California's Budget Crisis and Its Prop 8 Litigation: What They Reveal About the State's Divided Executive
	By VIKRAM DAVID AMAR
	Monday, August 16, 2010

The two most prominent headline stories in California government over the past year have been the state budget crisis and the Proposition 8 litigation. Both of them reveal many interesting aspects of democracy in the Golden State. In this column, I explore what these episodes teach us about California's complicated "divided" executive branch.

Unlike the federal model -- in which the President is (more or less) the person in whom all executive power is ultimately vested (the so-called "unitary" executive) -- California's constitution divides executive power in ways that sometimes create major problems and also perhaps interesting possibilities.

The State Controller and the Budget Crisis: His Three Key Arguments

Consider first the massive, unprecedented state budget mess that began in the summer of 2008 and continues to this day. The causes of the current shortfall are contested and manifold, but the magnitude of the predicament has been undeniable. The state was, beginning two years ago, facing a yearly deficit on the order of $40 billion, a staggering amount of money for an entity that is not authorized to borrow for yearly operating costs.

In response to this crisis, Governor Arnold Schwarzenegger has at various times undertaken many emergency measures, including a plan to pay most state employees only the federally-required minimum wage until after a state budget had been passed, and also a plan to "furlough" hundreds of thousands of state workers for a few days a month to save the state a few billion dollars a year.

Managing a once-in-a-lifetime fiscal crisis is hard enough in the most functional of governments. But Republican Governor Schwarzenegger has been hindered in his efforts by many other state executive officials, most notably Democrat State Controller John Chiang. Ultimately, the Governor has had to sue the elected Controller repeatedly (and has had to defend in actions in which the Controller has joined union plaintiffs who are suing the Governor) in order to get Chiang to implement the directives that the Governor and his Department of Personnel Administration have issued regarding temporarily reduced pay.

The arguments that Controller Chiang has asserted for refusing to abide by the Governor's edicts fall into three big categories. The first involves contention that the Governor's fiscal plans have been unwise, unnecessary (given state cash-flow projections) and practically unfeasible. The second rests on the argument that the Governor's proposed course of action would violate federal employee-pay law and thus run afoul of the Supremacy Clause. And the third involves Chiang's belief that the Governor's orders to him trammel on his state- constitutional independence to administer the payment of state monies and to oversee his own constitutionally-independent office within the state's executive branch.

Why the Controller's Three Key Arguments Are Unpersuasive, and Should Lose

For the most part, each of these arguments has been rejected by the courts in thoughtful trial and appellate court opinions-- as most observers had expected -- but the litigations are still wending their way up the procedural ladder. All the while, the presence of these pending litigations is continuing to magnify the confusion and uncertainty of the budget "fixes" that are currently in place, and is shifting significant power, during the crisis, to the state judiciary. The state judiciary, in turn, might have felt (and may yet feel) especially emboldened to second-guess the Governor's plans because the challenges to those plans come not just from employee labor unions but also from statewide constitutional officeholders.

There are many reasons why Chiang's various gambits in court should lose. For starters, it is odd that the Controller could believe that he is legally authorized to take positions in court that are contrary to the Governor's. In a seminal ruling in 1981, the California Supreme Court held (in a case bearing then-Governor Jerry Brown's name) that even the Attorney General could not take a position adverse to the Governor in court because under the state constitution, the Governor retains the "Supreme Executive power" to determine the public interest and under state statutes, he is to "supervise the official conduct of all executive and ministerial officers."

While the Controller is often designated as the state's chief financial officer, and while he is assigned by the Constitution to sit on some meaningful Boards, California courts had already held that the office of the Controller is largely "ministerial," and consists largely of being the state's chief auditor and accountant, but not its fiscal steward. Given that even the Attorney General – who holds an office whose very job is litigation -- is not permitted to formally sue the Governor or take legal positions adverse to him, the assertion of the Controller that he is empowered to challenge in court and disregard the Governor's directives seem quite far-fetched.

It is true that some of the Controller's arguments (which he has asserted on behalf of himself and a variety of other independently elected statewide officers, such as the Treasurer and Lieutenant Governor) have been asserted ostensibly in order to protect the independence of the office of the Controller itself and the employees housed within it -- rather than simply based on this particular Controller's disagreements with the Governor about general policy. But even if the Controller might have standing to raise those arguments about the independence of his office -- in the way that the President sometimes declines to defend Congress' laws that infringe on the powers of the Executive Branch -- that rationale would not justify the bulk of the Controller's legal arguments, which have focused on his disagreement over the best way to solve the budget crisis (i.e., what's truly in the public interest for the state to do).

Related to -- and perhaps as important as -- this doctrinal critique of the Controller's claim to institutional independence is the political reality that, as compared to the Governor, the Controller hardly even counts as a prominent elected statewide official. Voter interest in the virtually unknown candidates for Controller is almost nil; the amount of money spent on the Controller race pales in comparison to the amount of money spent on the race for Governor; the fiscal and budget management policies of gubernatorial candidates are prominent during the election, whereas the Controller's platforms tend to be more technical; and citizen awareness of the identity of any elected statewide executive officeholders besides the Governor and the Attorney General seems exceedingly low.

While a substantial majority of people know who the Governor is, and over half the voters typically have an opinion on the Attorney General candidates in election polls, there is no other statewide official whose recognition generally exceeds 20%. And the Controller's office is so under-the-radar that it is not even included in the most prominent surveys of voter knowledge that have been conducted over the years.

In short, the idea that in a time of true fiscal calamity a clash of policy between a Governor and a Controller in California should warrant judicial resolution and should delay certainty about the course of fiscal action that will be pursued is laughable, and yet it is another symptom -- this time falling in the plural-executive category -- of the need for structural repair to California government.

In modern times, there seems to be very little justification for having a separately elected state Controller, let alone one who can even remotely plausibly assert the authority to challenge the Governor's sense of the fiscal public interest. I am not suggesting, of course, that the Governor should be treated as an emperor in times of financial emergency; he must obey existing laws, contracts and federal limitations. What I am saying, instead, is that those laws, contracts and federal limits can be enforced by courts in lawsuits brought by aggrieved employees and citizens; the office of the Controller need not confuse and complicate things more by asserting its own (often poorly reasoned) views in court.

And again, even though the Controller's legal assertions of independence and discretion have been unpersuasive, they have not been so weak as to prevent them from having interjected additional tension and unpredictability into an already-dysfunctional budget process

The State Attorney General and Gay Marriage

It is instructive to contrast the Governor/Controller conflict with the tension that sometimes exists between the Attorney General -- the state's chief legal officer -- and the Governor. In many states, there is a strong tradition of Attorney General independence. As noted above, in California, the state Supreme Court held in the Brown case that the Attorney General may not sue or "take a position adverse to" the Governor. Yet the California Supreme Court has also read state statutes broadly (perhaps overly so) to recognize a power on the part of the Attorney General to at least decline to assert a position that is desired by the Governor (or by other Executive Branch clients) and to bow out of the case entirely, leaving it to the Governor or other agency to assert their legal views themselves. Thus, it appears that while the Attorney General may not contradict the Governor, he is not required to be the Governor's mouthpiece if he feels constrained by his legal conscience and his desire to keep his legal hands clean when he disagrees with the Chief Executive.

In California, the unfolding gay-marriage episode has showcased this Attorney General autonomy. In the "same-sex marriage cases" in the California Supreme Court in 2008, Attorney General Jerry Brown (the same person who was Governor 30 years ago, and who is running for Governor again this year) filed briefs that were different from the Governor on the merits, asserting different, nuanced views of what state equal protection means. Technically, this independent view might have run afoul of the Brown case: The Attorney General's position was different from, and arguably adverse to, the Governor's stance. But there is room for argument regarding whether or not the stances were truly adverse.

Is State Attorney General Independence Desirable? California's Example

Is state Attorney General independence from Governors a good thing? Governors are not typically elected for their legal -- as opposed to policy, managerial or fiscal – prowess. Thus, recognizing latitude on the part of state Attorneys General, who are picked by an informed electorate for their legal experience, may make democratic sense. Certainly such a political/structural explanation seems to explain the instinct in California that the Attorney General's independence is more understandable than the Controller's, even though all three officers are elected.

Even if state Attorneys General do and should enjoy independence from their Governors, the recent California experience again counsels caution in some respects. As many readers may know, in the most recent phase of the California gay-marriage saga, after the voters of the state reinstated a ban on same-sex marriage, a federal lawsuit was filed last spring challenging the state ban on federal grounds. This federal lawsuit then led to a trial, after which federal district judge Vaughn Walker ruled, just last week, in favor of same-sex marriage proponents in a widely-publicized opinion.

The Attorney General has declined to defend the state law in the federal proceeding, and again has gone beyond a "clean hands" approach of abstaining, and instead has formally attacked the law (as he had done in the most recent state court battles). The Governor, who has made a number of separate filings, has declined to weigh in on the merits of the case, saying that he lacks a basis for responding to the plaintiff's legal arguments. While politically understandable, the Governor's position that he is not in a position to weigh in makes little legal sense. Does he agree with the Attorney General's refusal to defend state law? If so, why doesn't he make that clear? If not, what is his position? As district court judge Vaughn Walker observed, it is odd -- and frustrating -- that the Governor would not state his views on this most important of modern legal issues. Even if a divided executive accomplishes some laudable checks-and-balances goals, surely clarity about how divided the executive is -- and how much we can infer about the Governor's views from the papers that the Attorney General files -- would promote the undeniably important accountability that the unitary executive theory tries to vindicate.

Comparing Recent California Attorney General Practice to Federal Solicitor General Practice

Might the example that the California Attorney General has set recently in the gay-marriage context, concerning his failure to defend state law against a federal constitutional challenge, be something from which the federal model can learn? In the federal government, as a general matter, the United States Solicitor General has traditionally taken a view that s/he should be defending the constitutionality of federal enactments whenever "reasonable" -- that is, non-frivolous -- arguments can be invoked to defend such statutes.

Although there are exceptions to this rule (e.g., involving situations where a law allegedly impinges on the Executive Branch under principles of separation of powers), the federal tradition of defense is quite strong. Although he has not made clear his reasoning, California's Attorney General Brown apparently does not embrace this approach; clearly the ban on same-sex marriages can (like the federal Defense of Marriage Act (DOMA) that the Obama Administration is defending in court) be legally defended by non-frivolous arguments. Indeed, these arguments may very well be -- under current caselaw -- winners.

Some might urge Attorney General Brown to explain his disinclination to defend in the gay-marriage context more explicitly. Perhaps he should. But I would also urge the federal Department of Justice to explain more thoroughly its decision to defend in (virtually) all cases. What, exactly, makes separation-of-powers violations more important to safeguard against than, say, equality violations? And why is the President's stance so different in litigation than in legislation? After all, a President needn't give much interpretive deference to Congress when deciding whether to veto a law. Why should the Administration be more solicitous of Congress' handiwork in court? Indeed Presidents sometimes decline to enforce federal statutes, a position that would seem more extreme than a refusal to legally defend a statute. But is the DOJ necessarily more reluctant to refuse to enforce, than to refuse to defend? There doesn't seem to be clarity here.

There are a number of possible distinctions between Jerry Brown's decision to attack Proposition 8 and the Obama Administration's decision to defend DOMA. First, Proposition 8 is a voter initiative, not a statute. But since General Brown's objection to Proposition 8 is substantive, and does not relate to whether the Proposition went through the requisite procedural hoops to become a part of the State Constitution, that distinction may not hold up. Second, Jerry Brown is elected, and the federal Attorney General, Eric Holder, is not. But President Obama is, and he could instruct his Attorney General not to defend the DOMA if he chose. Third, state standing rules permit more parties and intervenors, such that a state Attorney General's attack or refusal to defend might not impair the ability of the court to hear the strongest defense of the law in state court as much as would be the case in federal courts, which are more stringent about standing and other justiciability doctrines. Perhaps, but these federal doctrines might not be as rigid as they sometimes appear, and Congress is able to assert its own defense of federal statutes if it chooses to do so.

At the end of the day, in the best spirit of federalism, perhaps both state and federal systems can learn something from each other in this arena.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.