UNDERSTANDING STATE AGENCY INDEPENDENCE.

Author:Seifter, Miriam
 
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Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation; and legislatures seek to alter governors' influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence--a dialogue that has deepened under the Trump Administration. In contrast, there is virtually no systematic scholarly attention to the theory or practice of agency independence in the states.

This Article begins that study. Surveying historical developments, judicial decisions, and legislative enactments across the country, it shows that state agency independence is an inexact, unstable, and variegated concept. Whereas federal courts treat independent agencies as a distinct legal category, state courts tend to eschew categorization in favor of contextual holdings. Moreover, despite the common notion that states' plural-executive structure cements independence, these rulings just as frequently undermine it. State legislatures, for their part, revisit independence frequently, often in the wake of partisan realignments. And their creations are diverse, combining a range of vectors of insulation in different arrangements. The result is that there is no single meaning of state agency independence even within a state, and rarely a strong norm surrounding it.

States' legislatively driven, bespoke approach to independence offers insights for scholars of both state and federal institutional design. The state approach may yield better-tailored and more democratic arrangements. But it also displays raw partisanship, and the combination of weak norms with strong governors may stack the deck against independence. The state approach also raises deeper questions for public law: What are the costs and benefits of allowing the rules of the game to be consistently up for grabs? There is no formula for weighing these considerations beyond the context of any individual dispute, but this Article provides a launching pad for their sustained exploration.

Table of Contents Introduction I. Federal Agency Independence: A Review II. The Constitutional Origins of State agency Independence A. Signs of Independence: The Plural Executive 1. Elected Executive Officials 2. Constitutional Agencies 3. Multimember Boards and Commissions B. The Modern Move to Centralization III. Stage Agency Independence in the Courts A. Agency Independence as Neither a Binary nor a Category B. Independence-Affecting Rulings 1. SelectionPower 2. Removal 3. Governors' Supervisory Powers IV. State Agency Independence Outside the Courts A. Instability B. Legislative Creativity C. Weak Norms V. The Promises and Pitfalls of State Agency Independence A. Tailoring: Accuracy and Uncertainty B. Cooperation or Conflict? C. Democratic Values D. Independence Conclusion INTRODUCTION

Some of the most important decisions of law and policy, now and in the coming years, will rest with state-level administrative agencies that have some claim to independence from governors or other partisan leaders. State public utilities commissions will substantially shape our energy future. State boards of regents and education set the course of public education. State attorneys general, as heads of state departments of justice, play an increasing role in challenging and influencing national policies. Other elected state officials govern topics from insurance to state finances. The legal status of these potentially independent state entities is poorly understood but increasingly consequential. Governors clash with separately elected members of the executive branch, (1) and attorneys general, rising in prominence, (2) spar with governors and agencies over who speaks for the state in litigation. (3) In some states, legislatures or governors work to subject allegedly wayward independent state commissions to greater political control. (4) In others, stories of government corruption are spurring calls to add or empower independent watchdog agencies. (5)

At the federal level, scholars have carefully analyzed the meaning and implications of agency independence--a dialogue that has only deepened under the Trump Administration. (6) The topic has especial resonance in the current political climate: the President has strained or violated norms surrounding independence; (7) the independence of special counsel Robert Mueller is of great public intrigue; (8) and the changing composition of the Supreme Court portends changes in the law of independence. (9) But even in a period of possible flux, the conceptual terrain of agency independence is well trodden. We teach as black-letter doctrine (10) that federal independent agencies are those with tenure-protected leaders; (11) that such protection implies some degree of insulation from substantive interference by the president; (12) and that such insulation has a constitutional limit. (13) To be sure, serious disagreements persist, including about whether the existing doctrines are the best interpretation of the Constitution. But these debates only deepen a rich awareness of the topic and its basic parameters.

One reason agency independence has received such sustained attention is that it implicates fundamental public law questions. Agency independence is a separation of powers issue, because it allows Congress, controversially, to limit presidential power. (14) Agency independence is also at the heart of concerns that some policy decisions must be insulated from politics (15)--and, conversely, that insulating decisions too much creates accountability problems. (16) Because agency independence cuts to the heart of American law and politics, it is no wonder that federal public law scholars have spent so many decades studying it.

In contrast, there is virtually no systematic attention to the concept, theory, or practice of agency independence in the states. (17) Moreover, some important work specifically on separately elected executive officials in the states, like state attorneys general, (18) seems to feed an assumption that states are home to particularly robust independence. (19) In reality, states' plural executive structure raises, rather than answers, the question of legal and operational independence. We have not yet probed whether and how elected state executives--and many nonelected state agencies and officers with apparent markers of insulation--possess independence from political leaders.

This untapped inquiry has important implications. Most concretely, understanding state agency independence can shed light on pending cases at the state and federal levels, where confusion about the respective roles of state executive officials has vexed state and federal courts and led to denials of certiorari. (20) Federal statutory programs, too, sometimes require a state agency to be "independent," without defining what that means. (21) More broadly, studying independence in the states provides a clearer sense of how states conceive of and operationalize their constitutional separation of powers. Zooming out further still, studying how states structure independence can provide a new comparative window into federal independence and can unearth deeper differences in state and federal institutional design.

With those aims in mind, this Article provides the first full treatment of state agency independence. It explores the origins of independent state agencies and officials and surveys their modern forms. The Article then uncovers the legal realm of state agency independence--one that differs markedly from the federal model. Unlike federal courts, state courts tend not to treat independence as a distinct legal category, and their narrow, ad hoc decisions that touch on independence neither follow nor seem to create a strong norm. Rather, state jurisprudence largely leaves questions of independence to the legislative and political domains. State legislatures, for their part, revisit independence much more often than Congress does, and they do so in innovative ways that depart from the familiar federal design. I argue that this distinctive state approach to independence--variegated, shifting, and often politically charged--yields de facto, if not de jure, limits on agency independence: How independent can an official be if her independence itself is consistently up for grabs? In turn, the state landscape of independence has theoretical and normative implications, which the Article examines.

In pursuing all of these questions, this Article focuses primarily on the independence of state agencies and officials from the governors of their state. That is not the only possible form of independence, of course. We might also profitably assess an agency's independence from the state legislature or from outside interest groups, (22) and this Article does provide some views on the former. (23) Yet an agency's independence from the governor has particular importance for both law and theory. In an era of rising gubernatorial power, governors frequently claim authority over agencies or officials with markers of independence. (24) We need better legal resources to understand (if not easily resolve) these disputes. Moreover, at the level of theory, administrative and constitutional law scholars have traditionally focused on agency independence from the president. Focusing on the parallel question of independence from the governor offers a valuable comparative window and indicates that the federal approach to independence is not inevitable.

Consider first lessons from state court decisions on agency independence...

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