Taking Politics Seriously: A Theory of California's Separation of Powers

Abstract

The California Court of Appeal recently held that the structure of the California Coastal Commission - arguably the most powerful land use authority in the nation - violated the state Constitution's Separation of Powers Clause, casting doubt on the Commission's viability. Constitutional cases beg for judicial overwriting, but the court resisted the temptation: no references to Montesquieu, no overwrought warnings about the "perils to liberty," no attempts at Holmesian rhetoric. The Court's opinion was sober and workmanlike - judges carefully attempting to sort through doctrine and come to a reasoned result.

But if the court thought that it might avoid notice through muted prose, it missed the mark. The decision attracted nationwide attention, and then spawned a rare special session of the California Legislature. The Legislature duly enacted legislation attempting to fix the Commission's alleged structural infirmities. Nevertheless, in stepped the California Supreme Court, a body not known for taking aggressive positions. In granting review, the Court stated that it would scrutinize both the Commission's new enabling statute and also whether all of the Commission's actions since its inception in 1972 should be invalidated - an order so sweeping that it amazed even the property rights lawyers who brought the case. In so doing, the justices set the stage for the most important California separation of powers decision in at least six decades and potentially in the state's history.

This Article considers federal scholarship in the state context, but takes what might seem to be a somewhat radical position: generally speaking, California courts should stay out of legislative-executive disputes over the structuring of the executive branch unless specific constitutional provisions are violated or emergency situations arise.

Laws are the product of political compromise between Legislature and Governor: the California Constitution, far more than its federal counterpart, envisions a constant give-and-take between the political branches that judges would do well to stay out of, except in extreme circumstances. And because the California Constitution creates this particularly messy politics, the judiciary simply cannot neatly segment roles between "legislative" and "executive" functions because doing so would ignore the essence of the process. In short, judicial intervention in disputes over control of the administrative state undo carefully crafted political compromises and yield nothing in return except doctrinal chaos.

This Article lays the groundwork for establishing a general theory of state separation-of-powers law. The majority of state constitutions contain the most important factors implying strong judicial deference. In recent years, scholars have persuasively contended that state constitutional law should exist as a discipline in its own right: enough commonality exists between states that the field need not fragment itself into 50 pieces, but state government diverges sufficiently from the federal that it makes no sense to simply fold the study of state charters into traditional American constitutional law. This Article agrees; federal separation of powers law simply does not apply in the state context. State courts should look more carefully at their own constitutions to create a more realistic separation of powers jurisprudence than their federal counterparts. If "realistic" here means far less jurisprudence than before, then that merely reflects the doctrine's problematic underpinnings.

Keywords: California Coastal Commission, land use, California Supreme Court, separation of power, federal and state power

JEL Classification: K19