” Who’s deciding ? » Review: The Supreme Court, the States and the Race for Control


Recently, the Supreme Court discontinued the federal vaccine or test mandate by a vote of 6 to 3. This split is explained along the usual ideological lines. The six conservatives blocked the demand, while the three progressives approved it. But votes can be more naturally divided based on one lingering question: who decides? Indeed, this question was asked with both Justice Neil Gorsuch’s agreement and the joint dissent of the court’s progressives. Dissenters would have allowed the executive to impose the mandate. The majority felt that Congress, not the bureaucrats, should expressly authorize it. Justice Gorsuch’s agreement implied that such intrusive power is reserved for the states, not the federal government.

Who’s deciding ? : states as laboratories for constitutional experimentation

By Jeffrey S. Sutton

Oxford University Press

496 pages

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The question that hovered over the court’s decision is at the center of “Who decides?” States as laboratories for constitutional experimentation. Jeffrey Sutton, Chief Justice of the United States Court of Appeals for the Sixth Circuit, carefully delineates the overlapping disputes, disputes, and claims between the federal government, the state governments, and the people. He is well placed to do so. Over the past two decades as a federal appellate judge, Justice Sutton has become — in his spare time, so to speak — an evangelist of the understated importance of states’ constitutional law.

In “51 Imperfect Solutions” (2018), Judge Sutton showed the many ways states (as well as the District of Columbia) can try, often with limited success, to resolve their internal political disputes. “Who’s deciding ?” is a kind of sequel. Here, he traces the relationship between state courts, state legislatures, and state executives and explores their connections to federal courts, Congress, and the presidency. Justice Sutton’s account is extensively researched and offers a wealth of historical precedents and case studies. Three examples may suffice to grasp the breadth of the book’s arguments.

First, Justice Sutton compares the power of the legislatures to draw up electoral maps with the power of the courts to rule on the constitutionality of laws. The problems with biased — “gerrymandered” — legislative maps are well known. Salamander-shaped districts, writes Justice Sutton, are designed to help “interest groups get what they want, all the better without having to win the majority support usually necessary to get it.” . This “toxic” distortion, he says, “undermines trust in government.” Yet courts can operate just as undemocratically and practice a kind of gerrymandering themselves. Courts are not merely guilty of “hijacking elected constituencies” to help or hurt a party by asserting “power over selected matters”, they are actually rendering legislative constituencies “irrelevant”. Federal judges’ decisions for life, Justice Sutton noted, “cannot be overruled by the people.” In this regard, legislative gerrymanders are far less pernicious than judicial gerrymanders.

Following such reasoning, incidentally, the Sixth Circuit recently upheld an Ohio restriction on abortion. Justice Sutton, who drafted an agreement in the case, warned that a “politicized judiciary cannot be an independent judiciary”. When courts impose themselves on issues “on which people have legitimate disagreements”, he observed, they adopt the “worst characteristics of gerrymandering: a distortion of democracy and a perceived manipulation of the decision-making process”. However, the legislature is not without fault.

Justice Sutton also shows how Congress and the state legislatures have failed to protect their legislative power. They stopped writing most laws with precision and transferred, or delegated, their legislative power to the executive. So who decides now? Today, bureaucrats who don’t run for office write most of the rules that govern us.

The federal and state court systems, observes Justice Sutton, have responded differently to the problem of delegation. For much of the past century, the United States Supreme Court has turned a blind eye when Congress relinquishes its law-making powers to administrative agencies. In contrast, “state courts have frequently placed limits” on delegation. Nearly two dozen states require legislatures to set “specific standards” that grant agencies rule-making power. And state court systems are prepared to enforce such limits. The Florida Supreme Court, for example, struck down a law that did not prevent the governor from exercising his discretion without restriction. In short, it is the legislator, not the governor, who decides.

Finally, Justice Sutton examines a neglected aspect of the separation of powers: the relationship between state and local governments. When most people need to interact with government, they don’t come down to Washington or go to their state capital. Most policies are truly local: municipal councils, school boards, zoning commissions, town halls. Through “federalism within federalism,” writes Justice Sutton, “local power enables smaller groups of citizens to audition for innovative solutions to policy challenges.” It highlights the many ways localities have found new ways to manage education policy and assess property taxes.

Yet, there are still checks on this power. Generally, states limit the types of laws that local governments can enact. Municipal regulations that exceed these limits (for example, New York City’s ban on sugary drinks) can be preempted. Going the other way, some states have tightened “bylaws,” which allow local governments to regulate issues like speed limits. The decision of a city or state on a particular issue varies greatly from place to place.

The struggle between preemption and autonomy is not easily reduced to party politics. During the pandemic, red cities in blue states have resisted Covid restrictions like mask mandates and lockdowns. Meanwhile, blue cities in red states attempted to impose Covid restrictions only to be blocked by state governments. In Texas, the attorney general sued the city of Austin to block its public health measures.

Justice Sutton recounts many other ways state governments and the federal government decide differently. Some state governors have veto power over the article; the Supreme Court has ruled that the president cannot exercise one. The people can easily change state constitutions; the US Constitution is virtually impossible to amend. The federal executive power is unitary and the attorney general answers to the president. State executive officials are often independently elected and may challenge the powers of the governor. The recent investigation of New York Governor Andrew Cuomo by Attorney General Letitia James illustrates this power relationship at the state level.

State and federal governments, Justice Sutton shows, can function as “laboratories” for all sorts of innovative experiments in governance, but history teaches that conflicts of jurisdiction and authority will always arise. It is then that the question “Who decides?” becomes essential. Justice Sutton’s insightful analysis offers a thorough overview of the many ways to answer this question. But ultimately, that decision is up to all of us.

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