Lessons from California's Recent Experience With Its Non-unitary (divided) Executive: of Mayors, Governors, Controllers, and Attorneys General

• Jurisdiction: California,United States
• Publication year: 2009
• Citation: Vol. 59 No. 2

Lessons from California's Recent Experience with Its Non-Unitary (Divided) Executive: Of Mayors, Governors, Controllers, and Attorneys General

Vikram David Amar

LESSONS FROM CALIFORNIA'S RECENT EXPERIENCE WITH ITS NON-UNITARY (DIVIDED) EXECUTIVE: OF MAYORS, GOVERNORS, CONTROLLERS, AND ATTORNEYS GENERAL

Vikram David Amar^*

It is often said that one of the great advantages of a federalist system is that states can operate as laboratories of democracy, experimenting with common law and statutory frameworks in ways that provide useful policy information to other states as well as the federal government.¹ The utility of this framework is not limited to the common law or experiments by legislatures; it applies with equal, albeit underappreciated, force to matters of constitutional law.

Thus, in a symposium dedicated to examining the meaning and future of the federal "unitary executive," the experience of states—almost all of which reject a unitary executive model—warrants some inquiry. Recent episodes in the most populous state, California, involving struggles over two of the most prominent and consuming controversies of our day—recognition of gay marriage and how best to deal with unprecedented public budget shortfalls—serve as the focus of my Essay. These episodes highlight both the pitfalls and the possibilities of a divided (that is, plural) executive model.

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LESSON # 1: DISPERSAL OF CORE EXECUTIVE POWER CAN GENERATE DUBIOUS AND ULTIMATELY HARMFUL CLAIMS OF POWER BY EXECUTIVE OFFICIALS IN WAYS THAT INCREASE DISORDER AND CYNICISM DURING CRITICAL TIMES.

A. San Francisco Mayor Gavin Newsom and the Origins of California's Gay Marriage Saga

"California, like virtually every other state, employs a divided executive in that [the] State Constitution divides the executive powers of state government among several" actors, both horizontally at the state level and vertically within the geographical subdivisions that comprise the state.² The tensions and disputes created by this allocation of authority arise most frequently between various statewide constitutional officers, but the battles over gay marriage—one of the biggest storylines in the state and the nation over the last decade—demonstrate that the division of executive power between state officials on the one hand and regional or county officials on the other generates its own potential for mischief.

In the spring of 2004, in direct and overt defiance of state statutes limiting state-sanctioned marriage to heterosexual couples,³ Gavin Newsom, the mayor of San Francisco (both a county and a city) began directing the Clerk of San Francisco County to make whatever changes were necessary "in order to provide marriage licenses on a non-discriminatory basis, without regard to gender or sexual orientation."⁴ Newsom took this position based on his view that state and federal equal protection and due process principles required it.⁵ Under Newsom's direction, the county issued licenses to thousands of same-sex couples whose weddings were performed at city hall by county bureaucrats and elected officials.⁶

The issuance of these licenses quickly prompted a number of lawsuits brought by private groups seeking to enforce California state statutes forbidding same-sex marriage.⁷ California trial courts declined to grant the immediate injunctive relief sought by the private plaintiffs,⁸ largely on the

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ground that even if Mayor Newsom had been improperly violating state law, the plaintiffs would not suffer substantial "irreparable injury" because of it.⁹

A few days later, California Attorney General Bill Lockyer filed papers directly with the California Supreme Court, making three requests: (1) that the court issue an immediate cease-and-desist order directing the county clerk to stop issuing new licenses; (2) that the court declare the marriages that had already been performed invalid based on allegedly illegal actions of the mayor; and (3) that the court take up and resolve the question of whether, as advocates of same-sex marriage like Newsom had argued, California's constitution prohibits discrimination against same-sex couples in the context of marriage.¹⁰

Mayor Newsom's only imaginable defense for his actions was his stated belief that the state statutes violated the California and federal constitutions and that the oaths he swore when he took office permitted—perhaps even compelled—him to disregard such statutes that conflict with these higher laws.¹¹

One specific provision of the California constitution posed a problem for Mayor Newsom. Article III, Section 3.5 of the California constitution admonishes that an "administrative agency . . . has no power . . . [to] refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."¹²

Section 3.5 appears to have been added to the state constitution to provide an orderly judicial process to resolve questions about the constitutionality of state laws. It essentially directs state agency officials who believe a statute is unconstitutional to obey the statute until appellate courts have decided the constitutional question, rather than disregard the will of the legislature in the name of constitutional conscience.¹³

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Attorney General Lockyer relied heavily on Section 3.5 in his request for an immediate cease-and-desist order,¹⁴ and his argument seemed to have the force of the law behind it. Even if state statutes banning same-sex marriage did violate state due process or equal protection principles, Section 3.5 on its face appeared to preclude the mayor from disregarding these statutes in the absence of invalidation by a state appellate court.

Indeed, the only real question concerning the applicability of Section 3.5 in the minds of many observers was whether San Francisco is an "administrative agency" within the meaning of this section. The better view is that San Francisco is an "agency" for these purposes. It was, after all, the San Francisco county clerk who issued the licenses,¹⁵ and the state constitution elsewhere defines "counties" as "legal subdivisions of the state."¹⁶ A prominent treatise on the California constitution summarizes the prevailing view that counties "serve as regional agencies and instrumentalities of some state-level functions and are thus treated as legal and operational subdivisions of the state government itself."¹⁷

If one moves beyond the text of Section 3.5 to its evident purposes, the actions of San Francisco officials in the same-sex marriage context are hard to justify. The licenses each county grants are valid not just in that county, but rather throughout the state and perhaps in other states as well.¹⁸ Thus, the desire to avoid disorder and confusion that underpins Section 3.5 is implicated in a significant way by the issuance of marriage licenses.

This is not to say that Section 3.5's approach to the problem of what executive branch agencies should do when they think a statute is unconstitutional—namely, enforce the statute until an appellate court acts—is the only reasonable answer. To be sure, disagreements that arise within an executive branch as to whether an action is constitutional must be settled through some process. In the federal system, the President usually has the last word, and sometimes the President's word need not even agree with that of the courts. But all others within the Executive Branch must fall in line with the President—an agency head (despite his or her oath to uphold the Constitution)

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cannot contravene the President's position. For example, a regional EPA official or a regional federal prosecutor could not, relying on his oath, defy the President's directive to enforce a federal statute that the official believes is unconstitutional. Such localized authority would be intolerably chaotic and inefficient, with regional agency representatives frustrating the public's expectations by refusing to follow decrees from Washington.

If the federal system can opt in this way for a "unitary executive," states certainly can as well. One way of understanding Section 3.5 is that California has embraced at least some aspects of the federal model in this respect; the California constitution and cases recognize the Governor and attorney general as the state's chief law enforcement officers, and Section 3.5 does not allow lesser state agencies to diverge from the positions taken by these state executive leaders, at least until an appellate court has directed them to do so.

Thus, just as at the federal level regional representatives and agency heads must fall in line with the President, Section 3.5 suggests that at the state level mayors must fall in line with the Governor when it comes to law enforcement.¹⁹ Whether a Governor or an attorney general could have a decent claim to be free from the constraints of Section 3.5 because they are not "agencies" (just as the President might claim a right to disregard congressional enactments that he believes are unconstitutional regardless of what an appellate court has said),²⁰ a lower-level state executive official, like a mayor, simply cannot make such a claim.

Cities in California (and other states) do enjoy some state constitutional protection to decide for themselves certain local matters free from state control.²¹ But the California constitution understandably limits these local autonomy realms to "municipal affairs."²² "Municipal affairs" are understood to include things such as setting salaries for city employees, contracting for city construction projects, taxing local residents, and the like.²³ But because of the significant intra- and interstate implications of marriage, the issuance of marriage licenses does not fall within the "municipal affairs" category. Instead it is part of a uniform statewide administrative scheme.

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This becomes clear if we consider how the system would have...