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Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States Jim Rossi

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Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States Jim Rossi Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 1999 Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States Jim Rossi Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 Vanderbilt Law Review. 1167 (1999) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/552 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States Jim Rossi 52 Vand. L. Rev. 1167 (1999) This Article applies comparative institutional analysis to sepa­ ration of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like re­ strictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these sepa­ ration of powers contexts. Most state courts, unlike their federal coun­ terparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with Federalist and Antifederalist separation of powers principles, respectively. Once the contrast is drawn, the Article develops a descriptive explanation for this divergence in jurisprudential approach. After discussing the pitfalls of common American heritage, textual, and culture-based approaches to interpreting separation of powers in state constitutionalism, the Article presents institutional analysis as a better explanation for divergences in interpretive approach. Specifically, the Article discusses institutional design in the legislative and executive branches of states, and its interrelationship with faction and capture of the agency decisionmaking process. Attention to institutional design can explain adherence to the nondelegation doctrine in many states, and can also explain the explicit and sweeping presence of legislative vetoes in some states. In addition, attention to institutional design features and their interrelationship with faction in the decisionmaking process can help to shed light on doctrinal nuances of state court ap­ proaches to upholding and striking certain delegations, such as delega­ tions to private boards and to federal agencies. Thus, an appreciation of the role of institutional design is a necessary predicate to the devel­ opment of an independent state theory of separation of powers. VANDERBILT LAW REVIEW VOLUMB52 OCTOBER 1999 NUMBER5 Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States Jim Rossi" I. INTRODUCTION··································································· 1168 II. SEPARATION OF POWERS AS A CONSTRAINT ON AGENCY RULEMAKING IN THE FEDERAL SYSTEM ............................ 1174 A. The Nondelegation Doctrine ................................. 1177 B. INS v. Chadha· Judicial Invalidation of the Legislative Veto ..................................................... 1181 C. Connecting the Two Strands: The Convergence of Rationales for Separation of Powers .................... 1185 III. SEPARATION OF POWERS AS A CONSTRAINT ON STATE AGENCY RULEMAKING ............................................ 1187 A. Separation of Powers Provisions in State Constitutions ......................................................... 1190 B. State Approaches to Nondelegation ...................... 1191 1. ''Weak'' Nondelegation States ................... 1191 2. "Strong'' Nondelegation States ................. 1193 * Patricia A. Dore Associate Professor of State Administrative Law, Florida State University College of Law. Thanks to members of the National Association of Administrative Rules Review, for giving me the opportunity to explore this topic in a presentation at the Council of State Governments 1997 Annual Meeting in Honolulu, Hawaii. Since then, the Article has benefited from comments by Matthew Adler, Scott Boyd, James Gardner, John Gedid, Steven Gey, Jessica Korn, Harold Krent, Jerry Mashaw, Robert Pushaw, John Rohr, Joshua Sarnoff, Mark Seidenfeld, Peter Strauss, Alan Tarr, and Robert Williams. I am grateful to them for their encouragement and (more important) criticism and te Mary McCormick for her assistance with research. All errors and misinterpretations are my own, not theirs. 1167 1168 VANDERBILT LAW REVIEW [Vol. 52:1167 3. ''Moderate" Nondelegation Doctrine .......... 1198 c. Rules Review and Separation of Powers in the States ...................................................................... 1201 IV. STATE CONSTITUTIONAL INTERPRETATION AND INSTITUTIONAL DESIGN ...................................................... 1216 A. The Limits of Common American Heritage, Textual, and Character Interpretivism .................. 1217 1. The "Common American Heritage" Approach ..................................................... 1218 2. The Textual Approach ................................ 1220 3. The ''Political Culture" Approach .............. 1221 B. Institutional Design, the Legacy of Antifederalist Separation of Powers Ideals, and State Constitutional Interpretation ................................. 1222 1. Institutional Design and Nondelegation Doctrine ...................................................... 1223 2. Institutional Design and the Need for More Continuing Legislative Control, Not Just Oversight ..................................... 1229 3. Constitutional Interpretation and Institutional Design ................................... 1232 v. CONCLUSION ...................................................................... 1238 I. INTRODUCTION In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts, 1 must look to extra-textual interpretive tools to aid in its decision­ making task. The literature on state constitutional law provides im­ portant insights into how interpretation operates within a single state's. system of governance.2 But rarely does it attempt to under- 1. See generally PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION (1991); RONALD DWORKIN, LAW'S EMPIRE (1986). 2. Often this occurs in centennial symposia celebrating state constitutions. See generally Gordon B. Baldwin, Celebrating Wisconsin$ Constitution 150 Years Later, 1998 WIS. L. REV. 661 (introducing symposium issue). 1999] INSTITUTIONAL DESIGN 1169 stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ. This is unfortunate. Understood through the lens of a com­ parative method, state constitutional law takes on a new level of rich­ ness. Of course, many have argued that state constitutions are unique and that state constitutional interpretation ought to adjust to the "character" of the people of a state or region, suggesting a variety of distinct interpretive approaches between the states. 3 Apart from this argument, suggested by many advocates of the new judicial fed­ eralism, 4 there is little discussion of state courts' divergence in result from federal courts in deciding similar constitutional issues. In fact, in contrast-and perhaps in reaction-to character­ based interpretive arguments, some have suggested that state courts seek out common American values, disregarding or discounting pecu­ liar features of their own systems of governance. 5 According to Paul Kahn, efforts of state courts to ground constitutional interpretation in "unique state sources," whether textual or attitudinal, is anachronis­ tic, because Americans identify with a national community and share fundamental values.6 James Gardner, a consistent critic of the new judicial federalism, also endorses a notion of national unity in state constitutional interpretation. Gardner argues that a state court should "part company with the United States Supreme Court for no 3. For example, Robert Post writes that "[c]onstitutional law is fundamental because it reflects and embodies the essential political ethos that makes governance possible within a particular culture." Robert C. Post, The Challenge of State Constitutions, in CONSTITUTIONAL REFORM IN CALIFORNIA: MAKING STATE GOVERNMENT MORE EFFECTIVE AND RESPONSIVE 45, 45 (Bruce E. Cain & Roger G. Noll eds., 1995). See also A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873, 938-39 (1976) (noting state constitution is a "mirror of fundamental values"). The judges and justices sitting on their state's highest courts frequently claim that their constitutions reflect unique values. See, e.g., Shirley S. Abrahamson, Reincarnation of State Courts, 36 SW. L.J. 951, 965 (1982) (Wisconsin Supreme Court Justice, lecturing that a state constitution should
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