Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States
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,' must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state's. system of governance. But rarely does it attempt to under- 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 comparative method, state constitutional law takes on a new level of richness. 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. Apart from this argument, suggested by many advocates of the new judicial federalism, 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 peculiar features of their own systems of governance. 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. 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 other reason than, in the state court's view, the Supreme Court has gotten it wrong."'
Yet, it should come as no surprise that, in practice, a lockstep approach is rarely followed. State courts sometimes reach different results than their federal counterparts in deciding issues of constitutional law because states are distinct institutions of governance, in terms of their sizes, decisionmaking structures, populations, and histories. In recent years, institutional features of governance have received much attention in a growing literature known as "comparative institutional analysis."8 Unlike character-based approaches to comparative state constitutionalism, which view constitutional interpretation as each state's attempt to identify the ethos of its polity, an institutional approach attempts to develop general observations about how governmental structures influence or demand distinct approaches to constitutional interpretation. A comparative institutional explanation of constitutional difference begins from the assumption that structural differences affecting constitutional interpretation outweigh structural similarities, and that these institutional differences provide a better explanation for diverging interpretive approaches than differences in culture or region.
In this Article I set out to explore how, if at all, institutional analysis *can shed light on state constitutional interpretive practice and the understanding of state constitutional law. I focus my inquiry on one particular jurisprudential aspect of state constitutions-separation of powers-but the analysis has implications for other constitutional issues. Separation of powers is a broad set of democratic principles. These principles find expression in a variety of jurisprudential doctrines, but two particular doctrines have greatly influenced the power of agencies to promulgate rules and to take other regulatory action: (1) the nondelegation doctrine, which places limits on the ability of a legislative body to delegate decisionmaking authority to an agency; and (2) limitations on legislative oversight by the exercise of unilateral actions that trump agency decisions absent some executive acquiescence.
Part II of this Article introduces the approach of federal courts in deciding separation of powers matters. In the federal system, post- New Deal separation of powers jurisprudence has recognized the relevance of these doctrines but supports different enforcement levels for each. Federal courts have weakly enforced the nondelegation doctrine by applying something similar to the test endorsed in the 1960s by Kenneth Culp Davis. Davis urged courts to accept a delegation of power made with a vague "intelligible principle!' so long as adequate "procedural safeguards" are in place." At the same time, at least since the U.S. Supreme Court's decision in INS v. Chadha, limits on unilateral legislative trumps on executive exercises of delegated power, such as the legislative veto, have been strongly enforced by federal courts. When these two aspects of separation of powers are considered together, our federal system might be said to endorse a strong prodelegation separation of powers jurisprudence- one that generally favors delegation to administrative agencies, while precluding congressional delegation with strings attached. The founders of our Constitution could not possibly have envisioned the scope and size of the modern administrative state. Yet, I shall argue, the prodelegation position shares some intellectual principles with the Federalist political science of the founding era, which recognized separation of powers but favored a blended or mixed conception of separation of powers over a more rigid interpretation that was popular in state constitutions at the time.