WSJ – Jan. 29, 2022

‘Who Decides?’ Review: The Supreme Court, the States and the Contest for Control

Political conflicts, legal battles and overlapping claims set one level of government against another.

By Josh Blackman | 1071 words

Recently the Supreme Court halted the federal vaccine-or-test mandate by a 6-3 vote. This split can be explained along the usual ideological lines. The six conservatives blocked the requirement, while the three progressives approved it. But the votes can be more naturally split based on a single, evergreen question: Who decides? Indeed, that question was posed in both Justice Neil Gorsuch’s concurrence and the joint dissent by the court’s progressives. The dissenters would have allowed the executive branch to impose the mandate. The majority held that Congress, and not bureaucrats, must expressly authorize it. Justice Gorsuch’s concurrence suggested that such an intrusive power is reserved to the states and not to the federal government.

The question that hovered over the court’s decision is at the center of “Who Decides? States as Laboratories of Constitutional Experimentation.” Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, carefully delineates the conflicts, contests and overlapping claims between the federal government, state governments and the people. He is well-positioned to do so. For the past two decades, while serving as a federal appellate judge, Judge Sutton has become—in his spare time, as it were—an evangelist for the underappreciated importance of state constitutional law.

In “51 Imperfect Solutions” (2018), Judge Sutton showed the many ways in which the states (along with the District of Columbia) can try, often with limited success, to resolve their internal policy disputes. “Who Decides?” is a kind of sequel. Here he traces the relationship among state courts, state legislatures and state executives and explores their connections with federal courts, Congress and the presidency. Judge Sutton’s account is deeply researched and offers a wealth of historical precedents and case studies. Three examples may suffice to capture the broad sweep of the book’s arguments.

First, Judge Sutton compares the power of legislatures to draw electoral maps with the power of courts to rule on the constitutionality of laws. The problems with skewed— “gerrymandered”—legislative maps are well known. Salamander-shaped districts, Judge Sutton writes, are drawn to help “interest groups get what they want—all the better without having to earn the majority support usually needed to get it.” This “poisonous” distortion, he says, “undermines confidence in government.” Yet courts can function in a similarly undemocratic fashion and practice a kind of gerrymandering of their own. Courts aren’t merely guilty of “bending elected districts” to help or hurt one party by asserting “power over selected issues,” they in fact make legislative districts “irrelevant.” The decisions of life-tenured federal judges, Judge Sutton notes, “cannot be overruled by the people.” In this regard, legislative gerrymanders are far less pernicious than the judicial gerrymanders.

Following such reasoning, incidentally, the Sixth Circuit recently upheld an Ohio restriction on abortion. Judge Sutton, who wrote a concurrence in that case, warned that a “politicized judiciary cannot be an independent judiciary.” When courts assert themselves into matters “over which people have legitimate disagreements,” he observed, they take on the “worst features of gerrymandering: a warping of democracy and a perceived manipulation of the decision-making process.” Still, the legislative branch is not without fault.

Judge Sutton also shows how Congress and state legislatures have failed to guard their lawmaking power. They have stopped drafting most laws with precision and have transferred, or delegated, their lawmaking power to the executive branch. So who gets to decide now? Today bureaucrats who don’t stand for election write most of the rules that govern us.

The federal and state judiciaries, Judge Sutton observes, have responded differently to the delegation problem. For much of the past century, the U.S. Supreme Court has looked the other way when Congress relinquishes its lawmaking powers to administrative agencies. By contrast, “state courts frequently have imposed limitations” on delegation. Nearly two-dozen states require legislatures to set “specific standards” that grant agencies rule-making power. And the state judiciaries stand ready to enforce such limits. The Florida Supreme Court, for example, halted a law that failed to “limit the Governor from exercising completely unrestricted discretion.” In short, the legislature, and not the governor, gets to decide.

Finally, Judge Sutton turns to a neglected aspect of the separation of powers: the relationship between state and local governments. When most people need to interact with the government, they don’t descend on Washington or travel to their state capital. Most politics really is local: city councils, school boards, zoning commissions, town halls. Through “federalism within federalism,” Judge Sutton writes, “local power allows smaller groups of citizens to audition innovative fixes to policy challenges.” He points to the many ways in which localities have come up with new ways of managing education policy and assessing property taxes.

Yet there are still checks on that power. Generally states restrict the types of laws that local governments can enact. Municipal regulations that exceed those limits (for instance, New York City’s ban on sugary drinks) may be pre-empted. In the other direction, some states have empowered “home rule,” which allows local governments to regulate such matters as speed limits. Whether a city or state gets to decide a particular matter varies widely from place to place.

The contest between pre-emption and home rule doesn’t easily reduce to party politics. During the pandemic, red cities in blue states resisted Covid restrictions, like mask mandates and lockdowns. Meanwhile, blue cities in red states tried to impose Covid restrictions only to be stymied by state governments. In Texas the attorney general has sued the city of Austin to block its public-health measures.

Judge Sutton recounts many other ways in which state and federal governments decide differently. Some state governors have a line-item veto; the Supreme Court has held the president can’t exercise one. The people can easily amend state constitutions; the U.S. Constitution is virtually impossible to amend. The federal executive branch is unitary, and the attorney general answers to the president. State executive-branch officials are often independently elected and can contest the governor’s powers. The recent investigation of New York Gov. Andrew Cuomo by Attorney General Letitia James illustrates this state-level power relation.

The state and federal governments, Judge Sutton shows, can function as “laboratories” for all sorts of novel experiments in governance—but history teaches that conflicts over jurisdiction and authority will always arise. It is then that the question “Who decides?” becomes paramount. Judge Sutton’s enriching analysis offers a thorough survey of the many ways to answer this question. But in the end, that decision belongs to us all.

Mr. Blackman, a professor at the South Texas College of Law, is a co-author of “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”■

The Wall Street Journal