What better title for Judge Jeffrey Sutton’s new book than “Who Decides?” now that we are almost two years into the COVID-19 pandemic? A few of the legal questions concerning governmental responses to the pandemic concerned individual rights, such as religious freedom, but the bulk of the legal controversies, some still going on, involved distribution of state and local governmental powers—who decides? Major questions arose concerning how the array of powers across the three branches and local governments could and should be deployed against the pandemic.
Accordingly, Judge Sutton’s new book moves beyond his earlier book on state constitutional individual rights and addresses separation of powers and checks and balances. The book is deeply researched, and considers a number of aspects of the three branches of state government created by state constitutions. He also discusses local government and the process of amending state constitutions. Of course, we know that separation of powers and checks and balances are for the fundamental purpose of protecting people from tyranny (See, e.g. Paul R. Verkuil, Separation of Powers, the Rule of Law and the Idea of Independence, 30 Wm. & Mary L. Rev. 301, 302 (1989)). Further, there is a clear exposition of his skepticism about active judicial review in both the federal and state contexts.
It is state legislatures, however, on which I want to focus this post. Much of the study of state constitutional law has involved analysis of state courts’ interpretation of state constitutional rights provisions. Attention to the state legislature has been lacking, so Judge Sutton’s coverage in his new book is appreciated. It was certainly welcomed by me, after working in the Florida Legislature before law school and teaching Statutory Interpretation and Legislation for forty years. After the disfavored and abused colonial legislatures shook off British control at Independence the understandable reaction of state constitution drafters was to reject structural elements, like gubernatorial veto, that had infuriated colonial legislators. Clearly the state legislatures created during the founding era put the legislative branch in a very dominant position. According to historian Gordon Wood “[t]hus, in all the state constitutions, the much-feared governors were radically weakened and the popular assemblies or houses of representatives greatly strengthened.” James Wilson put it this way at the time: “The legislature was still discriminated by excessive partiality; and into its lap, every good and precious gift was profusely thrown.” (See also G. Alan Tarr, Interpreting the Separation of Powers in State Constitutions). James Madison observed: “[e]xperience has proved a tendency in our governments to throw all power into the Legislative vortex.”
Judge Sutton correctly characterizes the historical evolution of state legislatures: “Much of American constitutional history can be described as the loss of state legislative power to the other state and federal branches.” (p. 234). The rise of gubernatorial power, and the rise of judicial review, coupled with the constitutional reallocation of functions such as rule making and regulation of the bar from the legislature to the judiciary have worked to equalize the balance of power.
State legislatures still occupy the primary lawmaking power in the states. But they are not simply “little Congresses.” One of them is unicameral (Nebraska). In the rest, both houses must follow one-person-one-vote. Some of them are part-time, some have term limits, some share the lawmaking power with constitutional processes of initiative and referendum, some share at least quasi-legislative power with constitutionally-created agencies like public service commissions, just to name some of the differences. Judge Sutton devotes a chapter to one of the other major distinctions between federal and state legislative structures: the growth of significant process limitations on the way state legislatures pass laws. (Ch. 7).
I became aware of these state constitutional procedural requirements for the enactment of statutes when I worked in the Florida Legislature, later wrote about them and participated in a number of litigated cases concerning these legislative procedure limitations. (As lead counsel I unsuccessfully challenged the Pennsylvania Abortion Control Act, that was added to a one-page bill by amendment after committee hearings. This was the Act later struck down by the Supreme Court in Casey.). For example, in 2012 when the Pennsylvania Legislature passed an omnibus bill affecting a number of matters of public welfare, it included a complete elimination of the category of “general assistance.” I and others were asked to draft an amicus brief for the Pennsylvania Supreme Court on the historical origins and judicial application of Pennsylvania’s state constitutional legislative procedure restrictions. There was, of course, no substantive reason why the legislature could not eliminate general assistance. However, the tactic of using an omnibus, multi-subject piece of legislation raised eyebrows among those who were aware of the state constitutional procedural restrictions applicable to the Legislature. Without going into detail, we prevailed in that litigation in 2018 and the state government was obligated to reinstate this category of public assistance. (Note: My name was not listed on the brief because I am not a member of the Pennsylvania Bar.)
As Judge Sutton points out in his book (p. 258) such procedural victories leave open the possibility that the legislature could reenact the challenged provision, following the proper procedure. Here, the Pennsylvania Legislature attempted to do that in 2019, but it again utilized a bill that contained a number of different subjects. When it was challenged again, we filed a similar amicus brief, but this time lost, at least preliminarily. This illustrates another of the points Judge Sutton makes about judicial review of these kinds of procedural challenges to the enactment of statutes: it is very difficult to enunciate a rule that can differentiate an invalid law that has more than one subject, was amended on its way through the legislature to change its original purpose, as an invalid title, etc. (p. 259). Consequently, often these decisions appear to be result-oriented. Based on this view, Sutton, as he has in many other circumstances, suggests that judicial review should be significantly restrained.
Another very important concern about enforcement of the state constitutional legislative procedure requirements is that omnibus, multi-subject bills is that when they are presented to the governor it often provides her with a “Hobson’s choice.” In our case both bills including the termination of general assistance really needed to be passed to fund important government programs. Despite the governor’s opposition to the elimination of general assistance, he needed to sign the bills into law. This legislative/executive relationship often entails a sort of cat and mouse game.
The other focus of Judge Sutton’s treatment of state legislature’s concerns the hot-button topic of partisan gerrymandering. His discussion takes place within the larger context of making state legislative branches more representative. (Chapter 8). State legislatures, of course, have the power to redistrict both Federal House of Representatives districts as well as state legislative (House and Senate) districts. This power was denied to the federal government at the Founding.
Now that the United States Supreme Court has closed off any federal judicial avenue for challenging partisan gerrymandering, the matter remains for first, state legislatures, and then state courts. Judge Sutton provides an excellent discussion of the Pennsylvania and North Carolina Supreme Court decisions striking down partisan gerrymanders for congressional districts in their states. Here again, he argues for significant judicial restraint on the work of the state legislature.
One of the most important overall features of Sutton’s new book is that he not only provides a deep analysis of a number of topics concerning the distribution of powers in the states, but he also makes an effort in each case to make important suggestions for the future. They should be given serious consideration.