Understanding State Agency Independence
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.
*Assistant Professor of Law, University of Wisconsin Law School. For helpful comments at various stages of this project, I thank Aditya Bamzai, Kent Barnett, Nestor Davidson, Dan Ernst, Brian Feinstein, David Fontana, Daniel Hemel, Daryl Levinson, Gillian Metzger, Jennifer Nou, Anne Joseph O’Connell, David Schwartz, Brad Snyder, Justin Weinstein-Tull, Rob Yablon, Adam Zimmerman, and workshop participants at the University of Florida, the College of the Holy Cross, the University of Wisconsin, the Administrative Law New Scholarship Roundtable at the University of Michigan Law School, and the State and Local Government Works-in-Progress Conference at Fordham Law School. Thanks to Aaron Bibb, Tomás Clasen, Andrew Gresik, Elizabeth Parisi, Sydney Vanberg, Lauren Weber, and Charis Zimmick for excellent research contributions; to Betsy Stone for excellent research assistance through- out; and to the editors of the Michigan Law Review for invaluable editorial work. Support for this research was provided by the University of Wisconsin–Madison Office of the Vice Chancellor for Research and Graduate Education with funding from the Wisconsin Alumni Research Foundation.