Deep Dive Episode 217 – The Separation of Powers, From Washington to Sacramento
Are state governors subject to the same separation of powers restrictions as the federal president?
Expanding on a Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event featured experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.
In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo explored those distinctions, examined how they affect the latitude and options state and federal executives have, and debated the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and Narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
On April 13, 2022, the Regulatory Transparency Project hosted a virtual event titled “The Separation of Powers – from Washington to Sacramento.” The following is the audio from that event. We hope you enjoy.
Jack Derwin: Hello, and welcome to this Regulatory Transparency Project virtual event. My name is Jack Derwin, and I’m Assistant Director of RTP at The Federalist Society. Today, we are very excited to host a panel discussion titled “The Separation of Powers – from Washington to Sacramento.” To discuss this topic, we have an all-star panel of legal experts who bring a range of views to the discussion. I’ll keep these intros very brief now. But feel free to visit RegProject.org to view their full bios.
David A. Carrillo is Lecturer in Residence and the founding Executive Director of the California Constitution Center in University of California, Berkeley, School of Law. Before academia, Dr. Carrillo was Deputy Attorney General with the California Department of Justice, Deputy City Attorney in San Francisco, and Deputy District Attorney in Contra Costa County. And, additionally, he was a commercial litigation associate in private practice.
Luke A. Wake is an Attorney at the Pacific Legal Foundation, where his work has a particular focus on environmental, land use, and constitutional issues. Previously, Luke was a Senior Staff Attorney at the NFIB Small Business Legal Center.
John C. Yoo is Emanuel S. Heller Professor of Law, Co-Faculty Director of the Korea Law Center, and Director of the Public Law & Policy Program at University of California, Berkeley, School of Law. Professor Yoo has held a number of positions across government, including at the Department of Justice and at the U.S. Senate Judiciary.
And our moderator today, Braden Boucek, is Director of Litigation at the Southeastern Legal Foundation. Prior to his current role, Braden served as Vice-President of Legal Affairs at the Beacon Center of Tennessee, and as an Assistant U.S. Attorney for more than nine years.
After discussion between our panelists, we’ll go to audience Q&A, if time allows. So please be thinking of any questions you’d like to ask our speakers. And, finally, I’ll note that, as always, all expressions of opinion on today’s program are those of the speakers. With that, Braden, the floor is yours.
Braden Boucek: Thanks, Jack. And thanks for the warm introduction. For those who are unfamiliar, this is a discussion of separation of powers that arise pretty organically from a prior discussion we had on emergency powers during the pandemic. If you’ve not watched it yet, it’s available on the Regulatory Transparency Project’s website.
So let me just begin by orienting everybody. During the pandemic, when people started considering the breadth of government’s emergency powers, a term that started, refreshingly, started to pass from people’s lips anew was “separation of powers.” But, of course, the term “the government” is misleading. Because, under our federalized system of government, we have various layers of government at the local, state, and federal level.
So let me begin by asking Professor Yoo, just very basically, are state governors subject to the same separation of powers requirements as the federal government? And, in practice, how closely do federal and state governments resemble each other?
John C. Yoo: Thanks for having me. And I’m glad we’re really doing this panel. And really wonderful to be with two people I’ve had the pleasure of working with; Luke, who’s doing a great job for the Pacific Legal Foundation, where I’m on the board; and David Carrillo, who we just can’t get rid of at Berkeley. He just keeps getting degrees. And then he had to run a Center here. We try — he won’t go away. So —
David A Carrillo: A lot of that’s your fault, John.
John C. Yoo: This is really a pleasure for me to join them. So I would say there’s nothing in the Federal Constitution that requires there to be any certain kind of separation of powers arrangement in state constitutions. And the only sort of outer boundary would be the republican form of government requirement, which — as, probably, we all know — the Supreme Court really has never interpreted and has basically said is a political question up to Congress.
And so it’s no surprise, for example, we see states that don’t have a unitary executive, which — where people, for example, in California, elect multiple executive branch members, which creates a problem, because you can’t remove, the governor can’t remove them.
And then another interesting thing — which I don’t know if we’re going to explore today, but it just came up in class the other day — is, one wonders, could a state have a parliamentary system, which no state — if you think about it, every state copies, basically, the federal separation of powers with a judiciary, legislature and executive branch. And they’re separate.
What if a state said, “We want to elect our governor in the legislature? Which was, in fact, what most of the states did between 1776 and our Constitution’s founding. So that’s just a short — I think that might be the outer limit. It would be interesting if a state tried to have a parliamentary system with no independent executive. Beyond that, I don’t think the Republican Form of Guarantee Clause really puts a boundary, other than what Congress will choose to enforce.
Braden Boucek: David, do you care to respond to that? And do you want to tackle, in practice, how closely federal and state governments actually do resemble each other?
David A. Carrillo: Sure. Thank you for having me. It’s a pleasure to be here with John and Luke. And John is, of course, right. The republican form of guarantee — Republican Form of Government Guarantee Clause is probably the only real limit the U.S. Supreme Court has expressly held on more than one occasion that federal separation of powers provisions do not apply to the states. They’re free to, within a very broad limitation, design their governments as they wish.
What’s interesting is that, aside from the early, pre-1787 experiments that John referenced, the states largely, after that, fell into a pattern of largely — not copying, but replicating, in broad terms, the tripartite system of government that the federal government was expressly designed to have. So it’s interesting that, even though they don’t have to, and there are some significant variations, that the states largely do fit within the four corners of the federal government design with three branches of government.
It’s interesting that John mentioned that one of his students was thinking about California having a parliamentary form of government. One of my students a couple years ago wrote his paper and subsequently published an argument that California could have a parliamentary form of government without violating the Guarantee Clause. I think that’s a pretty interesting question.
So the variation tends to be not we have five branches of government or one branch of government. Other than direct democracy, which some people argue is a fourth branch of government, what you tend to see is a variation within the design of each of the three branches.
So John mentioned the divided executive. California is a good example of that. We have nine separately elected independent constitutional officers. There’s pretty big variation in the way states design their judicial branches, particularly with regard to selections. It’s very common, in states, for judges to be elected, or to have appointments, like California does, with no legislative confirmation.
Legislatures have some variation. I think three or four states, at one point, adopted a unicameral legislature. Nebraska is the only one that currently does. John’s home state, California — of Pennsylvania tried it at one point. It didn’t last very long. So what you tend to see is variation on the theme of a three-branch government.
Braden Boucek: Thank you. And let me let Luke a chance to get in there. Luke, do you agree that the constitutional guarantee of a Republican form of government is really the only restriction the Federal Constitution places on how states can design their government?
Luke A. Wake: Yeah. I agree with what’s been said already on that, and the fact also that the Guarantee Clause has not been held to have any real meaningful effect, because it’s continually, when it’s been brought up the past, been said to be a political question. I believe there was an opinion in 1992 where it got an O’Connor concurrence that suggested, well, maybe there might be some application of the Guarantee Clause that wouldn’t run afoul of the political question doctrine.
But, generally speaking, even that seems to be a toothless restriction, unless you had a state that sort of set itself up, as opposed to having sort of lawmaking functions done by a legislative sort of body, and said, just said we’re just going to have a czar, or something to that effect.
Well, then, at least in theory, the Republican Guarantees Clause would then kick in. But, other that maybe our experiment with COVID over the last couple years, we haven’t been in that territory. And one could debate about whether or not we’ve actually descended into — at least for a period — autocracy, in 2020 and 2021. But those are certainly interesting separation of powers questions, and, as you noted, why people have really given some added focus to separation of powers issues that maybe they hadn’t thought about in a long time.
Braden Boucek: Well, Luke, since you just followed up everybody there, let me give you another one. How far have the states gone with the design experiments? Are there any unique aspects of states in their design structure that’s worth mentioning?
Luke A. Wake: Well, I mean, the others have already noted a handful of differences. What I would note is that, in practice, you see sort of variations in, in the way the states approach specific constitutional doctrines. And, for example, you will, at times, see state courts saying that, that you have a violation for something that wouldn’t necessarily be a violation under the federal doctrine, and vice-versa.
So it is — you have to look at the specific doctrine in question. But I do think it’s important, though, to ground this conversation with looking to the uniformity that has been noted already. And there seems to be a lot of commonality across the grounds. And that is because all of these states do share sort of a common history, in terms of the sort of original conceptions of the functions of government or legal tradition, looking back to John Locke and our sort of collective experience with establishing the very concept, I think, of constitutional governments in the modern sense during, say, the English Revolutions, and where Parliament ascended legislative supremacy over the king.
And those basic tenets, I think, necessarily were important to the founding fathers of the Federal Constitution. And, I think, for good reason, found themselves in the state constitutions, which, again, share that common ancestry.
Braden Boucek: David, you referenced already some of the unique design features of California structure. All three of you are Californians. We don’t have to be shy about keeping this kind of California-centric. I’m the only one who’s not there. But did you see anything unique in the limits of California’s constitutional structures that it has placed on itself [inaudible 00:11:37]?
David A. Carrillo: Yeah. What’s been interesting about the way state constitutions have evolved in the last couple hundred years is that some changes that either could have been but weren’t designed into the federal constitution, or were proposed for the federal constitution, but ultimately not adopted because it’s a very static document, have found their way into the states. And I’m thinking of a few things in particular.
One is in the 1800s there was a running debate about the executive veto. And various proposals of changing the executive veto in the Federal Constitution failed. But they found traction in the states. The Confederate Constitution, for example, originated the idea of the line-item veto, which subsequently got adopted in a number of states. The weakening or changing of the federal executive veto never happened, obviously, at the federal level. Congress — U.S. Supreme Court, at one point, held that the line-item veto was unconstitutional for the federal executive.
The other big change direction happened in the 1900s, which related to judicial review. A number of states adopted a proposal that, again, was talked about, but never, never implemented at the federal level, which is making judicial review much more difficult. That happened in California by initiative on a couple of occasion. California’s voters changed the death penalty. They changed criminal procedural review. They changed same-sex marriage. All of those were as a result of, of responses to judicial review decisions.
The other specific thing that I was going to mention that isn’t in the Federal Constitution, but is in the constitution of 40 states, is the topic we’re discussing today, which is separation of powers. I think there’s 40 states that have, in their constitutions, the kind of express separation of powers provision that California has in its. It’s only implied in the Federal Constitution.
So these are three good examples of ideas that either could have been included in the Federal Constitution, but weren’t, or were subsequently discussed as changes that, perhaps, should be made to the Federal Constitution, but never were, because it’s so difficult to change. But the states, being more dynamic with their constitutions, either included them in the beginning, or just wrote them in later.
Braden Boucek: Professor Yoo, this next question’s for you. And, this, of course, comes amidst the backdrop of the use of executive authority at the both federal and state level in response to the pandemic. But do you agree that states like California would have more latitude to act at the executive level in response to an emergency, without it being a separation of powers concern?
John C. Yoo: That’s a really interesting question, Braden, because it would depend on whether you thought — what you thought the meaning of “the executive power” was, in state constitutions. And, as you know, famously, the Federal Constitution has no emergency power clause. But when presidents have acted during emergencies, like the Civil War, for example, presidents have looked to the executive powers, giving them — excuse me — some authority to respond immediately to events.
And very famously, remember Lincoln, in his special message to Congress on July 4, made that claim, and also claimed he was executing the laws to prevent secession, the highest of which was the Constitution itself. And I think the Supreme Court ultimately blessed that approach in the Prize cases a few years after the beginning of the Civil War.
It seems to me, states, as David just said, states have these separation of power clauses. And so the interesting question would be do state constitutions, when they adopt that clause, and, depending on the time when they adopted the clause, are they incorporating an understanding of emergency powers into their constitutions that come through the executive power clause?
Now, I’d note, since you mentioned California, I’ve also looked at the laws of a few other states. Most other states that have been acting during this pandemic, have — the governors are acting pursuant to statutory authority. According to — there’s a, there’s a — in California we have something called the, I think it’s called the Emergency Services Act. Is it called the ESA?
David A Carrillo: Emergency– yeah.
John Yoo: Yes, the acronym. It’s not that different from other states where the governor is given the delegated right to declare an emergency. And, actually, what’s interesting, Braden, in comparison to the sort of federal presidential emergency authorities that have been claimed over the years, these statutes tend to be more detailed. They tend to be more detailed about what an emergency is.
People are always surprised to learn, I think, that the Supreme Court’s never defined what an emergency is. Some, you can imagine, some of these statutes are much more detailed, in terms of when the governor has to go back to the legislature, to, essentially, go back to the well for emergency powers. They’re also, I think, a little more detailed about what the governor can do.
Now, on the other hand, and this — I’ll close with this. The thing that I think makes it more of a threat to individual liberty, perhaps, and what the federal president can do, is that the state government is not limited in its powers, vis-à-vis the individual, the way the Federal Constitution is. The Federal Constitution has limited enumerated powers. So there’s a, just a limit on what the federal government, even acting through a president during an emergency, can do.
Whereas, a state government, as you all know, has the police power. So, in our system, we just assumed states have all powers over the individual and events, entities within its territory, that are not limited by the Bill of Rights and the state constitution. So if a state emergency powers law, like California’s, for example, just gives the governor the police power during an emergency, to me, that means that the governor actually has greater authority, for good or ill, than a president even has during an emergency, when it just comes to the relationship of the government to the individual in our daily lives.
So I know PLF — I guess this is just introducing it to Luke — I know PLF has a project working on trying to get states to amend these emergency service laws in various ways to make sure that, for example, the governor of California can’t say, “I have the police power for two years, or three years, or even longer, until we don’t see a COVID virus out there anymore,” which could be decades. How do you stop that from happening, or at least get the, the legislature, and even the people, back involved into when they want to keep giving the executive these kinds of unusual powers?
Braden Boucek: Well, thank, thank you for that respond. I definitely want Luke to jump in there. And Luke, really —
John Yoo: — I think he wants to.
Braden Boucek: — one of the important things that I want to pull out of that was the police power originates with the states. And that’s an important distinction between the emergency, exercise of emergency powers that happen at both the federal and state level. So go ahead and respond to Professor Yoo. But I’d really like you to take up the, the police powers point, and how that is significant.
Luke A. Wake: Yeah. And that’s a really important point. Because, as you just noted, the police power resides with the, the state itself. But in California and a handful of other states, through their emergency management acts, that actually, the statutes actually expressly confer all police power of the state to the governor. And so there’s, there’s a very significant separation of powers question as to whether or not the legislature can lawfully delegate all of its police powers. And, of course, I’m arguing in our litigation at PLF, the answer is no.
The police power, it entails — I would, I would argue that police power entails two functions. One is the power to actually execute law. That is in — the law is already in effect, but there’s that sort of a power to execute and enforce the law, which the governor could exercise that, that aspect of the police power, no question.
But the aspect of the police power that entails the legislative function, the power to actually make affirmative, positive law — that is reserved to the legislature. And the California constitution — as a number of other states, as David noted a moment ago — is explicit, expressly saying if you’ve been delegated, if you’ve been given emergency executive powers under their state constitution, you cannot exercise the legislative powers. And it has the same operative language, with regard — if you’ve been given legislative powers, you can’t operate under executive powers.
And so that leads, I think, to a very strong inference that, if anything, the federal — the California constitution, at least, properly construed, should be more protective of this principle than even the Federal Constitution. One, I suppose, could argue about it, functionally. I think the tests, operatively, under the non-delegation doctrine, are roughly the same, although they’re articulated in different ways.
But it — backing up for a moment, I do think it’s important to address that question about whether or not the governors actually have any sort of innate, inherent power to just, to respond to an emergency, and, and to make actual laws that are binding upon individuals and our liberties. And I think the answer has to be no on that. And I think that’s reflected in the fact that you have, ubiquitously, throughout the states, legislation conferring emergency powers.
But, again, the, the question in those statutes, and, again, those are ubiquitous. They’re broad delegations, generally speaking, to, to exercise at least some aspect of the police power. A few states actually say all police power. But the question is how broad of a conferral can you actually give without running afoul of these separation of powers principles? And the states — a number of states have been largely deferential to the governors during that time period. But there’s two solutions to that.
One, we continue, continue to litigate this question, for one, in California. But the other solution is the legislative route, which John Yoo has noted. And, Kentucky, for example, is a state that has adopted legislation to respond to this problem by putting objective temporal limits. Basically, once the legislature is back in session, there is a, there is a very small, finite period where the legislature either approves the emergency orders or not.
And, if they don’t, then they are extinguished. And, by the way, we brought a suit against Governor Beshear when he tried to challenge the constitutionality of the legislature’s attempt to reign in his powers that way, too. So this is a continuing issue we’re watching throughout this, the country.
Braden Boucek: David, I can tell you want to talk. Let’s, let’s hear it.
David A. Carrillo: Well, I was thinking about the discussion we had last time about, about the delegation issue. And Luke started out framing this with two questions. One is the executive power to execute the law. And I don’t think anybody would disagree that, if there’s a law in the books, that it’s within the governor’s executive power to go and make that happen.
But the second thing that he referenced is the legislature’s policymaking power. And, as John mentioned a minute ago, the California Emergency Services Act vests the governor, in an emergency, with the police power of the state, which, arguably, includes the legislature’s policymaking power.
To put it in colloquial terms, in this context, the policymaking power, exercising the police power means what are we going to do? How should we respond to this emergency? And the — I think that the definitional question that everyone has been struggling with in California and in the nation is is it enough for the legislature to decide that the policy of the state is “We want the governor to decide what to do and sort this out”? Or does the legislature have to make further policy decisions and say, “Well, we’re going to decide that we’re going to have an emergency response. And here’s what that’s going to look like. Now, Governor, go and execute that.” So that gets into the delegation discussion that we had previously.
And I think that the, the way California courts have handled this — and here, I agree with Luke — it’s a little counterintuitive. Because you would think that with California and a lot of other states having express separation of powers provisions, you would think that that would mean that you’d get California courts imposing a more strict separation of powers doctrine. But it’s actually the other way around.
California and a lot of other states have a looser separation of powers doctrine. And it flows, not from this express separation of powers provision in the state constitution. It flows, instead, from the nature of the state government. The legislature of California can do everything that it’s not expressly prohibited from doing. Well, then you’d loop back to Article III Section 3.
Okay, well, it says right there that you can’t exercise anyone else’s powers. That, then, gets back to the definitional question, well, who’s power is it to decide what the policy of the state is, in responding to an emergency? And is it enough for the legislature to say, “California’s policy is for the governor to go and sort that out until the emergency is over”?
So you always have to struggle with this definitional question. And you’ve seen this play out in the litigation that Luke mentioned. We’re still struggling with this. And I certainly agree with John that, at some point, a chronic condition — an emergency turns into a chronic or an endemic condition. Again, we have a definitional question: where is that point? And how do we figure that out, when you no longer need emergency executive power and you can deal with this as an ongoing condition? That’s a really tough question to answer.
Braden Boucek: Thank you for that. And I want to make sure we have adequate time on here. Because I want to talk, spend a little bit talking about judicial challenges. Of course, there have been no shortage of those, at both the federal and state level. And the courts have been all across the map in how they’ve treated executive power.
We’ve seen successful challenges at the federal level, for instance, notably, to the eviction moratorium from the Centers for Disease Control, the vaccine mandate that came down through OSHA. These are all species of separation of powers cases.
So, my question, that I’ll start with Professor Yoo with, is does the federal court approach to executive power — is that different for how state courts would review a state court action? If so, how do these overlap?
John Yoo: This is another interesting thing is when I have dipped into the state court literature on separation of powers, and I’ve mostly done this in the area of the non-delegation doctrine, I see a lot of state supreme courts just sort of borrowing the federal approach. And there’s no reason they have to. In fact, as David suggested, and Luke has suggested, you would expect the separation of powers maybe to be more powerful in the state level, because you have these clauses which say separation of powers.
You have much more detailed thought and consideration by the founders of those documents, because they’ve come later, about maybe how to resolve disputes between the branches. Or maybe they want the disputes to be more pronounced. Maybe they want more fighting between the branches, because they don’t trust the government. But state constitutions can be changed more often so that there’s more course corrections you can put into it than you’d have with the federal one.
But, surprisingly, to me, when you, for example — so Peter Wallison and I, at AEI, just issued a book about the non-delegation doctrine with a collection of essays. And there was a really interesting essay in it about state constitutional non-delegation doctrine cases. And so this argument was — looked at all the state constitutions. A lot of state constitutions, they just basically do what the federal judge does, what the Supreme Court does, to the point where they, in fact, cite U.S. Supreme Court opinions and frameworks when they address state law, which is really the reverse of the way the system should work.
Or, if you, like David’s just been, and Luke’s just been talking about, well, we can have experimentation at the state level. You can have differences. The last thing you should have then, is state courts in some way saying, “Even though we don’t have to, we’re just going to borrow federal doctrinal law to address this.”
But there were a few states that do have what seem to be more aggressive non-delegation doctrine tests than what the U.S. Supreme Court has, which is, I have to confess, sadly, is not very hard to do. Because the U.S. Supreme Court just doesn’t really enforce non-delegation doctrine right now. Although they might start doing it, starting this term.
So you would expect to see a lot more diversity of separation of powers review in state courts. But I think you don’t see it. And I’m puzzled by it, actually,
Braden Boucek: Great point. David, do you agree? I mean, should state courts be relying on federal jurisprudence when it comes to delegation and separation of powers?
David A Carrillo: Arguably not. If you want stricter or more aggressive non-delegation, as John said, the U.S. Supreme Court has not been particularly aggressive with that. So that would be the worst thing to borrow from. It’s also, arguably, counter-intuitive to borrow from federal law, which doesn’t rely on a textual separation of powers provision in its constitution.
So it’s the classic — even if you’re a person who believes in lockstepping, which is locking your state jurisprudence to federal jurisprudence, even if you generally believe with it, believe in that, separation of powers should be the one place where would make an exception for that. Or it’s the one thing that blows a hole in that theory because, because of your textual provision.
So you should be wanting a stricter separation of powers under your state constitution. So, in that case, why would you borrow from federal law? And John’s absolutely right. I was looking at a case before we got on, called United Auburn, where, where a justice of the California Supreme Court borrowed the Youngstown tripartite framework in discussing, or in analyzing the governor’s powers.
Why would you borrow a framework that describes the federal president’s powers when you’re analyzing the California governor’s powers? They’re completely different offices from completely different governments, designed by completely different documents. One of them has an expressed separation of powers provision, and the other one doesn’t. Why would you borrow that?
So it’s interesting that you have this dynamic where, where state courts do borrow from federal law. And it’s arguably, I think, in Luke’s view, probably to the detriment of the doctrine. So why — if there’s one place where you wouldn’t borrow from federal law, I would think it would be this one.
Braden Boucek: Luke, he just put his name in your mouth. Do you agree? Did he accurately summarize your views?
Luke A. Wake: Well, I think, I mean it’s — look, certainly, as a litigator, when you have a federal opinion that you think is helpful that we’ll use it. So, for one, in our [inaudible 00:30:50] case, we’re arguing that the sliding scale analysis that has been applied in federal courts should apply, certainly when we’re talking — and then that was the sort of analysis that was applied in this Michigan Supreme Court case that actually did find a violation of non-delegation doctrine.
So you point to any authority that actually helps your case as a litigator, right? But the point is well taken. And I, I mean, I do agree that there are some very notable examples of state courts actually applying, I think, more rigorous non-delegation analysis. If you want to see examples of statutes actually being invalidated in the last 40, 50 years, you can find those in some of the state supreme courts across the country. Florida stands out as an example.
But I would also note that we have, even here in California — which one might have thought was a lost cause in raising these sort of constitutional arguments — cases that remain good law that have found violations of the non-delegation doctrine or that have narrowly construed statutes to avoid non-delegation problems. And so I think the answer that, certainly, that I’m pushing in our litigation here, is that we just need to actually enforce these constitutional precepts that the California Supreme Court’s already spoken to.
But Braden, I do want to just briefly make sure that we’re touching back to the question you posed to John a moment ago about the distinction between the way the federal courts have treated pandemic-related cases concerning delegations of authority to the executive branch, versus what the states have done. Because we have seen, I think — again, with the exception of the Michigan Supreme Court I noted a moment ago — some very significant differences in the outcome. And that, I think, largely is, well, the states were awfully deferential in practice to what the executive branch was doing. And there’s maybe a number of reasons why that might be.
But one I would note is that, at the federal level, we have developed the, now, this concrete idea of a — this major question about what is a major question. But this major questions doctrine has really solidified, in a more concrete way, in the last couple years, and it has origins, I think, going way back. But the major questions doctrine, I think, is the lens through which one should be looking at significant separation of powers questions, at the federal level. And, of course, the non-delegation doctrine, again, as a backstop, with a canon of avoidance argument there.
A similar argument, certainly, you can press it at the state level. But my sense is that the states have not developed the concept of a major question doctrine in the same way. Certainly they employ canons of avoidance, where the non-delegation arguments are presented. But, in general, my sense was that the state courts, by and large, fail to take the non-delegation doctrine as seriously as the federal courts did.
And, again, even those cases, they weren’t expressly decided on non-delegation grounds. You look at the OSHA vaccine mandate case, for example, the eviction moratoria case, the Supreme Court, they were not deciding on non-delegation grounds. But I think the non-delegation doctrine was, was very much present in their thinking as sort of a background principle, and supporting the hydraulic pressure to avoid a serious separation of powers problem.
Braden Boucek: Well, I mean, you’ve all seemed to agree that you find it odd that state courts are doing so much incorporation of federal jurisprudence, given the fact that there’s just such relevant legal distinctions. I’d like to ask if you guys — I’m just curious as to your views as to why you think federal or state courts have that tendency to fall back on federal jurisprudence. Professor Yoo, do you have any thoughts on that?
John Yoo: I think part of it is legal education. It’s our fault because we don’t really offer, I think, in law schools, systematic classes on state constitutional law. I think we actually do at Berkeley. We have one on the California constitution. And I bet that — I mean, I’d be interested. We could definitely do a survey of whether the leading school in each state offers a class on the state constitution of their state, putting aside just state constitutions, as a whole, but our students who are graduating from schools learning the state constitutional law of their own states, which, arguably, when you go out into practice, is probable going to come up much more often than federal constitutional law in your own private practices.
So I think that’s part of it. A second thing — again, this is very interesting, because for fed courts junkies, it goes back to Hunter v. Martin Lessee, right, about — or, I’m sorry, Martin v. Hunter’s. I always get them mixed and confused. I don’t know who’s lesseeing from who. Martin v. Hunter’s Lessee. You might remember there’s a discussion there by Justice Story about the difference between federal judges and state judges. And he had said, at the time, the reason why we expect federal judges to be the final interpreters of federal law is not because federal judges are better, but just that they specialize in federal law. And state judges specialize in state law.
And I’ve always wondered whether that was no longer true because state judges themselves don’t — they think of themselves in the hierarchy of federal law. And so I think they’re less — I think they’re reluctant to experiment on state law issues in the constitutional arena because they’re so — I bet that you’d have similarities in federal and state constitutional law when it comes to other things like free speech and due process.
And I actually think this is a disappointing way that federalism has worked out. Because, in theory, state constitutional law should be, it should be different than — it could be more protective. It could be less protective. But they should be doctrinally different.
So I do, I think I detect that state supreme courts, maybe, and state judiciaries, they may have a certain lack of confidence in themselves to develop robust tests, and, instead, rely or revert back too easily to federal law.
Braden Boucek: Yeah. This is — what you’re — you’re really making this a part of a much broader trend, and that being the tendency of state courts to look to federal courts and federal jurisprudence to intercede, even on matters of purely state constitutional law. I can tell you as, on the part of a litigator who’s litigated in a fair number of state constitution law claims, if you take them to state courts, the state courts will grasp for whatever a federal court has said on that particular doctrine.
And if you take them to federal court, the federal courts say, “Well, we don’t opine on state constitutions.” And you end up in this sort of limbo land where nobody seems to know, for instance, what the Tennessee constitution has to say about it. But David, you, commendably, are teaching classes on state constitution. I want to privately congratulate you on that.
David A Carrillo: Thank you.
Braden Boucek: What are your thoughts on why federal courts are — or state courts are so reliant on federal jurisprudence?
David A Carrillo: The originators of modern state constitutional law, guys like John Dinan, Robert Williams, and Allen Tarr, have looked at this — and others — have looked at this extensively. And they break it down into categories. A lot of it has to do with whether a state, either by design or by decision, locksteps its state constitutional doctrine to federal law.
Sometimes it’s up to a state supreme court to decide whether or not to do that. And so you see, you see some conscious decisions to do that, sometimes across the board, sometimes on particular issues. I mentioned sometimes the voters make that decision for you. In California they did with Proposition 8; not the same-sex marriage Proposition 8, the other one.
So there are a number of explanations for this. Sometimes you get judges who wind up on state courts and they’re from the federal bench. And so they have a tendency to reach for what’s familiar. That’s been true in a few instances on the California Supreme Court in recent years. People with, people arrive with a federal law background. And so there’s probably this unconscious, subconscious, tendency to reach, to reach for what you know.
Some people arrive with a judicial philosophy that speech means speech, regardless of whether it’s in a state constitution or a federal constitution. There’s an argument about whether that’s true. It’s probably wrong, because most of the individual liberties we have originated in state constitutions. The guys who wrote them into the Bill of Rights brought them from the state constitutions that they had already written. So sometimes you get lockstepping by default. Sometimes it’s imposed. Sometimes it’s done unconsciously. Sometimes it’s done consciously.
But I think the bottom line is, as John said, you have this very disappointing anti-federalist situation where state supreme courts do, by-and-large, have a tendency to rely on federal law. And that’s largely to the detriment of the individual source of — or the distinct individual source of liberty that their state constitutions can and should be providing. So I agree that this is a sad state of affairs. But it is what it is.
Braden Boucek: Luke, what’s your explanation? How do you make sense of it all? Let us know.
Luke A. Wake: Yeah. Well, I have a couple thoughts. One is, especially, I think, in this space, when we’re talking about delegations, I think the inclination to want to be deferential and to just latch on to a very deferential standard that the federal courts have developed, and that I certainly hope the federal courts reconsider with time, perhaps by reading the book, John, you just mentioned.
So I think that possibly one explanation could be — maybe the legal cynic here, that, to some extent, there is an issue with the fact that you have state court judges that are appointed by, in some cases, the very people who are — they’re reviewing emergency orders from. So I think it’s very difficult. And they stand retention elections. I can only speculate as to what extent those sort of factors might have played into the difference in the outcomes between the state and federal courts, and how they evaluated pandemic responsive approaches. I don’t know if lifetime tenure would have mattered. But it’s something to speculate on.
But on a more sort of doctrinal level, thinking down, drilling down and to actually say, “Let’s talk about the non-delegation doctrine,” for — since that, I think, is the center of the emergency powers stuff we’ve been talking about. Well, while, at the same time, well, we’ve all agreed that we should give some weight to the fact that the California constitution and these other state constitutions are explicit on this point, that we’re going to have a division, a strict division between the different branches, whereas, it’s only implied in the federal constitution.
That, certainly, I think, at least, should be pushed back against the arguments that I’ve seen from, say, the Attorney General, saying, “Well, the California constitution is weaker on separation of powers.” But when we really drill down into the sort of, fundamentally, what we’re talking about when we’re talking about non-delegation doctrine, the essential premises of the legislature or the Congress makes law and that power can’t be given away to — in a blank check fashion, to some other entity, we’re really getting into sort of legal philosophical territory, and expounding on John Locke and so forth.
But how do you, how do you distill that concept down into a legal test? And, in practice, what you see is that the states have largely distilled it in a way that is different than the intelligible principle test that the Congress — that the Supreme Court has given us, in that they, state courts, tend to say that there are three different tests and you’ve got to pass each one.
The legislature has to decide fundamental policy. The legislature has to provide adequate standards. And there have to be adequate procedural, or adequate safeguards. The latter one, I think that, probably, actually is more appropriately viewed as a due process test. But my point is that the state courts have at least articulated the test slightly differently.
Now, in practice, the outcome is largely the same. And I’m not really sure what to make of that. But the fact of the matter is, we do have distinct tests. And I think if you actually rigorously applied those distinct tests at the state court level, you can and sometimes do get sort of better decisions. And so maybe it is the fact that maybe the federal courts ought to be looking to the states if they want to see models of, in some instances, of successful non-delegation claims, and how you might think about reformulating the doctrine itself.
David A Carrillo: Could I follow up on one point?
Braden Boucek: Please.
David A Carrillo: Luke just gave me a framing idea. It’s long been argued that the U.S. Supreme Court imposes a federalism discount. And when you define an individual right nationwide that the — there are incentives to do so at the lowest possible level, or at a lower level than you might otherwise do so. State constitutions, obviously have no such limitations. They can deviate upwards from the federal floor to the extent that they want, and protect rights maximally.
So I would argue that anyone who tries to enhance individual liberty by relying on their state constitution is serving a federalism function, a very important one. And, arguably, that’s the purpose of, not just our discussion here, but of the federalist society itself. It’s to seek individual liberty and enhance federalism. I think that, relying on and advancing state constitutionalism, it serves both of those functions in, in a very important way.
Braden Boucek: Well, Luke, as you well know, there was no shortage of challenges brought to the exercise of emergency powers at the state level. The vast majority of these did not succeed. However, there were notable exceptions in Michigan and Wisconsin. And I know you’re familiar with both of those. Why did those cases succeed where other state constitutional law challenges failed?
Luke A. Wake: Well, it’s notable that you had a handful of Supreme Court cases. The Kentucky, Connecticut are really the big ones that come to mind that actually definitively said just open-ended delegations of emergency power are okay. And I think a lot of the cases ultimately didn’t make their way all the way to the state supreme court on that very question because there were mootness issues that came about.
But, with regard to Michigan, Michigan stands out, I think, as an example of really how courts really should be — again, I’m talking about taking non-delegation doctrine seriously. Read the Michigan Supreme Court’s decision invalidating the emergency powers of the governor’s act there. And that’s — the court really emphasized that the sliding scale concept, that the broader the scope of the authority conferred, the more stringently they were going to evaluate that, and ultimately found that when you give away, even a substantial portion of the police power, that that is a violation of non-delegation doctrine.
And so that — I think that is a standup model. Meanwhile, in Wisconsin, Wisconsin stood out very early on because the supreme court there held that there were firm — temporal limits on the governor’s emergency powers actually meant something and actually cut off his emergency powers. At that point, the state then shifted to trying to do things through, basically, the state health department, or whatever the agency would be in Wisconsin.
And you had, thereafter, a follow-up, another case, called Wisconsin Legislature v. Palm, where separation of powers issues were squarely presented. And there, the court invalidated, by a narrow decision, it was 4-3. It was a statewide emergency order from the Department of Health Services there. And they held that there was — it was procedurally invalid.
But the non-delegation doctrine was invoked very seriously as an avoidance doctrine to — as sort of a background principle, moving in that direction. And I would also note now that the Wisconsin Supreme Court has another case pending where they — it looks like they are going to squarely reconsider the state’s approach to non-delegation doctrine, in general. And, specifically, evaluating, maybe squarely on the constitutional grounds this time, another emergency order, this one done at the local level.
Braden Boucek: Those are fascinating and underreported cases that are not well known, just because they exist in state court. But, Professor Yoo, before we get to questions, I wanted to ask you, do you think that there’s something about the institutional structure or composition of the state or in federal judiciary that skews state courts towards a more deferential approach?
John Yoo: I don’t think there’s anything about the way state courts are designed. In fact, you would think — and here’s something I guess we didn’t talk about when we, when we mentioned how different state constitutions, federal constitution are, is the election of the judiciaries. It’s a really big difference is that you have a sort of constant replenishment of the judiciary by reference to democratic approval. I would have thought — I would have thought that would have been incentive to produce even more diverse state laws on state constitution, but maybe it has the opposite effect.
Maybe — I’m just speculating, but maybe it’s the case that having an elected judiciary, as I guess it’s about, what, more than two-thirds of the states do now, which may produce judges who are shorter-term. They haven’t been on the bench that long. They may not stay that long. Maybe that means that they’re not as well prepared, in terms of state law. And so it’s, as others have said, it’s just easy, if you have a separation of powers clause, just to look at federal law, because it’s already formed and extensively debated and discussed in the scholarship. And there’s lots of cases.
And it’s just very easy to — and they’re familiar with that, especially if they’re being elected to the judiciary, not as, put like a constitutional law specialist of their state. But they’re getting elected to the judiciary because they’re well-known local politicians or they were practitioners. And so they didn’t really have a lot of familiarity with constitutional law at all. Maybe that’s what it is, is the elected judiciaries. But otherwise, I can’t think of why state . . .
The other interesting thing is that state judiciaries themselves are organized like the federal judiciary. I don’t know why that would have to be either. You look at other countries, and they have very different ways of organizing the judiciary. But our judicial systems, trial, appeals, non-subject-matter based, are primarily, in most states, are like the federal system. So maybe all this mimicking of the federal system and the judiciary leads them also to copy federal law.
David A Carrillo: California’s used to be different. It currently has a three-level system that mimics the federal system. But it — California has basically tried every kind of judicial branch organization known to man. It hasn’t always been that way. But John’s also 100 percent right about other state constitutional scholars have studied this question of why state courts aren’t as bold as you would think that they would be.
And it basically comes down to caution. It’s just safer, is the argument, to rely on federal law. Because when you have to face the voters, it’s a lot better to argue that, well, I had to rule this way because that’s what the U.S. Supreme Court says, versus having to defend your own independent analysis. That’s the theory, anyway.
Luke A. Wake: Well, and if I can just briefly note, Ilya Somin, I think has done some great scholarship on takings, takings issues. And he’s noted in some of his scholarship there that there is in that context, when you’re a judge asked to like, decide that the state is actually liable to having to pay compensation for a regulatory taking, that there is tremendous incentive, as a practical matter, to rule for the government.
And so I raised this question about the election of the judges might be a factor, I think especially when we’re dealing with something that there was a lot of public sentiment about at the time. It’s at least possible that the possibility of retention elections in some shape or form may have affected the way judges thought about these things in a more deferential manner than, say, the federal courts.
David A Carrillo: Yeah. I think there’s pretty good empirical evidence on that, that on the spectrum from, you have to face the voters every few years, to life appointments, there’s a pretty clear direct relationship between the tenure of your appointment and the boldness of your, of your opinions. This isn’t my research. Other people have studied this. But it’s, it’s pretty clear.
And there’s pretty good point examples, like in California, people have argued that the California Supreme Court has been a lot less bold than it used to be before the 1986 election, which saw three justices of the court evicted from their seats. Got to face the voters.
Braden Boucek: Fascinating. I hope you’ll circulate that research at some point. I’d like to see it.
David A Carrillo: Sure.
Braden Boucek: Let’s get a couple questions in. And, by the way, just a reminder to listeners, if you’d like to be called upon, you can raise your hand, and we can switch the camera over to you. You can also put it in the chat. We’ve got a couple questions in the chat. We’ll see how many we can get to.
First question is a hypothetical. “If a state wanted to adopt a truly parliamentary form of government, which the panelists seem to think that they would be allowed to do, at least from a federal constitutional perspective, what would happen if there was a vote of no confidence were to take place and the appointed head decided to dissolve the government and call snap elections? That would have consequences for the union as a whole. Would that cause a commerce clause problem, if, for instance, that happened in California? It could, in theory, paralyze a large chunk of the country, if a parliamentary system were to exist and then be dissolved.” Anybody want to respond there?
David A Carrillo: I’ll go first, if nobody else wants to. First, I want to recharacterize a little bit. I’m not sure that all three of us agree that California could have a parliamentary form of government. I think we do agree that that’s an interesting question, and I would love to see how that played out in practice. And it’s certainly been the case, in instances in the past, California’s government has been effectively paralyzed. For example, the legislature failed to pass the budget and the state economy is frozen for months. And you can’t pay, pay off on contracts or state employee paychecks. The state is paralyzed because the legislature can’t agree on a redistricting map.
There had been a number of instances where California’s existing Republican form of government has, has just been locked up and unable to function effectively. The legislature was out of session for months in the early part of the pandemic because they couldn’t agree to meet remotely. So you already do see some practical versions of the kind of problem that you’d get if a parliamentary government in California collapsed. California hasn’t fallen into the sea and the nation still stands. So I think we could survive that.
Braden Boucek: Anybody else want to jump in there, or do we want to move to the next question? Professor Yoo?
John Yoo: This is a common criticism of parliamentary systems in general, is that they’re more, they’re unstable, compared to the U.S. system. I’m not sure that’s true. You can look at the — I mean, certainly, if you look at Israel the last few years, they’ve been having trouble forming a majority government at all. And, then, famously, Italy has gone through many governments since World War II.
But I think, if the — and I’m certainly open to being corrected. But I think that’s actually a function of the number of political parties that are in those countries. And so in the United Kingdom you have two political parties, Tories and the other guys, Tories and Labour, and I think the argument is that when the electoral system allows a plurality winner to win an election in a district, it generally means that you only have two political parties. And when you have those two political parties running against each other, you have stability.
It’s when you have proportional representation, where you sort of allocate seats to multiple parties, rather than sort of those head-to-head, first-past-the-post elections, the multiple parties are what create instability of the kind that the questioner is worried about, where governments just rise and fall, over and over again.
Luke A. Wake: And I have no, no official position on the parliamentary — I see no reason why it couldn’t be done. Of course, it would require a totally new state constitution and convention in order to do something like that. I would just note, I would enjoy seeing Gavin Newsom doing the Prime Minister’s questions.
Braden Boucek: Yeah. I think we’d all enjoy seeing more governors do more Prime Minister questions. Here’s a fascinating question, “With the upcoming Dobbs decision, does anybody think that this will swing the discussion of state constitutional law back to the state court arenas?”
I think this question probably presumes that Dobbs substantially curbs Roe v. Wade, but anybody want to take a stab at that? Maybe the way to frame that is, assuming that the Supreme Court does substantially curb Roe v. Wade, to what extent will you see discussions of state constitutional law swing back to state courts?
David A Carrillo: I want to know what John thinks.
John Yoo: No, I think that’s a good question. And I think that’s inevitable. It’s just, I would say, it’s nothing to be afraid of. Think about all the other questions where the Supreme Court has chosen to not federalize an area. And some of these are life and death issues, like euthanasia. We allow the constitutional system to handle euthanasia, or the death penalty is also handled by the states, and criminal law and policing, primarily handled by the states.
So I think it’s nothing to worry about. Our state legal systems handle the most basic questions of life and death. I actually think the weird thing is that the federal constitution has been expanding so much to take these matters into account. And so maybe, I think, it’s really that people really care about abortion so much that they are going to focus on state constitutional law again.
On the other hand, I predict, maybe I’m wrong, but I predict that when state constitutional law goes — I’m sorry, when abortion goes back to the states, if that’s what happens, maybe the whole thing just becomes less political and people will fight the political battles in the states through the political process more than the courts, and they won’t even ask their state constitutions to handle it. They’ll just handle it through regular legislation, like we do a lot of other matters.
Braden Boucek: Luke, thoughts on that?
Luke A. Wake: No, I mean, all of that makes a lot of sense to me. I think that whenever we’re talking about these sort of issues, there’s a certain irony I — that comes to mind, is when you see, occasionally, really good — a sort of non-delegation decision, for example, pops to mind, from the Pennsylvania Supreme Court a while ago, where they found the Pennsylvania workers compensation act violated the non-delegation doctrine and incorporating, by reference, standards from the American Medical Association, or something like, something to that effect.
But it was not for naught that it was a case in which doing so, there was sort of a pro-labor angle to that, that case. And so I almost wonder if you’re more likely to get, in some of these states, some positive developments, in terms of the sort of issue areas we’re talking about, separation of powers, if issues are raised in a context where sort of left-of-center, more progressive-minded judges might, might, as a substantive matter, like the outcome more.
So, I don’t know. I’m totally speculating. I don’t know if I have anything specifically to say about the Dobbs decision. But John’s speculation makes sense. And I would just float it would be interesting to see, if state courts are more likely, at some point, to roll back on, say, deference doctrines, if presented with facts where maybe it’s not a regulated industry pushing back against regulation, but it’s in some other context that’s maybe more sympathetic to their, their associations.
Braden Boucek: We’re up against the hour here. We got one last question come in, Luke —
David A Carrillo: –Wait. Can I say one thing on, on the one we just, we just talked about?
Braden Boucek: Please. Yes.
David A Carrillo: I’m a state constitutionalist. And so that means that I favor two things. One is state rights. And that’s because, two, I think it favors individual liberty. It allows self-determination for the states and the citizens of those states. So, in general, any time something no longer is federalized and it reverts back to state discretion, I think that’s a good thing. And it allows for self-determination of the states. It allows for democratic experiments. And it, as I said, potentially, it allows for enhanced individual liberty, because a state can exceed the federal floor.
So if there’s no federal floor at all, states are totally at liberty to define that, whatever individual right you’re talking about, as highly and maximally as they want to, potentially. So I think that it’s potentially a good thing. Obviously, if you live in a state that decides not to favor that individual liberty, that’s a problem. But I have to look at this from a state’s rights perspective and a California perspective. And if the United States Supreme Court decides to get out of an issue, that ultimately inures to the benefit of California, I think.
Luke A. Wake: And you have the right to move with — vote with your feet, as [inaudible 01:02:19] said.
David A Carrillo: Exactly. Exactly.
Braden Boucek: And a lot of you Californians have voted with your feet to my home state of Tennessee, recently. Not that I’m complaining, but that’s just happening.
David A Carrillo: I thought it was Texas everybody was fleeing to.
Braden Boucek: We get, we get a lot of them too.
David A Carrillo: Wow. It’s a nice place.
Braden Boucek: The last question here. “The new trailer for Top Gun II recently dropped. How pumped are you?” That question is obviously for Luke “Icebox” Wake. Luke, what do you have to say for yourself?
Luke A. Wake: Iceman, I’ve been informed —
David A Carrillo: No, no, no. You are Icebox. Now and forever more.
Luke A. Wake: Icebox, yeah, I’m the wingman to Iceman.
Braden Boucek: Icebox is so much better than Iceman.
Luke A. Wake: Yeah. So, I showed the trailer to my son. He’s pumped about it. There’s airplanes. What’s not to like? So —
Braden Boucek: Well, I thought it was questionable that of all the sixty-year-old pilots, they’d let continue to fly, they chose the guy who killed his RIO and barely graduated from Top Gun and suffered from severe PTSD in one of the key dogfights of the Cold War. But, that’s not what any — that’s not the opinion anybody brings me on the air for.
David A Carrillo: It could still be an awesome movie.
Braden Boucek: Oh, for sure. Yeah. So I think that closes it on our end. Thanks for hosting us. I know I enjoyed another lively panel. Back to you, Jack.
Jack Derwin: Of course. Thank you, Braden, for hosting, and a big thank you to all our panelists today for lending us your time and expertise. And thank you to our audience for tuning in as well. You can check out our website at RegProject.org, or follow us on any major social media platform @FedSocRTP to stay up to date. With that, we are adjourned.
Conclusion: On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.
This has been a FedSoc audio production.
Lecturer in Residence and Executive Director, California Constitution Center
University of California, Berkeley, School of Law
Pacific Legal Foundation
Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program
University of California, Berkeley, School of Law
Director of Litigation
Southeastern Legal Foundation