Introduction
Structural disputes are ubiquitous in constitutional law. Constitutions provide a blueprint for government—charting institutions, allocating authority, facilitating coordination, and engineering friction. And although the federal Constitution and all fifty state constitutions establish systems of divided power, they also envision interdependence between their governmental departments—like lawmaking through bicameralism and presentment—which invites both coordination and contestation.
It is therefore unremarkable for the United States Supreme Court to settle a dispute over the scope of executive power or the boundaries between presidential and congressional authority.
And it is likewise unremarkable for a state high court to resolve a disagreement between its legislature and governor.
That structural disputes typically play out within the jurisdiction in which they arise is for good reason: How a people structure their own government is one of their most intimate and foundational choices. Indeed, it is a widely accepted principle of American federalism—stated time and again
—that the states are free to structure their governments as they see fit, subject to several settled constitutional parameters.
For those reasons, the conventional wisdom goes, it would be unusual for a question about the internal structure of Colorado’s or Kansas’s or Oregon’s government to be adjudicated by a federal court, according to federal law, instead of by that state’s own court and guided by its own constitutional plan.
This Article shows, however, that in many different substantive areas, the Supreme Court has elaborated a body of federal constitutional rules that directly and indirectly govern state structure—a set of doctrinal rules more pervasive than previously understood. Indeed, state structural questions play a defining role in a striking range of Supreme Court cases.
To name just a few: Hollingsworth v. Perry
set up a ruling on the constitutionality of state laws prohibiting same-sex marriage. But the Court instead dismissed the case for lack of standing, reasoning that, as a matter of federal constitutional law, the state had not authorized initiative proponents to represent “the state” in federal court.
Just last term, by contrast, in Biden v. Nebraska,
the Court allowed a challenge to the President’s student loan discharge policy to proceed, concluding that the state of Missouri could claim fiscal injuries suffered by a quasi-public corporation as “the state’s”—notwithstanding the corporation’s own decision to remain out of the lawsuit.
Last term, too, the Court decided Moore v. Harper
by resolving a percolating ambiguity about how the federal Constitution understands the role of state “legislatures” in regulating elections.
But state structural questions also arise in unexpected places: Over the decades, the Court has shaped the course of Eighth Amendment jurisprudence on a matter as significant as the constitutionality of capital punishment. Eighth Amendment “cruel and unusual punishment” doctrine instructs courts to consider whether a punishment conflicts with “the evolving standards of decency that mark the progress of a maturing society.”
The Court has disproportionally relied on statutes enacted by state legislatures to give content to those evolving views, while dismissing or minimizing the relevance of views expressed through other state actors who—pursuant to state constitutional or statutory law—also express state policy on questions of punishment.
And the cases about state structure that this Article identifies reach broader still, to areas ranging from sovereign immunity, to constitutional amendments, to how the Court decides who speaks for the state on the shadow docket.
These cases do not merely nod to state structure on the way to reaching (or, in some cases, not reaching) questions of substantive constitutional law. They pronounce upon basic state structural questions that are ordinarily the province of state constitutional drafters.
These cases have not yet been drawn together or scrutinized as a common body of doctrine—a form of federal constitutional regulation of state structure. Once this body of federal doctrine of state structure is made visible, its substantive import is clear: How a government is structured and decisionmaking authority is diffused—in other words, institutional design—determines substantive law and substantive outcomes.
This Article uses the terms “regulate” and “rule” to capture the broad ways in which the Court has found the Constitution to speak to state structure. These rules of state structure include mandates (requiring state institutions to function in a federally preferred way), prohibitions (barring states from operating in a federally unpreferred way), taxes (raising the cost of state structural choices), and conditions (conditioning state participation in a federal activity on particular state structural choices).
The Supreme Court’s siloed and often sui generis treatment of these cases accounts in substantial measure for the lack of coherence to this body of law. Although these rules taken together make up a significant thread of federalism doctrine (and, in turn, shape the federalism dynamic between and among our governments), the Court has never treated them as such, generally omitting considered discussion (and sometimes omitting any discussion) of their federalism stakes.
This Article, then, tells both a story about the eclectic and unexpected ways that federal constitutional law regulates and speaks to state structural choices and a story about how, in diffuse and often siloed ways, that body of law came to be—how the Constitution creates openings, how the Supreme Court has seized upon them, and how it has embedded often consequential judgments about state structure in plain sight.
Part I shows that a wide range of constitutional provisions create openings—through spare mentions of “the states”; unelaborated invocations of state “legislatures,” “executives,” and “judges”; and provisions governing broad topics like Article III standing and cruel and unusual punishment that seem facially to have little or no connection to federalism or state structure—that the Court has seized to develop doctrine that directly and indirectly regulates state structure.
Part II considers the resulting doctrine together for the first time. It shows that because the constitutional spaces described in Part I do not articulate clear and affirmative constraints on state structure (indeed, many do not seem to speak to state structure at all), the rules the Court has elaborated instead regulate state structure more circuitously by adopting various (sometimes inconsistent) ways to understand the federal Constitution to define what “the state” is, how states must allocate and distribute power, and which institutions count as the state and for what purpose. To that end, the Court has set out constitutional conceptions of the state—and structural blueprints to which its institutions must conform for certain federal purposes—using several techniques.
It analogizes the states to generic republics (that is, to what a federal court believes a state should look like) and then taxes states that do not conform to that template. It requires states to embrace agency relation-ships common in private organizations even when a state constitution embraces a different representative framework. It conceptualizes states as federal adjuncts, detaching them from their state constitutional contexts when performing certain functions and rendering them arms of the federal system (or, in some cases, declining to do so). It attempts a kind of modified deference, mixing together respect for how states have structured their governments with coordinate rules that restrict state discretion. And, at times, it adopts a posture of nonintervention, refusing to take a position on intrastate structural disputes—like who can legally speak for the state—but, in so doing, shaping state structure nonetheless.
Considered together, these cases yield an untidy, inconsistent, and sometimes haphazard conception of “the state” and of the legal tenets that ground its structure. And because, as Part II further reveals, the Court frequently lacks a vocabulary for expounding the federalism stakes of this form of state structural regulation, these cases are peppered with undefended assumptions and unjustified references to federalism-orienting principles.
Part III places this body of rules in context and begins to frame its implications for federalism and for federal structural constitutional law. Federalism doctrine and scholarship tend to focus on three design features of our federalist system: its boundaries, its jurisdictional distributions, and (more recently) its “rules of engagement.”
The rules collected here relate to a different design choice: how to legally organize our system’s internal governments. Federalist regimes can, and do, organize their internal governments as administrative organs of the central government, as federal constitutional departments, through corporate charters, or—as in our system—through separate, self-determined constitutions. This Part argues that the choice to structure our constitutional system in the latter manner—to establish what we call a system of layered constitutionalism—deserves more attention.
The implications of that choice for individual rights have been amply plumbed.
But constitutions do not just grant rights; they also chart structures. And the structural implications of America’s layered constitutionalism—which the doctrinal rules this paper implicate—have received far less attention. Most importantly, in our system of layered constitutionalism, those layers are not crisply separated; instead, the rules collected here form what we call structural interdependencies. State institutions are shaped not just by their own constitutions but by the terms and doctrines of the federal Constitution. The question that Part III begins to explore is how deeply these structural interdependencies should run and whether federal courts are suited to the task of making those determinations. It argues that across diverse values that inform the design of a federalist system, state constitutional autonomy serves important functions.
If one subscribes (as the Supreme Court has) to traditional federalism values—such as dual sovereignty—then the value of outwardly reasoning and considering state structural autonomy is self-evident.
But for contemporary federalism scholarship, the argument is perhaps surprising. Contemporary federalism, in a wide range of other areas—from politics, to joint programs, to cross-governmental acts of lawmaking and rulemaking—celebrates the porousness and intermeshing of federal and state governments.
This Article argues that even for those scholars (one of us among them) who would “shear[] [federalism] of sovereignty”
—and allow the states and federal government to energet-ically negotiate and renegotiate their policy jurisdiction—constitutional autonomy is the formalist independence that these many forms of functional interdependence need to flourish.
This body of constitutional law also has implications for questions about federal structural constitutional law, namely in conversations about the Court’s institutional role in designing a body of intersystemic constitutional law through a system of dispute resolution. In forging federal constitutional rules of state structure, the Supreme Court operates at the intersection of two institutionally sensitive areas: federalism and the separation of powers. Through its involvement in what are often heated state political matters—contests between governors and legislatures, state high courts and state agencies—the Court assumes a role of umpire-from-without, blurring the lines between the federal and state systems of government and issuing judgments that choose political winners and losers, not just in the state before the Court but also potentially many others.
The Court’s failure to produce a consistent and reasoned body of law in this complex structural terrain suggests that it has yet to develop the tools necessary to manage the sensitivities of this distinctive intersystemic structural intersection.