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

Abstract

It is often said that one of the great advantages of a federalist system is that states can operate as laboratories of discovery, experimenting with common law and statutory frameworks in ways that provide useful policy information to other states as well as the federal government. 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 - the recognition of gay marriage and how best to deal with unprecedented public budget shortfalls - serve as a the focus of my Essay. These episodes highlight both the pitfalls and the possibilities of a divided (that is, plural) executive model.