Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards

Abstract

Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made.

This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from federal courts, state constitutionalism is challenged to produce its own account of its relevance in an era of federal programs. After surveying and critiquing the interpretative practices of state courts in dealing with these conflicting constitutional norms, the Article presents an institutional design account of state allocation of powers which might better explain why states routinely suspend constitutional restrictions on delegation in the context of state implementation of federally-inspired programs. The Article questions whether constitutional restrictions on legislative delegation have any normative basis in the context of state implementation of federally-inspired programs, but argues that it is important for state courts to answer this question as a matter of state constitutional interpretation - not by ceding turf to federal courts under the Supremacy Clause or other federally-imposed judicial interpretations.