For some time now, I have been concerned about a threat to the separation of powers in state governments. A governor or other executive officer cannot, of course, repeal a statute. But executive officers can sometimes decline to appeal a court decision holding a statute unconstitutional, which in practice has the same effect. In that way, the executive branch could override the decision of the legislature or, in states with the initiative, the people themselves.
The U.S. Supreme Court made this subterfuge more difficult today in Cameron v. EMW Women’s Surgical Center, No. 20-601. The statute at issue relates to abortion, a matter that CJLF takes no position on. What is important for our work is that Supreme Court allowed the Attorney General of the state to intervene to defend a statute after the state department head—no doubt on orders from the Governor—declined to seek further review of a decision holding a statute unconstitutional.
The federal government has a “unitary” executive. The Constitution vests all executive authority in the President, and all other executive officers derive their authority from him. All officers with substantial policy-making authority are appointed by the President, and they can all be fired by him.
Not so with most (perhaps all) state governments. In most states, the Attorney General is independently elected statewide, and District Attorneys (or State’s Attorneys or Commonwealth’s Attorneys, etc.) are elected independently on a more local level, usually a county or a judicial district comprised of multiple counties.
The Cameron case has some procedural history quirks that are not pertinent to the larger point. The simplified version is this. As of June 2020, the Secretary of Health and Family Services was the only defendant in the case, and the Secretary and his predecessors had defended the constitutionality of the statute, represented by the Attorney General and his predecessor (now Governor), from the beginning of the suit through the decision by a three-judge panel of the Sixth Circuit. The panel held the statute unconstitutional. A week later, the Secretary announced he would not seek further review by the full Sixth Circuit or the Supreme Court. The Attorney General moved to withdraw as counsel for the Secretary and intervene as a party to seek that further review.
The Sixth Circuit denied intervention, and that holding was reversed today by the Supreme Court. While the holding is on intervention it necessarily implicates standing, which would have been the issue if the AG had been a party from the beginning. An intervenor seeking relief that the original party does not seek must have independent standing. See Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017).
The decision was 6-2-1, with Justice Alito writing the opinion of the Court. Particularly heartening in this case is that Justice Alito did not confine himself to the particulars of federal rules of procedure but also addressed the impact on the sovereignty of the states reserved to them in the Constitution. Here are some noteworthy nuggets:
In defending the Kentucky law, the attorney general asserts a substantial legal interest that sounds in deeper, constitutional considerations. (Slip op. at 7.)
Paramount among the States’ retained sovereign powers is the power to enact and enforce any laws that do not conflict with federal law. (Slip op. at 8.)
This means that a State’s opportunity to defend its laws in federal court should not be lightly cut off. (Slip op. at 8.)
Respect for state sovereignty must also take into account the authority of a State to structure its executive branch in a way that empowers multiple officials to defend its sovereign interests in federal court. (Slip op. at 8.)
The way in which Kentucky divides executive authority and the unusual course that this litigation took should not obscure the important constitutional consideration at stake. (Slip op. at 9.)
The Court also addresses the timeliness issue. Although the AG could have intervened earlier, there was no reason to do so until the Secretary stopped defending the law. That is the relevant event for timeliness. (See slip op. at 10-11.)
Justice Kagan, joined by Justice Breyer, concurred in the judgment but not the constitutional discussion.
Justice Sotomayor dissented, expressing concerns for finality that are noticeably absent from her opinions on habeas corpus and capital punishment:
I fear today’s decision will open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike.
I certainly hope so, and I don’t think the public will be too upset about it. The ability of the people to govern themselves through the democratic process will be diminished if an office holder can bind future holders of the same office through “litigation decisions.” It is textbook constitutional law that the legislature cannot, by statute, bind future legislatures. Should executive officers have greater authority to bind their successors? Not in my book.
We expect to be citing this decision often in cases regarding criminal justice. Stay tuned.
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