Shane on Seifter on Gubernatorial Administration (AdLaw Bridge Series)

by Chris Walker — Saturday, Aug. 12, 2017@chris_j_walker

Last month over at Jotwell my colleague Peter Shane published a terrific review of one of my favorite new administrative law articles of the year: Miriam Seifter’s Gubernatorial Administration, which is forthcoming in the Harvard Law Review.

Miriam’s article is brilliant, and such an important contribution to the field and a call for more of us to turn our attention to state administrative law. Here’s a summary of the article from the SSRN abstract:

Scholarly preoccupation with presidential power has left another story of executive power largely untold: the rise of American governors. Once virtually powerless figureheads, governors have emerged today as the drivers of state government. On issues from the energy sector to election law, disaster relief to discrimination, governors regularly exercise their authority in ways that deeply affect millions of people within their home states. And governors’ reach extends beyond state borders. Governors leverage their control of state executive branches to shape national policy, mobilizing (or demobilizing) state agencies as a means of supporting or resisting federal actions on immigration, environmental law, healthcare, and more.

This Article identifies and evaluates the modern regime of gubernatorial administration. It uncovers how and why governors have gained authority, including powers that Presidents lack, and describes the limited checks on gubernatorial power from state-level institutions. It shows that centralized gubernatorial power not only has significant policy consequences, but also provides a new perspective on several contemporary debates — regarding executive power, federalism, and local government law. Gubernatorial administration emerges as a promising vehicle for efficacious governing and a new source of state resilience. But concentrated gubernatorial power also creates opportunities for executive overreach, at least in the absence of strong oversight by other institutions, such as state legislatures, courts, media outlets, or civil society — institutions that may currently lack the capacity or incentives to serve as an effective check.

Appendices available here: http://ssrn.com/abstract=2934671.

And here is a snippet from Peter’s review:

The idea that state constitutions might provide terrain for comparative analysis that could shed new and important light on the federal Constitution is hardly a new one. But for those of us preoccupied with the study of Article II presidential power, it is hard to imagine a much more powerful illustration of that lesson than Miriam Seifter’s fruitful and creative study of what she calls “the modern regime of gubernatorial administration.”

Seifter demonstrates that, state variations notwithstanding, contemporary governors frequently enjoy an array of tools to direct administrative governance that, in important respects, presidents would envy. These include reorganization authority, the power to privatize government functions, and greater authority to influence independent state agencies than the President would have over federal counterparts. Governors typically have a more firmly grounded directive power over the policy content of administrative decision making. Moreover, because of overlap in the domains of state and federal regulatory concern, these authorities effectively give governors power to significantly “resist or advance key federal government programs.” (P. 19.)

Governors also typically have far greater power than does the President to formally re-tailor the handiwork of the legislative branch. Forty-four states vest governors with line-item veto authority, five of them extending beyond appropriations bills to non-appropriations legislation and eighteen more allowing the veto within appropriations bills to include substantive provisions. Besides exploring these differences, other important parts of Seifter’s study explain the daunting complexities that surround the interpretation of separation of powers principles at the state level.

Definitely go give the review a read here, as well as check out the current draft of the article here.

 


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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