Friday, July 26, 2019

Judging Power Plays in the American States

Miriam Seifter of the University of Wisconsin Law School at the Texas Law Review, Vol. 97, 2019, Univ. of Wisconsin Legal Studies Research Paper No. 1480, at SSRN.
Abstract

Around the country, officials in “purple” states are waging high-stakes battles in which they alter government institutions for partisan advantage. Lame-duck legislatures have divested newly elected executive-branch officials of their power, and governors have unilaterally claimed new authority over appointments or elections. In other instances, state officials have boldly leveraged existing powers: one governor line-item vetoed the state legislature’s entire operating budget, and another state legislature impeached its entire supreme court. If federal officials are playing “hardball,” state governments are playing hand grenades.

Commentators to date have largely viewed these developments in political terms, as evidence of eroding democracy. This Essay, prepared for a symposium on “Reclaiming—and Restoring—Constitutional Norms,” urges another lens: the recent power plays raise significant, justiciable questions of state constitutional law. Indeed, state courts have begun to decide these cases, despite apparent misgivings and dissenting opinions regarding the conflicts’ political nature.

The Essay describes this growing body of case law and identifies its common features. Zooming out from the outcomes of the lawsuits, the Essay highlights a set of more systemic implications: power play litigation is dialogue-forcing in a state realm that needs dialogue. In addition to providing healthy friction against power plays, state litigation spurs media coverage, social movement mobilization, and public conversation about constitutions that are otherwise low salience and about power plays that transpired quickly. This litigation-fostered dialogue also serves the separation-of-powers value of bringing multiple different perspectives and modes of argument to bear on state decision-making. In flagging this benefit, the Essay does not attempt a full normative analysis or attempt to weigh these benefits against inevitable costs. It simply suggests that, as the full picture takes shape, we should be watching to see whether adjudicating power plays can help to foreground the role of state constitutions in state governance.