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened under the Trump Administration. In contrast, there is virtually no systematic scholarly attention to the theory or practice of agency independence in the states. This Article begins that study. Surveying historical developments, judicial decisions, and legislative enactments across the country, it shows that state agency independence is an inexact, unstable, and variegated concept. Whereas federal courts treat independent agencies as a distinct legal category, state courts tend to eschew categorization in favor of contextual holdings. Moreover, despite the common notion that states’ plural-executive structure cements independence, these rulings just as frequently undermine it. State legislatures, for their part, revisit independence frequently, often in the wake of partisan realignments. And their creations are diverse, combining a range of vectors of insulation in different arrangements. The result is that there is no single meaning of state agency independence even within a state, and rarely a strong norm surrounding it. States’ legislatively driven, bespoke approach to independence offers insights for scholars of both state and federal institutional design. The state approach may yield better-tailored and more democratic arrangements. But it also displays raw partisanship, and the combination of weak norms with strong governors may stack the deck against independence. The state approach also raises deeper questions for public law: What are the costs and benefits of allowing the rules of the game to be consistently up for grabs? There is no formula for weighing these considerations beyond the context of any individual dispute, but this Article provides a launching pad for their sustained exploration

State Constitutional Rights and Democratic Proportionality

State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions. This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect many more rights, temper rights with attention to communal welfare, include positive rights that identify government action as necessary to liberty, and emphasize rights required to sustain democracy. These distinctive founding documents, prizing individual and collective self-determination alike, require their own implementation frameworks — not federal mimicry. Although state constitutions differ markedly from their federal counterpart, they share features with constitutions around the world that courts adjudicate using proportionality review. Perhaps unsurprisingly, practices associated with proportionality already appear in some state decisions. Synthesizing and building on these practices, this Article argues for democratic proportionality review as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian self-government, and it recognizes state courts as democratically embedded actors, not countermajoritarian interlopers. After explaining how democratic proportionality review operates, the Article sketches some implications for contemporary debates about abortion, voting, occupational licensing, and more

Countering the New Election Subversion: The Democracy Principle and the Role of State Courts

Among the threats to American democracy, the most serious may also be the most banal: future elections will be compromised by quiet changes to the law. State legislators across the country have introduced bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have created new criminal offenses that undermine professional election administration. While power-shifting legislation, audits, and criminal penalties advertise their fealty to law, they threaten the franchise and electoral integrity, as well as nonpartisan, expert election administration. Because of its ostensibly legal, even legalistic, character, however, the new election subversion complicates ordinary judicial countermand. Federal courts, in particular, have foreclosed many of their own means of responding to such measures. This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ founding documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we explain how state courts might apply the democracy principle to address the new election subversion

The Democracy Principle in State Constitutions

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few. This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted—and have been repeatedly rewritten and amended— to empower popular majorities. In text, history, and structure alike, they express a commitment to popular sovereignty, majority rule, and political equality. We shorthand this commitment the democracy principle and describe its development and current potential. The Article’s aims are both theoretical and practical. At the level of theory, we offer a new view of American constitutionalism, one in which the majoritarian commitment of states’ founding documents complements the antimajoritarian tilt of the national document. Such complementarity is an unspoken premise of the familiar claim that the federal Constitution may temper excesses and abuses of state majoritarianism. We focus on the other half of the equation: state constitutions may ameliorate national democratic shortcomings. At the level of practice, we show how the democracy principle can inform a number of contemporary conflicts. Reimagining recent cases concerning electoral interference, political entrenchment, and more, we argue that it is time to reclaim the state constitutional commitment to democracy

Showcase Panel III: The States and Administrative Law

2018 National Lawyers Convention Transcripts “We live in a system where regulators make the rules, investigate alleged violations of the rules, and then adjudicate those violations before Administrative Law Judges. If the matter ever gets to court, courts generally defer to the agency on questions of law “and fact.” As a result, agencies know that their regulations are unlikely to face challenge and, if they are challenged, will likely be upheld. In this system, critics argue, the predictable result is more and more irrational regulations and enforcement actions. Arizona has first-of-its-kind legislation to “reverse” Chevron and to instruct courts to give no deference to agency decisions on questions of law. On a related note, Arizona also passed the Right to Earn a Living Act, creating a cause of action to challenge occupational licensing decisions under a heightened standard of review. Some contend that the result of this new law has been significant in that regulators are reviewing and improving rules, or repealing them outright, rather than face litigation. Could these measures serve as a model other states and the federal government in reducing the size and scope of, and otherwise improving, the Administrative State?” Speakers:Prof. Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center, Fordham University School of Law Prof. Chris Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law Prof. Miriam Seifter, Professor of Law, University of Wisconsin Law School Hon. Jeffrey Sutton, United States Court of Appeals, Sixth Circuit Moderator: Hon. Michael Scudder, United States Court of Appeals, Seventh Circuit Credit: The Federalist Society, https://fedsoc.org/conferences/2018-national-lawyers-convention#agenda-item-showcase-panel-iii-the-states-administrative-la

Understanding State Agency Independence

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened under the Trump Administration. In contrast, there is virtually no systematic scholarly attention to the theory or practice of agency independence in the states. This Article begins that study. Surveying historical developments, judicial decisions, and legislative enactments across the country, it shows that state agency independence is an inexact, unstable, and variegated concept. Whereas federal courts treat independent agencies as a distinct legal category, state courts tend to eschew categorization in favor of contextual holdings. Moreover, despite the common notion that states’ plural-executive structure cements independence, these rulings just as frequently undermine it. State legislatures, for their part, revisit independence frequently, often in the wake of partisan realignments. And their creations are diverse, combining a range of vectors of insulation in different arrangements. The result is that there is no single meaning of state agency independence even within a state, and rarely a strong norm surrounding it. States’ legislatively driven, bespoke approach to independence offers insights for scholars of both state and federal institutional design. The state approach may yield better-tailored and more democratic arrangements. But it also displays raw partisanship, and the combination of weak norms with strong governors may stack the deck against independence. The state approach also raises deeper questions for public law: What are the costs and benefits of allowing the rules of the game to be consistently up for grabs? There is no formula for weighing these considerations beyond the context of any individual dispute, but this Article provides a launching pad for their sustained exploration