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Who Decides? Depends on What the Federal Government Allows<\/strong><\/p>\n Clark L. Hildabrand & Ross C. Hildabrand[1]<\/a><\/p>\n \u00a0<\/strong><\/p>\n The familiar adage reminds us not to judge a book by its cover.\u00a0 But the contrast between the cover for this book, Who Decides? States as Laboratories of Constitutional Experimentation<\/em>, and the cover for one of Chief Judge Jeffrey S. Sutton\u2019s previous books on state constitutional law[2]<\/a> provides insight into what ails state constitutional law.\u00a0 Judge Sutton\u2019s earlier book neatly arrayed each of our fifty states side-by-side in rows.\u00a0 These are dignified, equal sovereigns.\u00a0 This book, in contrast, stacks each state into the dome of the Federal Capitol\u2019s rotunda.\u00a0 Instead of the Statue of Freedom <\/em>which stands atop the real-life Capitol, topping the book\u2019s dome is a shape that looks like a fork with a handle sharpened into a spike.\u00a0 This is the federal power that looms over the States, ready to subsume them.<\/p>\n Lest that picture sound too grim, Judge Sutton\u2019s book does its best to defend the project of state constitutional law.\u00a0 As an advocate,[3]<\/a> judge,[4]<\/a> and educator,[5]<\/a> Judge Sutton has stood up for the States when others would not.\u00a0 And his latest contribution to the conversation about state constitutional law is a graceful and enlightening explanation of the myriad ways States structure their governments.\u00a0 The Federal Constitution is not the only way to organize a republican government.\u00a0 We turn first to one of the stories Judge Sutton highlights in his book\u2014the ingenuity of state governments adopting the plural executive model\u2014before returning to the federal elephant in the room.<\/p>\n The Plural Executive Model Shows That the Federal Way Is Not Always the Best Way<\/strong><\/p>\n For starters, our experiences as Tennesseans with family ties to the Commonwealth of Kentucky confirm that the federal unitary executive model is not always the best<\/em> model for every sovereign.\u00a0 As Judge Sutton explains, \u201c[a]t the national level, the US Constitution places all executive authority in one president.\u201d[6]<\/a>\u00a0 \u201cThe President controls the executive-branch officers through the singular authority to choose all cabinet members, whether it\u2019s the attorney general, the secretary of defense, the secretary of state, the secretary of the treasury, the secretary of health and human services, and on and on.\u201d[7]<\/a>\u00a0 That is not the approach of most States.\u00a0 All but three states use a plural executive model which entails simultaneously granting different parts of the executive power to different individuals.[8]<\/a>\u00a0 Tennessee, for example, popularly elects its governor,[9]<\/a> but the Tennessee Supreme Court possesses the authority to appoint the Tennessee Attorney General.[10]<\/a><\/p>\n While Tennessee is unique in granting its supreme court this power, one of the worst moments in its history demonstrates the wisdom of adopting the plural executive model as a check on the power of the governor.\u00a0 In the fall of 1978, Republican Lamar Alexander defeated incumbent Governor Ray Blanton.\u00a0 The Democratic governor descended further into alcoholism\u2014\u201cdrinking vodka in the morning and by ten o\u2019clock, he\u2019s just incomprehensible\u201d[11]<\/a>\u2014and sold pardons to fifty-two prisoners, including twenty murderers.[12]<\/a>\u00a0 In response, the governor-elect worked across the political aisle with the Democratic leaders of the General Assembly and Tennessee Attorney General Bill Leech, a \u201cyellow dog\u201d Democrat, to figure out a legal way to swear Lamar Alexander in early and thus remove the corrupt governor from office.[13]<\/a>\u00a0 Thanks to the independent legal advice of General Leech, they succeeded in peacefully carrying out what the leader of the state senate called \u201c[i]mpeachment, Tennessee style.\u201d[14]<\/a><\/p>\n Kentucky\u2019s experience in recent years further demonstrates the benefits of holding separate elections for governor and attorney general.\u00a0 In 2019, Kentucky\u2019s state executive elections yielded odd results. \u00a0Andy Beshear, the Commonwealth\u2019s former attorney general and the Democratic candidate for governor, defeated Matt Bevin, the incumbent Republican governor, by a margin of less than 0.4%, around five thousand votes.[15]<\/a>\u00a0 Despite that Democratic victory, the Republican candidates won every other executive election with healthy margins.[16]<\/a>\u00a0 The reason for Governor Bevin\u2019s anomalous loss was that he had taken aggressive action to fix Kentucky\u2019s underfunded pension system.\u00a0 According to 2017 data, Kentucky had the worst funded pension system in the entire country with a funded ratio of only 33.9%.[17]<\/a>\u00a0 That means the Commonwealth and its employees had failed to pay 66.1% of what they needed to sustain the pensions, which had the thirteenth highest payout per retiree despite Kentucky\u2019s low cost of living.[18]<\/a>\u00a0 Governor Bevin successfully stabilized the pensions,[19]<\/a> but teacher walkouts throughout the Commonwealth left many thinking that he had gone too far, too fast.[20]<\/a><\/p>\n While Kentuckians wanted a governor with a less aggressive approach to the pension issue, they still wanted other executives to reflect the generally conservative views of the Bluegrass State.\u00a0 That is most evident with newly elected Attorney General Daniel Cameron.\u00a0 For example, General Cameron successfully defended Republican legislation that curbed the governor\u2019s executive power concerning the COVID-19 pandemic.[21]<\/a> \u00a0Most recently, the U.S. Supreme Court heard arguments in October regarding the Kentucky Attorney General\u2019s ability to defend a state abortion law.[22]<\/a>\u00a0 As attorney general, Andy Beshear had left the defense of the law to then\u2011Governor Bevin, but General Cameron wanted to intervene to defend the law after now\u2011Governor Beshear refused to do so.[23]<\/a>\u00a0 The Supreme Court seems inclined to respect Kentucky\u2019s plural executive model because, as Justice Kagan pointed out at argument, it \u201cwould be an extremely harsh jurisdictional rule or at least a counterintuitive rule if it ended up in a place where nobody was there .\u00a0.\u00a0. to defend Kentucky\u2019s law, even though there are significant parts of Kentucky\u2019s government that still want .\u00a0.\u00a0. its law defended.\u201d[24]<\/a><\/p>\n At the same time, we share Judge Sutton\u2019s inclination \u201cthat the plural executive and the unitary executive are each right for the governments that have them.\u201d[25]<\/a>\u00a0 There are good reasons for the federal government sticking with the unitary executive model.\u00a0 The original reason\u2014the President\u2019s decisive role in providing for national defense\u2014remains a good one.[26]<\/a>\u00a0 But a better reason is one that did not exist for the first half of our country\u2019s existence:\u00a0 the need to rein in the millions of federal bureaucrats.[27]<\/a>\u00a0 Civil service laws and unrepresentative \u201cindependent\u201d agencies have already siphoned off some of the Federal Executive\u2019s power,[28]<\/a> and a plural executive would dilute his influence on federal policy even further.<\/p>\n The States Have Learned to Act Like Territories Because the Federal Courts Often Do Not Treat Them Like Sovereigns<\/strong><\/p>\n But we cannot ignore the specter that haunts state constitutional law.\u00a0 Judge Sutton ponders why state judges and attorneys too often interpret their own constitutions in lockstep with federal law.[29]<\/a>\u00a0 The reason, as he concedes at points in the book,[30]<\/a> is that the question of who decides usually has the following answer:\u00a0 the federal courts.<\/p>\n To use one of Judge Sutton\u2019s examples, there was no reason for Montana Supreme Court justices in a 2011 case to consider whether the Montana Constitution provided less protection for campaign speech because the U.S. Supreme Court had already broadened federal <\/em>free speech rights in Citizens United<\/em>.[31]<\/a>\u00a0 The state supreme court did its best to distinguish its statute from the federal one in Citizens United<\/em>. \u00a0But \u201c[w]hat you might think would happen next did happen next\u201d after the court upheld the Montana law:\u00a0 The losing party appealed to the Federal Supreme Court, and the Court reversed the state decision.[32]<\/a> \u00a0\u201c[N]othing would have changed\u201d if the Montana Supreme Court had expended the energy to explain why its own constitution did not provide the same level of protection for campaign speech.[33]<\/a><\/p>\n State judges think of themselves more as judges for cookie-cutter territories than as judges for unique sovereigns because they have grown accustomed to the federal government treating sovereign States as mere territories.\u00a0 Sometimes this is rather literal.\u00a0 In July 2020, with a level of caution bordering on that of Leeroy Jenkins, a 5-4 majority of the U.S. Supreme Court declared that half the State of Oklahoma was still Indian territory.[34]<\/a>\u00a0 That decision upset what had been settled for over a century and jeopardized decades of criminal convictions.\u00a0 The Court, which has never had an Oklahoman among its ranks, does not have to live with the consequences of its decision.\u00a0 We hope the Court reverses course in that line of cases,[35]<\/a> but the fact remains that the most important political issues in our country are usually resolved not by state or local elected officials but by federal<\/em> bureaucrats and federal <\/em>judges.<\/p>\n The Federal Courts Have Facilitated the Usurpation of Local Power and Should Return Power to the States and Their Citizens<\/strong><\/p>\n As Judge Sutton argues, the COVID-19 pandemic has highlighted the strengths of federalism.\u00a0 State \u201cborders add tools and flexibility for fixing the problem.\u201d[36]<\/a>\u00a0 If, say, Governor DeSantis\u2019s Florida had followed Governor Cuomo\u2019s lead in New York by moving \u201celderly men and women .\u00a0.\u00a0. from crowded hospitals to nursing homes,\u201d many more Floridians would have died.[37]<\/a>\u00a0 But, more importantly, the COVID-19 pandemic has broadcasted the raw power of the federal government.\u00a0 The Federal Executive has increasingly pushed its power to the outer limits of whatever federal courts allow.<\/p>\n Consider the nationwide eviction moratoria.\u00a0 First Congress and then, when the statute expired, the CDC issued nationwide prohibitions on evictions.\u00a0 These unprecedented intrusions into the realm of landlord-tenant relations\u2014an area of law mostly left up to the states and local governments\u2014amounted to a massive transfer of wealth from landlords, both large and small, to tenants, whether deserving or not.\u00a0 The Sixth Circuit rightly ruled that the CDC lacked that power,[38]<\/a> but the Supreme Court vacillated.\u00a0 Despite agreeing \u201cthat the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,\u201d Justice Kavanaugh cast the decisive vote to allow the CDC to persist in its lawless action for another month.[39]<\/a>\u00a0 When the CDC sought to extend the illegal moratorium, the Supreme Court finally stepped in to put a stop to it.[40]<\/a><\/p>\n The Federal Executive then attempted to enforce federal vaccination and masking mandates that would stop Americans from voting on COVID-19 policies with their feet.\u00a0 As Judge Sutton opined, at least one of these mandates \u201clikely exceeds [federal] authority\u201d and \u201cassumes authority to regulate an area\u2014public health and safety\u2014traditionally regulated by the States.\u201d[41]<\/a>\u00a0 The federal government, in other words, is attempting to seize still more power from the States.\u00a0 Unless the federal courts stop such illegal actions, States and citizens will find themselves subjects of a nearly unaccountable federal bureaucracy.<\/p>\n And that is the central problem with modern jurisprudence.\u00a0 Judge Sutton posits a question for the reader:\u00a0 Would you trade five of the worst federal court \u201cdecisions over the last seventy-five years that invalidate state or federal laws on federal constitutional grounds\u201d if someone with opposing political views got to do the same?[42]<\/a>\u00a0 We would take that trade in a heartbeat.\u00a0 While we cannot speak for everyone, we think many in Tennessee would give up Citizens United <\/em>or McDonald v. Chicago <\/em>if it meant the State could decide for itself whether to redefine marriage or whether to stop the abortion of unborn Tennesseans.<\/p>\n But neither we nor the States get to decide; only the U.S. Supreme Court gets a choice.\u00a0 Sadly, the Court has grown accustomed to its power to set policies for the entire country and, in past decades, has shown little interest in reining in the federal bureaucracy in its backyard.\u00a0 Nine unelected Justices\u2014really just a majority of five\u2014determine what your rights are and what rights are important enough to enforce.\u00a0 The right of Protestants to sing praises to God in their own churches, clearly covered by the Free Exercise Clause:\u00a0 not worth the Court\u2019s time.[43]<\/a>\u00a0 The right of nonbelievers never to have to see a public-school official praying to God, despite the long history of prayers in Congress and at government meetings:\u00a0 essential.[44]<\/a>\u00a0 The Founders never intended our Republic to become a country not of laws but of five Justices.\u00a0 No one hoped for a nation where most major domestic policy decisions turn on federal fiat instead of local deliberation.<\/p>\n Perhaps for that reason, we always find a little comfort when we drive up to Kentucky to visit our relatives.\u00a0 Somewhere along the way there is a government building with a large cross planted in its front yard for all the world to see.\u00a0 This is not a war memorial in a D.C. suburb or anything else, to the best of our limited knowledge, the Supreme Court\u2019s jurisprudence would approve of.[45]<\/a>\u00a0 It is simply a cross standing as a reminder of Christ\u2019s sacrifice for the sins of fallen man.\u00a0 A federal court would likely rule this display of religiosity unconstitutional, as the Supreme Court has previously ruled that a Kentucky county cannot display the Ten Commandments without a secular purpose for the display.[46]<\/a>\u00a0 That cross stands as a reminder that we once lived in a different country\u2014a country where all <\/em>citizens had a say on the issues of the day, not just five Justices in a swamp on the Potomac River.[47]<\/a>\u00a0 We hope that Who Decides?<\/em> will remind the Court that it can[48]<\/a>\u2014and should[49]<\/a>\u2014entrust more decisions to the States and their citizens.<\/p>\n <\/p>\n <\/p>\n [1]<\/a> Clark L. Hildabrand serves as Assistant Solicitor General for the State of Tennessee and previously clerked for Chief Judge Sutton.\u00a0 Ross C. Hildabrand attends Harvard Law School and is a member of the J.D. class of 2022.\u00a0 This book review reflects only<\/em> their personal views and not<\/em> those of the State of Tennessee or any other employer.<\/p>\n [2]<\/a> Jeffrey S. Sutton, 51 Imperfect Solutions:\u00a0 States and the Making of American Constitutional Law (2018).<\/p>\n [3]<\/a> See, e.g.<\/em>, City of Boerne v. Flores, 521 U.S. 507, 509 (1997).<\/p>\n [4]<\/a> See, e.g.<\/em>, Deboer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev\u2019d sub nom. <\/em>Obergefell v. Hodges, 576 U.S. 644 (2015).<\/p>\n [5]<\/a> See, e.g.<\/em>, Jeffrey S. Sutton et al., State Constitutional Law:\u00a0 The Modern Experience (3d ed. 2019).<\/p>\n [6]<\/a> Jeffrey S. Sutton, Who Decides?\u00a0 States as Laboratories of Constitutional Experimentation 147 (2021).<\/p>\n [7]<\/a> Id. <\/em>at 147-48.<\/p>\n [8]<\/a> Id. <\/em>at 149.<\/p>\n [9]<\/a> Tenn. Const. art. III, \u00a7\u00a02.<\/p>\n [10]<\/a> Tenn. Const. art. VI, \u00a7\u00a05.<\/p>\n [11]<\/a> Tenn. Att\u2019y Gen., Making the Case- \u201cImpeachment, Tennessee style\u201d Part 1<\/em>, YouTube (Aug. 9, 2021), https:\/\/www.youtube.com\/watch?v=Sndyh0oVsqo (quotation available at 16:50-58).<\/p>\n [12]<\/a> Phillip Langsdon, Tennessee:\u00a0 A Political History 389 (2000).<\/p>\n [13]<\/a> Hal D. Hardin, A Day in the Life of a Country Lawyer<\/em>, 64 Tenn. L. Rev. xviii, xviii-xix (1996).\u00a0 General Leech had one of the busiest twenty-four hours possible for an attorney.\u00a0 In that short time span, he argued a case before the U.S. Supreme Court, celebrated the birth of a child, and deposed the governor.\u00a0 Id. <\/em>at xviii.<\/p>\n [14]<\/a> Ken Whitehouse, Where are they now: \u2018Impeachment, Tennessee style<\/em>,\u2019 <\/em>Nashville Post (June 5, 2012), https:\/\/www.nashvillepost.com\/home\/where-are-they-now-impeachment-tennessee-style\/article_6a516551-cbea-520f-abee-ab00b3f082c3.html.<\/p>\n [15]<\/a> Ky. State Bd. of Elections, Official Nov. 5, 2019, Election Results 6 (2019), https:\/\/elect.ky.gov\/results\/2010-2019\/Documents\/2019%20General%20Certified%20Results.pdf (last visited Nov. 19, 2021).<\/p>\n [16]<\/a> Id. <\/em>at 13, 19, 25, 31, 37.<\/p>\n [17]<\/a> Evan Comen, Is Your Money Safe?\u00a0 These States Are Getting Hit Hardest by the Pension Crisis<\/em>, USA Today (Oct. 15, 2019), https:\/\/www.usatoday.com\/story\/money\/2019\/10\/15\/every-states-pension-crisis-ranked\/40302439\/.<\/p>\n [18]<\/a> Id.<\/em><\/p>\n [19]<\/a> See The State Pension Funding Gap: Plans Have Stabilized in Wake of Pandemic<\/em>, Pew Charitable Trusts (Sept. 14, 2021), https:\/\/www.pewtrusts.org\/en\/research-and-analysis\/issue-briefs\/2021\/09\/the-state-pension-funding-gap-plans-have-stabilized-in-wake-of-pandemic.<\/p>\n [20]<\/a> Katie Reilly, How Republican Governor Matt Bevin Lost Teachers and Lost Kentucky<\/em>, Time (Nov. 7, 2019), https:\/\/time.com\/5719885\/matt-bevin-republican-kentucky-teacher-protests\/.<\/p>\n [21]<\/a> Cameron v. Beshear, 628 S.W.3d 61 (Ky. 2021).<\/p>\n [22]<\/a> Cameron v. EMW Women\u2019s Surgical Ctr., P.S.C., 141 S. Ct. 1734 (2021) (granting the petition for writ of certiorari).<\/p>\n [23]<\/a> See <\/em>EMW Women\u2019s Surgical Ctr., P.S.C. v. Friedlander, 831 F. App\u2019x 748 (6th Cir. 2020) (denying General Cameron\u2019s motion to intervene).<\/p>\n [24]<\/a> Transcript of Oral Argument at 54-55, Cameron v. EMW Women\u2019s Surgical Ctr., P.S.C., 141 S. Ct. 1734 (2021) (No. 20-601).<\/p>\n [25]<\/a> Sutton, supra <\/em>note 6, at 176.<\/p>\n [26]<\/a> Id. <\/em>at 176-77.<\/p>\n [27]<\/a> See id. <\/em>at 178 (\u201cPresidential power indeed seems to grow less unitary by the administration.\u201d).<\/p>\n [28]<\/a> See, e.g.<\/em>, Clark Hildabrand, The Geographic (Un)representativeness of the Federal Reserve Board of Governors<\/em>, 34 Yale L. & Pol\u2019y Rev. 155 (2016) (documenting the dominance of the East Coast on the Federal Reserve Board of Governors and American monetary policy).<\/p>\n [29]<\/a> Sutton, supra <\/em>note 6, at 129-30.<\/p>\n [30]<\/a> See, e.g.<\/em>, id. <\/em>at 133 (acknowledging that \u201cwe have converted the one constitution most difficult to amend (the US Constitution) and the judges most difficult to replace (federal judges) into the key change agents in our society\u201d).<\/p>\n [31]<\/a> Id. <\/em>at 138-40 (explaining the history of W. Tradition P\u2019ship v. Attorney General, 271 P.3d 1 (Mont. 2011), rev\u2019d sub nom. <\/em>Am. Tradition P\u2019ship v. Bullock, 567 U.S. 516 (2012)).<\/p>\n [32]<\/a> Id. <\/em>at 139.<\/p>\n [33]<\/a> Id. <\/em>at 139-40.<\/p>\n [34]<\/a> See <\/em>McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).<\/p>\n [35]<\/a> Cf. <\/em>Oklahoma v. Castro-Huerta, No. 21-429, 2022 WL 187939 (Jan. 21, 2022) (granting the petition for writ of certiorari on a related but more limited question).<\/p>\n [36]<\/a> Sutton, supra <\/em>note 6, at 5.<\/p>\n [37]<\/a> Id. <\/em>at 6.<\/p>\n [38]<\/a> Tiger Lily, LLC v. U.S. Dep\u2019t of Hous. & Urban Dev., 5 F.4th 666 (6th Cir. 2021).<\/p>\n [39]<\/a> Ala. Ass\u2019n of Realtors v. Dep\u2019t of Health & Human Servs., 141 S. Ct. 2320, 2320-21 (2021) (Kavanaugh, J., concurring).<\/p>\n [40]<\/a> Ala. Ass\u2019n of Realtors v. Dep\u2019t of Health & Human Servs., 141 S. Ct. 2485 (2021) (per curiam).<\/p>\n [41]<\/a> In re<\/em> MCP No. 165, 20 F.4th 264, 264, 285 (6th Cir. 2021) (Sutton, C.J., dissenting from denial of initial hearing en banc).\u00a0 The U.S. Supreme Court stayed that vaccination-or-testing mandate in an opinion that leaned upon Judge Sutton\u2019s writings.\u00a0 See <\/em>NFIB v. Dep\u2019t of Lab., 142 S. Ct. 661, 664-65 (2022) (per curiam) (quoting In re<\/em> MCP No. 165, 20 F.4th at 264, 272, 274 (Sutton, C.J., dissenting from denial of initial hearing en banc)); see also id. <\/em>at 667 (Gorsuch, J., concurring) (\u201cThe central question we face today is: Who decides?\u201d).<\/p>\n [42]<\/a> Sutton, supra <\/em>note 6, at 24.<\/p>\n [43]<\/a> See <\/em>S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (allowing the California governor to prohibit singing in churches while allowing singing in film studios).<\/p>\n [44]<\/a> See <\/em>Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634 (2019); Lee v. Weisman, 505 U.S. 577 (1992); Engel v. Vitale, 370 U.S. 421 (1962). \u00a0But see<\/em> Town of Greece v. Galloway, 572 U.S. 565 (2014).<\/p>\n [45]<\/a> Am. Legion v. Am. Humanist Ass\u2019n, 139 S. Ct. 2067 (2019).<\/p>\n [46]<\/a> McCreary Cnty. Ky. v. ACLU of Ky., 545 U.S. 844 (2005).<\/p>\n [47]<\/a> We encourage all to follow the U.S. Constitution.<\/p>\n