The past decade has witnessed a striking resurgence in interest in executive review--the notion that the President, no less than the judiciary, has the power to interpret and enforce the U.S. Constitution. (1) Proponents of this view span the political spectrum from Michael Stokes Paulsen on the right to Larry Kramer on the left. (2) While virtually everyone agrees that the President may veto legislation or pardon individuals convicted under a statute she considers unconstitutional, there has been considerable debate over whether the power of executive review includes the authority to refuse to enforce federal statutes that the President believes to be unconstitutional. (3) It is this component of executive review that serves as the fault line in the constitutional discussion.
To date, the debate about the legitimacy and desirability of executive review has focused exclusively on the federal presidency. (4) Despite the well-founded revival of interest in state constitutionalism, (5) commentators have uniformly ignored the question of whether and to what extent state governors or other state officials may engage in executive review. This omission is all the more striking because one cannot simply transplant the federal model of executive review to the states. In contrast to the Hamiltonian federal executive with its unitary executive structure, (6) state executives are not unitary. Instead, state constitutions fragment executive authority, providing for the direct popular election of several state officials and establishing relatively independent local governments. (7) This fragmentation has serious implications for executive review at the state level.
Understanding these implications and how executive review works at the state and local levels is vital for both constitutional theory and practice. The vast bulk of executive officials in the nation work not for the President but for the fifty state governments and myriad local commissions and councils. While the federal government has roughly 2.7 million nonmilitary officials and employees, (8) state and local governments have 15.8 million officials and employees. (9) Moreover, though the federal government is responsible for several vital areas of national life, the bulk of the regulatory and public policy programs that affect the daily lives of individuals--such as (to name just a few) education, domestic relations, land use, transportation, and professional and business licensing--are created and administered by state and local governments. Indeed, Americans interact more often with state or local officials, such as police officers, clerks at the Department of Motor Vehicles, and state university registrars, than they do with federal regulators. Given the prevalence and importance of state and local government in American life, it is crucial to understand to what extent, if any, state and local officials may engage in executive review.
Moreover, state and local executive review, though unexplored by academic commentators, has real, contemporary relevance for all Americans. Most recently, the authority of executive officials to refuse to enforce putatively unconstitutional laws attracted nationwide attention during the controversy regarding the issuance of marriage licenses to same-sex couples in San Francisco, California and Multnomah County, Oregon. There, local executive officials, acting on their own views of their respective state constitutions' guarantees of equality, issued marriage licenses to same-sex couples over the objection of their respective Governors and other state officials. (10) Unable to command the county officials to stop their actions, the Governors of the two states sought judicial relief, and both state supreme courts ultimately enjoined the county officials from issuing marriage licenses to same-sex couples in violation of state statutes. (11) Though the media was preoccupied with the furor surrounding the issue of same-sex marriage, the courts did not pass on the constitutionality of same-sex marriage--indeed, they conspicuously and expressly refused to address the issue. (12) Rather, each court rested its decision on the ground that the local officials did not have the authority to engage in executive review and to disregard statutory duties on constitutional grounds, even if the officials' constitutional concerns were valid. (13)
Although far from the only time the issue of executive review has arisen, the controversy regarding the California and Oregon officials' actions and the courts' responses to them provides an illuminating perspective from which to assess executive review at the state and local levels. The California and Oregon experiences demonstrate two interrelated propositions. First, unlike the Federal President, state governors often lack any meaningful ability to control state or local executive officials' exercise of executive review authority because of state constitutional provisions fragmenting executive authority. It is this fragmentation of the executive that makes such constitutional crises possible and, more importantly, inevitably leads governors or other officials to seek judicial resolution.
Second, there is a variety of ways in which state courts may respond to these claims of interpretive authority by autonomous executive officials. One model, which I label the judicial exclusivity model, rules out executive review on constitutional grounds because, according to this view, the task of enforcing the constitution is exclusively for the courts. (14) Another model, which I call the legislative model, accepts in principle the constitutional propriety of executive review but cedes to the state legislature the power to determine which officials may consider constitutional claims in performing their statutory duties. (15) Still a third model, pressed unsuccessfully by the county officials in San Francisco and Multnomah County, asserts that there is a constitutional right and corresponding obligation for all executive officials to interpret and enforce the constitution. Each of these models contains variations, but stated at this broad level of generality, these three models depict the terrain over which the various players in these debates have fought.
The central claim of this Article is that, as a constitutional matter, the legislative model best accords with state constitutional text and structure. In making this claim, I challenge the predominant judicial exclusivity model, which, I argue, rests upon an outdated and erroneous understanding of the respective roles of the three branches of government in interpreting and enforcing the constitution. At the same time, I also reject the diametrically opposite theory that all executive officials have a constitutional right to engage in executive review. While I acknowledge that constitutional officers, such as the governor, may engage in executive review as part of the discharge of their constitutionally assigned powers and duties, I endorse and defend the legislative model, which leaves it to the legislature to determine whether and to what extent the myriad nonconstitutional officers employed by state and local governments may engage in executive review.
Of course, one might doubt whether such a global assessment of state executive review can be made in a coherent or profitable fashion. After all, there are fifty states, each with its own constitution. Nevertheless, while there is no denying that differences among state constitutional texts exist, there is also no denying that substantial similarities exist. And, when it comes to assessing executive review, the pertinent constitutional provisions do not differ in a material way. For example, every state has adopted a tripartite system of government with a popularly elected governor as head of the executive branch. (16) Moreover, most state constitutions contain an express provision regarding the separation of powers (rather than relying on such a principle by implication as does the U.S. Constitution), and the wording of the provisions is strikingly similar. (17) These features of state constitutional structure provide the substrate of arguments regarding executive review, and because of their similarity across states, one can intelligibly assess state executive review as a general phenomenon.
Part I sets the stage for assessing the three judicial models by identifying the extent to which state constitutions fragment executive authority. This Part demonstrates that it is the fragmented nature of executive authority that leads to intraexecutive constitutional disputes, such as those involving the issuance of marriage licenses to same-sex couples. These disputes, in turn, often necessitate judicial involvement to mediate and resolve the constitutional disagreement. Part II begins the investigation of how courts address these intraexecutive disputes, taking up the judicial exclusivity model, which rules out executive review and the intraexecutive disputes that it produces as illegitimate because the constitution is exclusively for the judiciary to enforce. Though most states have adopted this approach, this model rests on an erroneous conception of the separation of powers and the respective roles of the three branches in interpreting and enforcing the constitution. Indeed, contrary to conventional wisdom, I argue that there is no constitutional prohibition against executive review even by local officials--the circumstance that engenders the most fear among courts. Part III considers the opposite extreme: that all executive officials have a constitutional right to engage in executive review. As I demonstrate, this view likewise rests on a faulty understanding of the powers and obligations of executive officials.
Between these two extremes lies the legislative model, which Part IV describes and endorses. The legislative model assigns to the legislature the responsibility for determining whether and...
