Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage

In contrast to the U.S. Constitution with its unitary, Hamiltonian federal executive, state constitutions fragment executive authority, providing for the direct popular election of several state officials and establishing relatively independent local governments. The significance of this feature of state constitutional structure for executive review - the notion that executive officials, no less than judges, have the power to interpret and enforce constitutional commitments - has been unexplored by commentators but recently became the focus of national public attention. Specifically, the issue whether state executive officials may refuse to enforce laws that they believe to be unconstitutional was a central element of the controversy regarding the issuance of marriage licenses to same-sex couples in San Francisco, California and Multnomah County, Oregon. As the California and Oregon experiences demonstrated, state governors often lack any meaningful ability to control state or local executive officials' exercise of executive review authority because of state constitutional provisions fragmenting executive authority. As a result, intra-executive disputes often find their way into the courts. State courts, in turn, have reacted in different ways in response to these claims of executive interpretive authority. One model, which I label the judicial exclusivity model and which was embraced by the California Supreme Court, rules out executive review en toto on constitutional grounds because, according to this view, the task of enforcing the constitution is exclusively for the courts. Another model, which I call the legislative model and was endorsed by the Oregon Supreme Court, accepts in principle the constitutional propriety of executive review but cedes to the state legislature the power to determine which officials may consider constitutional claims in performing their statutory duties. Still a third model, pressed unsuccessfully by the county officials in San Francisco and Multnomah County, asserts that there is a constitutional right and corresponding obligation for all executive officials to interpret and enforce the constitution. As I show, the legislative model best accords with state constitutional text and structure. In so doing, I challenge the predominant, judicial exclusivity model, which, as I argue, rests upon an outdated and erroneous understanding of the respective roles of the three branches of government in interpreting and enforcing the constitution. At the same time, I also reject the diametrically opposite theory that all executive officials have a constitutional right to engage in executive review. While I acknowledge that constitutional officers, such as the governor, may engage in executive review as part of the discharge of their constitutionally assigned powers and duties, I endorse and defend the legislative model, which leaves it to the legislature to determine whether the myriad non-constitutional officers employed by state and local governments may engage in executive review and, if so, to what extent. I then apply the legislative model to the same-sex marriage controversy, concluding that the county officials in San Francisco and Oregon were not authorized by their respective legislatures to engage in executive review.