Search for Separation of Powers

Modulei 10: State Government module 10 banner Module Objectives Upon completion of this module, the learner will be able to: Explain how the balance of power between national and state governments shifted with the drafting and ratification of the Constitution. Identify the formal powers and responsibilities of modern-day governors. List the basic functions performed by state legislatures. Describe how state legislatures vary in size, diversity, party composition, and professionalism. State Power & Delegation When the framers met at the Constitutional Convention in 1787, they had many competing tensions to resolve. For instance, they had to consider how citizens would be represented in the national government, given population differences between the states. In addition, they had to iron out differences of opinion about where to concentrate political power. Would the legislative branch have more authority than the executive branch, and would state governments retain as many rights as they had enjoyed under the Articles of Confederation? Here we look at the manner in which power was divided between the national and state governments, first under the Articles of Confederation and then under the U.S. Constitution. As you read, observe the shifting power dynamic between the national government and subnational governments at the state and local level. State Power at the Founding Before the ratification of the Constitution, the state governments’ power far exceeded that held by the national government. This distribution of authority was the result of a conscious decision and was reflected in the structure and framework of the Articles of Confederation. The national government was limited, lacking both a president to oversee domestic and foreign policy and a system of federal courts to settle disputes between the states. Restricting power at the national level gave the states a great deal of authority over and independence from the federal government. Each state legislature appointed its own Congressional representatives, subject to recall by the states, and each state was given the authority to collect taxes from its citizens. But limiting national government power was not the delegates’ only priority. They also wanted to prevent any given state from exceeding the authority and independence of the others. The delegates ultimately worked to create a level playing field between the individual states that formed the confederation. For instance, the Articles of Confederation could not be amended without the approval of each state, and each state received one vote in Congress, regardless of population. It wasn’t long after the Articles of Confederation were established that cracks began to appear in their foundation. Congress struggled to conduct business and to ensure the financial credibility of the new country’s government. One difficulty was its inability to compel the individual states to cover their portion of Revolutionary War debt. Attempts to recoup these funds through the imposition of tariffs were vetoed by states with a vested financial interest in their failure. Given the inherent weaknesses in the system set up by the Articles, in 1787 the delegates came together once again to consider amendments to the Articles, but they ended up instead considering a new design for the government. To produce more long-term stability, they needed to establish a more effective division of power between the federal and state governments. Ultimately, the framers settled on a system in which power would be shared: The national government had its core duties, the state governments had their duties, and other duties were shared equally between them. Today this structure of power sharing is referred to as federalism. An image of an original handwritten version of the Articles of Confederation. Picture 10.1. The Articles of Confederation, written in 1777 and adopted in 1781, established the first government of the United States. The Articles were replaced by the Constitution in 1787. The Constitution allocated more power to the federal government by effectively adding two new branches: a president to head the executive branch and the Supreme Court to head the judicial branch. The specific delegated or expressed powers granted to Congress and to the president were clearly spelled out in the body of the Constitution under Article I, Section 8, and Article II, Sections 2 and 3. In addition to these expressed powers, the national government was given implied powers that, while not clearly stated, are inferred. These powers stem from the elastic clause in Article I, Section 8, of the Constitution, which provides Congress the authority “to make all Laws which shall be necessary and proper for carrying into Execution the Foregoing powers.” This statement has been used to support the federal government’s playing a role in controversial policy matters, such as the provision of healthcare, the expansion of power to levy and collect taxes, and regulation of interstate commerce. Finally, Article VI declared that the U.S. Constitution and any laws or treaties made in connection with that document were to supersede constitutions and laws made at the state level. This clause, better known as the supremacy clause, makes clear that any conflict in law between the central (or federal) government and the regional (or state) governments is typically resolved in favor of the central government. Although the U.S. Constitution clearly allocated more power to the federal government than had been the case under the Articles of Confederation, the framers still respected the important role of the states in the new government. The states were given a host of powers independent of those enjoyed by the national government. As one example, they now had the power to establish local governments and to account for the structure, function, and responsibilities of these governments within their state constitutions. This gave states sovereignty, or supreme and independent authority, over county, municipal, school and other special districts. States were also given the power to ratify amendments to the U.S. Constitution. Throughout U.S. history, all amendments to the Constitution except one have been proposed by Congress and then ratified by either three-fourths of the state legislatures or three-fourths of the state conventions called for ratification purposes. This process ensures that the states have a voice in any changes to the Constitution. The Twenty-First Amendment (repealing the Eighteenth Amendment’s prohibition on alcohol) was the only amendment ratified using the state ratifying convention method. Although this path has never been taken, the U.S. Constitution even allows for state legislatures to take a direct and very active role in the amendment proposal process. If at least two-thirds of the state legislatures apply for a national convention, constitutional amendments can be proposed at the convention. Despite the Constitution’s broad grants of state authority, one of the central goals of the Anti-Federalists, a group opposed to several components of the Constitution, was to preserve state government authority, protect the small states, and keep government power concentrated in the hands of the people. For this reason, the Tenth Amendment was included in the Bill of Rights to create a class of powers, known as reserved powers, exclusive to state governments. The amendment specifically reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In essence, if the Constitution does not decree that an activity should be performed by the national government and does not restrict the state government from engaging in it, then the state is seen as having the power to perform the function. In other words, the power is reserved to the states. Besides reserved powers, the states also retained concurrent powers, or responsibilities shared with the national government. As part of this package of powers, the state and federal governments each have the right to collect income tax from their citizens and corporate tax from businesses. They also share responsibility for building and maintaining the network of interstates and highways and for making and enforcing laws. For instance, many state governments have laws regulating motorcycle and bicycle helmet use, banning texting and driving, and prohibiting driving under the influence of drugs or alcohol. table showing federal powers, concurrent powers, and state powers Figure 10.1. Examples of federal, concurrent, and state powers. On the left is an image of a sign that reads “No texting while driving”. On the right is an image of a person in the driver’s seat of a vehicle. The person is holding a phone in their hand and looking at it. Picture 10.2. State (and sometimes local) governments regulate items having to do with highway safety, such as laws against cellphone use while driving. (credit right: modification of work by “Lord Jim”/Flickr) The Evolution of State Power Throughout U.S. history, the national and state governments have battled for dominance over the implementation of public policy and the funding of important political programs. Upon taking office in 1933 during the Great Depression (1929–1939), President Franklin D. Roosevelt initiated a series of legislative proposals to boost the economy and put people back to work. The enacted programs allowed the federal government to play a broader role in revitalizing the economy while greatly expanding its power. However, this result was not without its critics. Initially, the Supreme Court overturned several key legislative proposals passed under Roosevelt, reasoning that they represented an overreach of presidential authority and were unconstitutional, such as Schechter Poultry Corp. v. United States. Eventually, however, the Supreme Court shifted direction to reflect public opinion, which was decisively behind the president and the need for government intervention in a time of economic turmoil. Just three decades later, during the 1964 presidential election campaign, incumbent President Lyndon B. Johnson declared a “War on Poverty,” instituting a package of Great Society programs designed to improve circumstances for lower-income Americans across the nation. The new programs included Medicare and Medicaid, which are health insurance programs for seniors and low-income citizens respectively, and the food stamp program, which provides food assistance to low-income families. These initiatives greatly expanded the role of the federal government in providing a social safety net. State and local governments became partners in their implementation and also came to rely on the financial support they received from the federal government in the form of program grants. As the federal government’s role in policy creation expanded, so did its level of spending. Spending by the federal government began to surpass that of state and local governments shortly after 1940. It spiked temporarily during the Great Depression and again during World War II, resuming a slow climb with the implementation of Johnson’s Great Society programs noted above. A graph titled “Federal Spending vs. State and Local Spending”. The x-axis of the graph is labeled “Year” and reads from left to right “1930”, “1940”, “1950”, “1960”, “1970”, “1980”, “1990”, “2000”, “2010”, and “2020”. The y-axis is labeled “Expenditure as percent of GDP” and reads from bottom to top “5%”, “10%”, “15%”, “20%”, “25%”, “30%”, “35%”, “40%”, and “45%”. A line labeled “Federal” starts around 4% in 1930, rises to around 10% in 1940, rises sharply to around 40% around 1945, drops sharply to around 15% in 1960, increases to around 20% in 1970, increases to around 23% in 1980, decreases to around 19% in 200, increases to around 25% in 2010, and ends at 32.5% in 2020. A line labeled “State” starts around 10% in 1930, rises to around 11% then drops back to around 10% in 1940, drops to around 5% then rises to around 8% in 1950, rises to around 10% in 1960, rises to around 13% in 1970, rises to around 14% then drops back around 13% in 1980, maintains around 13% in 1990, rises to around 14% in 2000, rises to around 16% in 2010, and ends at 14.3% in 2020. At the bottom of the graph a source is cited: “U.S. Bureau of Economic Analysis. NIPA table 1.1.5: “Gross Domestic Product.” April 29, 2021. NIPA Table 3.2: “Federal Government Current Receipts and Expenditures.” April 29, 2021. NIPA Table 3.3: “State and Local Government Current Receipts and Expenditures.” April 29, 2021. Figure 10.2. After spiking during World War II, spending by the federal government has consistently exceeded that of state and local governments. Since 2000, the gap between federal and state spending has widened considerably. An upswing is evident with the Great Recession (2008–10) and federal spending escalated as COVID-19 became the dominant policy issue in 2020. Growing financial resources gave the federal government increased power over subnational governments. This increased power was because it could use categorical grants to dictate the terms and conditions state governments had to meet to qualify for financial assistance in a specific policy area. Over time, the federal government even began to require state and local governments to comply with legislative and executive authorizations when funding was not attached. These requests from the federal government are referred to as unfunded mandates and are a source of dissatisfaction to political actors at the state and local level. To provide more transparency to state and local governments and reduce the federal government’s use of mandates, the Unfunded Mandates Reform Act was passed in 1995. This act requires the Congressional Budget Office to provide information about the cost of any proposed government mandate that exceeds a specified threshold before the bill can be considered in Congress. Despite the national government’s power to pass and fund policy that affects lower-level governments, states still have gained considerable headway since the late twentieth century. For instance, with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act in 1996, known as the welfare reform bill, states were given great discretion over the provision of welfare. The federal government reduced its level of monetary support for the program and, in exchange, the states gained more authority over its implementation. States were able to set more restrictive work requirements, to place caps on the number of family members who could receive aid, and to limit the length of time someone could qualify for government assistance. Since then, states have been granted the flexibility to set policy across a number of controversial policy areas. For instance, a wide array of states require parental consent for abortions performed on minors, set waiting periods before an abortion can be performed, or require patients to undergo an ultrasound before the procedure. As another example, currently, almost half the states allow for the use of medical marijuana and sixteen more states have fully legalized it, despite the fact that this practice stands in contradiction to federal law that prohibits the use and distribution of marijuana. Today, it is not uncommon to see a patchwork of legal decisions granting states more discretion in some policy areas, such as marijuana use, while providing the federal government more authority in others, such as same-sex marriage. Decisions about which level controls policy can reflect the attitudes of government officials and the public, political ideology and the strategic advantage of setting policy on a state-by-state basis, and the necessity of setting uniform policy in the face of an economic downturn or unanticipated national security threat. What has not changed over time is the central role of the U.S. Supreme Court’s views in determining how power should be distributed in a federalist system. Governors & State Legislatures Public opinion regarding Congress has reached a dismal low, with more than 80 percent of those surveyed in 2014 saying they do not feel most members of Congress deserve to be reelected. This attitude stems from partisan rivalry, media coverage that has capitalized on the conflict, fiscal shutdowns, and the general perception that Congress is no longer engaged in lawmaking. The picture looks quite different at the subnational level, at least where lawmaking is concerned. State representatives and senators have been actively engaged in the lawmaking function, grabbing national attention at times for their controversial and highly partisan policies. Governors have been active in promoting their own policy agendas, either in cooperation with the state legislature or in opposition to it. Among the early 2016 Republican presidential contenders, nine were current or former state governors. In the Democratic field in 2020, four current or former state governors pursued the nomination.30 Increasingly, governors are using their office and the policies they have signed into law as a platform to gain national attention and to give voters a sense of their priorities should they ascend to the highest office in the country, the presidency. Governors in Charge Anyone elected to the office of governor assumes tremendous responsibility overnight. He or she becomes the spokesperson for the entire state and their political party, accepts blame or praise for handling decision-making in times of crisis, oversees the implementation of public policy, and helps shepherd legislation through the lawmaking process. These tasks require a great deal of skill and demand that governors exhibit different strengths and personality traits. Governors must learn to work well with other lawmakers, bureaucrats, cabinet officials, and with the citizens who elected them to office in the first place. The ongoing water crisis in Flint, Michigan, provides a good case in point. The COVID-19 pandemic put every governor in the hot seat as they considered decisions on masks, social distancing, and how to allocate federal funds. A photo shows Gretchen Whitmer standing outside of an urban building being briefed by a person in military uniform. Two other people in military uniforms and a plainclothed person are at the briefing. Picture 10.3. Michigan governor Gretchen Whitmer is briefed by the military on the potential to convert the TCF Center, a convention venue in downtown Detroit, into a medical site to care for persons with COVID-19. Governors have tremendous power over the legislative branch because they serve year-round and hold office alone. They also command wide press coverage by virtue of being the leading elected official in their state. Finally, while there are variations in degree across the states, most governors have more power relative to their state legislatures than does the U.S. president relative to the U.S. Congress. State executive power flows from factors such as the propensity of state legislatures to meet for only part of the year and their resulting reliance for information on the governor and his/her administration, stronger formal tools (e.g., line-item vetoes), budget-cutting discretion, and the fact that state legislators typically hold down another job besides that of legislator. Three of the governor’s chief functions are to influence the legislative process through an executive budget proposal, a policy agenda, and vetoes. Just as the president gives a State of the Union address once a year, so too do governors give an annual State of the State address before the state legislature. In this speech, they discuss economic and political achievements, cite data that supports their accomplishments, and overview the major items on their legislative agenda. This speech signals to members of the state legislature what priorities are high on the governor’s list. Those who share the governor’s party affiliation will work with the governor to see these goals achieved. Given that governors need the cooperation of state legislators to get their bills introduced and steered through the lawmaking process, they make developing good relationships with lawmakers a priority. This can entail helping lawmakers address the concerns of their constituents, inviting legislators to social events and meals, and scheduling weekly meetings with legislative leaders and committee chairs to discuss policy. An image of Nikki Haley standing behind a podium. Picture 10.4. Then-governor Nikki Haley delivers her 2015 State of the State address from the State House in Columbia, South Carolina, on January 21, 2015. In addition to providing a basic list of policy priorities, governors also initiate a budget proposal in most states. Here they indicate funding priorities and spell out the amounts that will be appropriated to various state agencies under their discretion. When the economy is strong, governors may find themselves in the enviable position of having a surplus of tax revenue. That allows them some flexibility to decide whether they want to reduce taxes, direct funds toward a new initiative or program, allocate more funds to current programs, restore funds that were cut during times of fiscal distress, or save surplus revenue in a rainy-day account. Moreover, when cuts must be made, especially when the legislature is not in session, it is typically the governor or their finance director who makes the call on what gets cut. Having introduced their priorities, the governor will work on the sidelines to steer favored bills through the legislative process. This may entail holding meetings with committee chairs or other influential lawmakers concerning their legislative priorities, working with the media to try to get favorable coverage of legislative priorities, targeting advocacy organizations to maintain pressure on resistant lawmakers, or testifying in legislative hearings about the possible impacts of the legislation. Once legislation has made its way through the lawmaking process, it comes to the governor’s desk for signature. If a governor signs the bill, it becomes law, and if the governor does not like the terms of the legislation they can veto, or reject, the entire bill. The bill can then become law only if a supermajority of legislators overrides the veto by voting in favor of the bill. Since it is difficult for two-thirds or more of state legislators to come together to override a veto (it requires many members of the governor’s own party to vote against the governor), the simple act of threatening to veto can be enough to get legislators to make concessions to the governor before the governor will pass the legislation. The ability to veto legislation is just one of the formal powers governors have at their disposal. Formal powers are powers the governor may exercise that are specifically outlined in state constitutions or state law. Unlike U.S. presidents, many governors also have additional veto powers at their disposal, which enhances their ability to check the actions of the legislative branch. For instance, most states provide governors the power of the line-item veto. The line-item veto gives governors the ability to strike out a line or individual portions of a bill while letting the remainder pass into law. In addition, approximately 30 percent of governors have the power of an amendatory veto, which allows them to send a bill back to the legislature and request a specific amendment to it. Finally, a small number of governors, including the governor of Texas, also have the power of a reduction veto, which allows them to reduce the budget proposed in a piece of legislation. Besides the formal power to prepare the budget and veto legislation, legislators also have the power to call special sessions of the legislature for a wide array of reasons. For instance, sessions may be called to address budgetary issues during an economic downturn, to put together a redistricting plan, or to focus intensively on a particular issue the governor wants rectified immediately. In some states, only the governor has the power to call a special session, while in other states this power is shared between the legislative and the executive branches. Although governors have a great deal of power in the legislative arena, this is not their only area of influence. First, as leaders in their political party, governors often work to raise money for other political figures who are up for reelection. A governor who has high public approval ratings may also make campaign appearances on behalf of candidates in tough reelection fights across the state. Governors can draw in supporters, contributions, and media attention that can be beneficial to other political aspirants, and the party will expect them to do their part to ensure the greatest possible number of victories for their candidates. Second, as the spokesperson for their state, governors make every effort to sell the state’s virtues and unique characteristics, whether to the media, to other citizens across the United States, to potential business owners, or to legislative leaders in Washington, DC. Governors want to project a positive image of their state that will encourage tourism, relocation, and economic investment within its boundaries. Collectively, governors make a mark through the National Governors Association, which is a powerful lobbying force in the nation’s capital. For example, Texas governor Greg Abbott made headlines in 2015 for writing to the CEO of General Electric (GE), urging the company to relocate its corporate headquarters from Connecticut, which had just raised its corporate tax rate, to Texas. As his state’s spokesperson, Abbott promoted Texas’s friendly corporate tax structure and investment in transportation and education funding in hopes of enticing GE to relocate there and bring economic opportunities with it. The company has since decided to relocate to Boston, after receiving incentives, worth up to $145 million, from Massachusetts officials. Another example involved Texas governor Rick Perry touring California in 2014 in order to bring prospective businesses from the Golden State to Texas. In what was arguably the biggest round of lobbying by state and local governments toward a big business, Amazon recently conducted a search for a second corporate headquarters. After months of consideration, hundreds of op-eds extolling the virtues of locating in particular communities, Amazon picked two sites—Arlington, Virginia and Long Island City, New York—where it plans to spend over $2 billion at each site. In March 2015, the governor of Virginia, Terry McAuliffe, and the mayor of Chicago, Rahm Emanuel, both sent letters to corporate heads in Indiana after controversy erupted around the passage of that state’s Religious Freedom Restoration Act. This bill is designed to restrict government intrusion into people’s religious beliefs unless there is a compelling state interest. It also provides individuals and businesses with the ability to sue if they feel their religious rights have been violated. However, opponents feared the law would be used as a means to discriminate against members of the LGBTQ community, based on business owners’ religious objections to providing services for same-sex couples. In the media firestorm that followed the Indiana law’s passage, several prominent companies announced they would consider taking their business elsewhere or cancelling event contracts in the state if the bill were not amended. This led opportunistic leaders in the surrounding area to make appeals to these companies in the hope of luring them out of Indiana. Ultimately, the bill was clarified, likely due in part to corporate pressure on the state to do so. The clarification made it clear that the law could not be used to refuse employment, housing, or service based on an individual’s sexual orientation or gender identity. Controversial legislation like the Religious Freedom Restoration Act is only one of the many environmental factors that can make or break a governor’s reputation and popularity. Other challenges and crises that may face governors include severe weather, terrorist attacks, immigration challenges, and budget shortfalls. New Jersey governor Chris Christie gained national attention in 2012 over his handling of the aftermath of Hurricane Sandy, which caused an estimated $65 billion worth of damage and cost the lives of over 150 individuals along the East Coast of the United States. Christie was famously photographed with President Obama during their joint tour of the damaged areas, and the governor subsequently praised the president for his response. Some later criticized Christie for his remarks because of the close proximity between the president’s visit and Election Day, along with the fact that the Republican governor and Democratic president were from opposite sides of the political aisle. Critics felt the governor had betrayed his party and that the publicity helped the president win reelection. Others praised the governor for cooperating with the president and reaching across the partisan divide to secure federal support for his state in a time of crisis. Image A is of Chris Christie and Barack Obama standing on a sidewalk with another person. Image B is of Chris Christie and Barack Obama in a room full of people. Picture 10.5. New Jersey governor Chris Christie (right) hosted President Obama (center) during the president’s visit to the state in October 2012 following the destruction brought by Hurricane Sandy (a). After viewing the damage along the coastline of Brigantine, New Jersey, Christie and Obama visited residents at the Brigantine Beach Community Center (b). If severe winter weather is forecasted or in the event of civil unrest, governors also have the power to call upon the National Guard to assist residents and first responders or aid in storm recovery. When governors declare a state of emergency, National Guard troops can be activated to go into local areas and assist with emergency efforts in whatever capacity they are needed. In 2015, many governors in the New England region called press conferences, worked with snow-removal crews and local government officials, set up emergency shelters, and activated travel bans or curfews in the face of crippling snowstorms. When winter storms fail to bring predicted levels of snow, however, politicians can be left to field criticism that they instigated unnecessary panic. However, it is a potential catch-22 because if storms end up worse than expected, elected leaders get hammered. For example, a lengthy freeze in south Texas, where even one winter day below freezing is highly unusual, led to a tragic disaster when electrical capacity failed, water pipes froze, and supplies of drinking water were deemed unsafe. A total of 111 people died during the episode and the Texas power grid was within minutes of a total collapse; government officials mandated blackouts, even as people experienced below freezing temperatures.55 Governors feel the weight of their decisions as they try to balance the political risks of overreacting and the human costs of letting the state be caught unprepared for these and other major natural disasters. As the chief spokesperson, they take all the blame or all the credit for their actions. With that said, it is important to note that presidents can enlist the National Guard for federal service as well. President Biden tours an emergency operations center in Houston and meets with Greg Abbott. Picture 10.6. During the record-breaking freeze of 2021, President Biden met in Houston with Texas governor Greg Abbott and other state and local leaders. Governors also have the power to spare or enhance the lives of individuals convicted of crimes in their state. Although they may choose to exercise this formal power only during the closing days of their term, if at all, most governors have the authority to grant pardons just as U.S. presidents do. A pardon absolves someone of blame for a crime and can secure their release from prison. Governors can also commute sentences, reducing the time an individual must serve, if there are doubts about the person’s guilt, concerns about mental health, or reason to feel the punishment was inappropriately harsh. In the past ten years, the governors of New Jersey and Illinois have commuted the sentences of all inmates on death row before repealing the death penalty in their states. Despite the tremendous formal powers that go with the job, being governor is still personally and professionally challenging. The demands of the job are likely to restrict time with family and require forgoing privacy. In addition, governors will often face circumstances beyond their control. For instance, the state legislature may include a majority of members who do not share the governor’s party affiliation. This can make working together more challenging and lead to less cooperation during the legislative session. Another challenge for governors is the plural executive, which refers to the fact that many state officials, such as the lieutenant governor, attorney general, and secretary of state are elected independently from the governor; hence, the governor has no direct control over them the way a president might have sway over U.S. executive officials. Governors can also face spending restrictions due to the economic climate in their state. They may have to make unpopular decisions that weaken their support among voters. The federal government can mandate that states perform some function without giving them any funds to do so. Finally, as we saw above, governors can be swept up in crises or natural disasters they did not anticipate and could not have foreseen. This can drain their energy and hamper their ability to generate good public policy. The Functions of State Legislatures State legislatures serve three primary functions. They perform a lawmaking function by researching, writing, and passing legislation. Members represent their districts and work to meet requests for help from citizens within it. Finally, legislatures perform an oversight function for the executive branch. All state representatives and senators serve on committees that examine, research, investigate, and vote on legislation that relates to the committee’s purpose, such as agriculture, transportation, or education. The number of bills introduced in any given session varies. Some state legislatures have more restrictive rules concerning the number of bills any one member can sponsor. Legislators get ideas for bills from lobbyists of various types of interest groups, ranging from corporate groups to labor unions to advocacy organizations. Ideas for bills also come from laws passed in other state legislatures, from policy that diffuses from the federal government, from constituents or citizens in the officeholder’s district who approach them with problems they would like to see addressed with new laws, and from their own personal policy agenda, which they brought to office with them. Finally, as we explored previously, legislators also work with the governor’s agenda in the course of each legislative session, and they must pass a budget for their state either every year or every two years. Most bills die in committee and never receive a second or third reading on the floor of the legislature. Lawmaking requires frequent consensus, not just among the legislators in a given house but also between the two chambers. In order for a bill to become law, it must pass through both the state house and the state senate in identical form before going to the governor’s desk for final signature. Besides generating public policy, state legislatures try to represent the interests of their constituents. Edmund Burke was a political philosopher who theorized that representatives are either delegates or trustees. A delegate legislator represents the will of those who elected the legislator to office and acts in their expressed interest, even when it goes against personal belief about what is ultimately in the constituency’s best interest. On the other hand, trustees believe they were elected to exercise their own judgment and know best because they have the time and expertise to study and understand an issue. Thus, a trustee will be willing to vote against the desire of the constituency so long as the trustee believes it is in the people’s best interest. A trustee will also be more likely to vote by conscience on issues that are personal to the trustee, such as on same-sex marriage or abortion rights. Regardless of whether representatives adopt a delegate or a trustee mentality, they will all see it as their duty to address the concerns and needs of the people they represent. Typically, this will entail helping members in the district who need assistance or have problems with the government they want addressed. For instance, a constituent may write an elected official asking for help dealing with the bureaucracy such as in a decision made by tax commission, requesting a letter of recommendation for acceptance into a military academy, or proposing a piece of legislation the member can help turn into a law. Legislators also try to bring particularized benefits back to their district. These benefits might include money that can be spent on infrastructure improvements or grants for research. Finally, members will accept requests from local government officials or other constituents to attend parades, ribbon-cutting ceremonies, or other celebratory events within their district. They will also work with teachers and faculty to visit classes or meet with students on field trips to the state capitol. An image of Mitch Landrieu standing in the middle of a group of people who are playing various instruments. A streetcar is in the background. Picture 10.7. To celebrate the opening of the new Loyola Avenue streetcar line, the mayor of New Orleans, Mitch Landrieu, marched with the St. Augustine “Marching 100” on January 28, 2013. The last primary function of state legislators is to oversee the bureaucracy’s implementation of public policy, ensuring it occurs in the manner the legislature intended. State legislatures may request that agency heads provide testimony about spending in hearings, or they may investigate particular bureaucratic agencies to ensure that funds are being disbursed as desired. Since legislators have many other responsibilities and some meet for only a few months each year, they may wait to investigate until a constituent or lobbyist brings a problem to their attention. The Composition of State Legislatures In most states, the legislative function is divided between two bodies: a state house and a state senate. The only exception is Nebraska, which has a unicameral state senate of forty-nine members. State legislatures vary a great deal in terms of the number of legislators in the house and senate, the range of diversity across the membership, the partisan composition of the chamber relative to the governor’s affiliation, and the degree of legislative professionalism. This variation can lead to differences in the type of policies passed and the amount of power legislatures wield relative to that of the governor. According to the National Conference of State Legislatures, at forty members, Alaska’s is the smallest state (or lower) house, while New Hampshire’s is the largest at four hundred. State senates range in size from twenty members in Alaska to sixty-seven members in Minnesota. The size of the institution can have consequences for the number of citizens each member represents; larger bodies have a smaller legislator-to-constituent ratio (assuming even populations). Larger institutions can also complicate legislative business because reaching consensus is more difficult with more participants. The term length in the state house is frequently two years, while in the state senate it is more commonly four years. These differences have consequences, too, because representatives in the state house, with the next election always right around the corner, will need to focus on their reelection campaigns more frequently than senators. On the other hand, state senators may have more time to focus on public policy and become policy generalists because they each must serve on multiple committees due to their smaller numbers. In 2021, according to the National Conference of State Legislatures, women made up 30.6 percent of the nation’s state legislators. However, the number varies a great deal across states. For instance, in Arizona and Vermont, women account for around 40 percent of the state legislative membership. However, they make up less than 16 percent of the legislatures in Alabama, Louisiana, Oklahoma, South Carolina, West Virginia, and Wyoming. A map of the United States titled “Percentage of Women in State Legislature, but State, 2021”. These states are 10-19%: WY, LA, MS, AL, TN, SC, WV. These states are 20-29%: UT, ND, SD, NE, KS, OK, TX, IA, MO, AR, IN, KY, PA, NC. These states are 30-39%: AK, HI, CA, ID, MT, MN, WI, IL, MI, OH, GA, FL, VA, DE, NJ, NY, CT, RI, MA, NH. These states are 40-49%: WA, OR, CO, NM, AZ, ME, VT, RI, MD. These states are 50-59%: DC. These states are 60-69%: NV. Figure 10.3. In 2021, only 31 percent of state legislators across the United States were women. However, the percentage of women in state legislature varies greatly from state to state. Data on minority representatives is more difficult to obtain, but 2019 estimates from Emory University professor Beth Reingold paired with census estimates from 2019 show that African Americans and Latinos are both underrepresented in state government relative to their percentage of the population. In 2009, African Americans made up 9.3 percent of state legislators, compared to the 13.4 percent of the population they constitute nationwide. On the other hand, Latino representatives made up 4.4 percent of state legislators, despite accounting for 18.5 percent of the total population in the United States. The proportion of Latinos in the legislature is highest in Arizona, California, New Mexico, and Texas, while the proportion of African Americans is highest in Alabama, Georgia, and Mississippi. Scholars in political science have spent a great deal of time researching the impact of women and minorities on the legislative process and on voter participation and trust. Some research demonstrates that female and minority representatives are more likely to advocate for policies that are of interest to or will benefit minorities, women, and children. Other research suggests that the presence of African American and Latino representatives increases voter turnout by these groups. Thus, increased diversity in state legislatures can have consequences for voter engagement and for the type of legislation pursued and passed within these bodies. As of early February 2021, thirty states had Republican majorities in the state house and senate, while in eighteen states Democratic majorities were the norm. In only one state, Minnesota, party control was split so that the Democratic Party maintained control of one house while the Republican Party maintained control of the other. The figure below illustrates the partisan composition across the United States. Note that states in New England and the West Coast are more likely to be unified behind the Democratic Party, while Republicans control legislatures throughout the South and in large parts of the Midwest. This alignment largely reflects differing political ideologies, with the more liberal, urban areas of the country leaning Democratic while the more conservative, rural areas are Republican. A map shows legislative control of state house and senate by state as of 2021. These states are marked “Republican”: AK, ID, MT, WY, UT, AZ, ND, SD, KS, OK, TX, IA, MO, AR, LA, WI, MI, IN, OH, PA, KY, WV, TN, NC, MS, AL, GA, FL, SC NH. These states are marked “Democrat”: WA, OR, CA, NV, CO, NM, IL, ME, VT, NY, MA, RI, CT, NJ, DE, MD, DC, VA. Minnesota is marked “split”. Nebraska is marked “Nonpartisan and Unicameral”. Figure 10.4. This map illustrates which party is in control of the house and senate within each state. When one party controls the senate and another party controls the house, the partisan composition is split. Like diversity, party composition has consequences for policymaking. Governors who are not from the same party as the one controlling the legislature can find it more difficult to achieve their agenda. This governing circumstance is popularly referred to as divided government. In a time of divided government, a governor may have to work harder to build relationships and to broker consensus. In addition, when state party control is divided between the legislative and executive branches, the governor may find that legislators are more likely to muster the numbers to overturn at least some of their vetoes. In contrast, when the governor’s own party controls the legislature—a situation known as unified government—conventional wisdom suggests that they will have a smoother and more productive relationship with the legislature. Party composition also matters for the overall legislative agenda. The party in power will elect party members to the top leadership posts in the state house and senate, and it will determine who sits on each of the committees. Committees are chaired by members of the majority party, and the composition of these committees is skewed toward members affiliated with the party in power. This gives the majority party an advantage in meeting its policy objectives and relegates the minority party to the position of obstructionists. In addition, while Republicans and Democrats are both concerned about education, health care, transportation, and other major policy areas, the two parties have different philosophies about what is in the best interest of their citizens and where funds should be allocated to meet those needs. The result is vastly different approaches to handling pressing public policy problems across the states. As a whole, state legislatures have become progressively more professional. Political scientist Peverill Squire, at several points throughout his career, has measured the degree of state legislative professionalism with a ranking across the fifty states. Legislative professionalism is assessed according to three key factors: state legislators’ salary, the length of time they are in session, and the number of staff at their disposal. Members of professional or full-time legislatures tend to consider legislative service their full-time occupation, and they are paid enough not to require a second occupation. They also have larger staffs to assist with their work, and they tend to be in session for much of the year. On the other end of the spectrum are citizen, or part-time, legislatures. Representatives and senators in these legislatures do not enjoy the same perks as their counterparts in professional legislatures. Generally, salary is much lower and so is staff assistance. Members typically need to seek outside employment to supplement their income from legislative work, and the legislature will meet for only a brief period of time during the year. Between these two extremes are hybrid legislatures. Their members are compensated at a higher rate than in citizen legislatures, but they are still likely to need outside employment to make an income equal to what they were making prior to taking office. These representatives and senators will have some staff assistance but not as much as in a professional legislature. Finally, members in hybrid legislatures will not consider their service to constitute a full-time occupation, but they will spend more than part of their time conducting legislative business. As Figure 10.4 shows, California, New York, and Pennsylvania are home to some of the most professional legislatures in the country. On the other hand, New Hampshire, North Dakota, Wyoming, and South Dakota are among the states that rank lowest on legislative professionalism. A map of the United States titled “Level of Professionalism Within State Legislatures, 2008”. California, Pennsylvania, and New York are marked “Full-time, high salary, large staff”. Alaska, Florida, Wisconsin, Illinois, Michigan, Ohio, and Massachusetts, are marked “Full-time, moderately high salary, moderately large staff”. Washington, Oregon, Arizona, Colorado, Nebraska, Oklahoma, Texas, Minnesota, Iowa, Missouri, Arkansas, Louisiana, Indiana, Kentucky, Tennessee, Alabama, South Carolina, North Carolina, Virginal, DC, Maryland, Delaware, New Jersey, Connecticut, and Hawaii are marked “Hybrid”. Idaho, Nevada, New Mexico, Kansas, Mississippi, Georgia, West Virginia, Rhode Island, Vermont, and Maine are marked “Part-time, moderately low salary, moderately small staff”. Montana, Wyoming, Utah, North Dakota, South Dakota, and New Hampshire are marked “Part-time, low salary, low staff”. Figure 10.5. This map illustrates the degree of professionalism within state legislatures. States in purple and green tend to meet full-time and have larger staff and salaries, while the opposite conditions exist in states colored in orange and red. States in blue fall somewhere in the middle of these conditions. Like the other indicators discussed above, legislative professionalism also affects the business of state legislatures. In professional legislatures, elections tend to be more competitive, and the cost of running for a seat is higher because the benefits of being elected are greater. This makes these seats more attractive, and candidates will tend not to run unless they perceive themselves as well qualified. Since the benefits are more generous, elected officials will tend to stay in office longer and develop more policy expertise as a result. This experience can give professional legislatures an edge when dealing with the governor, because they are likely to be in session for about the same amount of time per year as the governor and have the necessary staff to assist them with researching and writing public policy. Practice Question 10.1 ________ are officeholders who represent the will of those who elected them and act in constituents’ expressed interest. The Dual Court System Before the writing of the U.S. Constitution and the establishment of the permanent national judiciary under Article III, the states had courts. Each of the thirteen colonies had also had its own courts, based on the British common law model. The judiciary today continues as a dual court system, with courts at both the national and state levels. Both levels have three basic tiers consisting of trial courts, appellate courts, and finally courts of last resort, typically called supreme courts, at the top. A chart that demonstrates the structure of the dual court system. At the top of the chart is a box labeled “U.S. Supreme Court”. There are boxes below it on either side, arranged in the shape of a triangle. On the left hand side of the triangle are two boxes. From bottom to top, the boxes are labeled “U.S. District Courts” and “U.S. Federal Courts.” An arrow points from the top of the box labeled “U.S. District Courts” to the box labeled “U.S. Federal Courts”. An arrow points from the top of the box labeled “U.S. Federal Courts” to the box labeled “U.S. Supreme Court”. On the right hand side of the triangle are three boxes. From bottom to top, the boxes are labeled “State Trial Courts”, “Intermediate Appellate Courts”, and “State Supreme Courts”. An arrow points from the top of the box labeled “State Trial Courts” to the bottom of the box labeled “Intermediate Appellate Courts”. An arrow points from the top of the box labeled “Intermediate Appellate Courts” to the bottom of the box labeled “State Supreme Courts”. An arrow points from the top of the box labeled “State Supreme Courts” to the bottom of the box labeled “U.S. Supreme Court”. Figure 10.6. The U.S. judiciary features a dual court system comprising a federal court system and the courts in each of the fifty states. On both the federal and state sides, the U.S. Supreme Court is at the top and is the final court of appeal. To add to the complexity, the state and federal court systems sometimes intersect and overlap each other, and no two states are exactly alike when it comes to the organization of their courts. Since a state’s court system is created by the state itself, each one differs in structure, the number of courts, and even name and jurisdiction. Thus, the organization of state courts closely resembles but does not perfectly mirror the more clear-cut system found at the federal level. Still, we can summarize the overall three-tiered structure of the dual court model and consider the relationship that the national and state sides share with the U.S. Supreme Court, as illustrated in the figure above. Cases heard by the U.S. Supreme Court come from two primary pathways: (1) the circuit courts, or U.S. courts of appeals (after the cases have originated in the federal district courts), and (2) state supreme courts (when there is a substantive federal question in the case). In a later section of the chapter, we discuss the lower courts and the movement of cases through the dual court system to the U.S. Supreme Court. But first, to better understand how the dual court system operates, we consider the types of cases state and local courts handle and the types for which the federal system is better designed. Courts and Federalism Courts hear two different types of disputes: criminal and civil. Under criminal law, governments establish rules and punishments; laws define conduct that is prohibited because it can harm others and impose punishment for committing such an act. Crimes are usually labeled felonies or misdemeanors based on their nature and seriousness; felonies are the more serious crimes. When someone commits a criminal act, the government (state or national, depending on which law has been broken) charges that person with a crime, and the case brought to court contains the name of the charging government, as in Miranda v. Arizona discussed below. On the other hand, civil law cases involve two or more private (non-government) parties, at least one of whom alleges harm or injury committed by the other. In both criminal and civil matters, the courts decide the remedy and resolution of the case, and in all cases, the U.S. Supreme Court is the final court of appeal. Although the Supreme Court tends to draw the most public attention, it typically hears fewer than one hundred cases every year. In fact, the entire federal side—both trial and appellate—handles proportionately very few cases, with about 90 percent of all cases in the U.S. court system being heard at the state level. The several hundred thousand cases handled every year on the federal side pale in comparison to the several million handled by the states. State courts really are the core of the U.S. judicial system, and they are responsible for a huge area of law. Most crimes and criminal activity, such as robbery, rape, and murder, are violations of state laws, and cases are thus heard by state courts. State courts also handle civil matters; personal injury, malpractice, divorce, family, juvenile, probate, and contract disputes and real estate cases, to name just a few, are usually state-level cases. The federal courts, on the other hand, will hear any case that involves a foreign government, patent or copyright infringement, Native American rights, maritime law, bankruptcy, or a controversy between two or more states. Cases arising from activities across state lines (interstate commerce) are also subject to federal court jurisdiction, as are cases in which the United States is a party. A dispute between two parties not from the same state or nation and in which damages of at least $75,000 are claimed is handled at the federal level. Such a case is known as a diversity of citizenship case. However, some cases cut across the dual court system and may end up being heard in both state and federal courts. Any case has the potential to make it to the federal courts if it invokes the U.S. Constitution or federal law. It could be a criminal violation of federal law, such as assault with a gun, the illegal sale of drugs, or bank robbery. Or it could be a civil violation of federal law, such as employment discrimination or securities fraud. Also, any perceived violation of a liberty protected by the Bill of Rights, such as freedom of speech or the protection against cruel and unusual punishment, can be argued before the federal courts. A summary of the basic jurisdictions of the state and federal sides is provided in the table below. Table 10.1. Jurisdiction of the Courts: State vs. Federal State Courts Federal Courts Hear most day-to-day cases, covering 90 percent of all cases Hear cases that involve a “federal question,” involving the Constitution, federal laws or treaties, or a “federal party” in which the U.S. government is a party to the case Hear both civil and criminal matters Hear both civil and criminal matters, although many criminal cases involving federal law are tried in state courts Help the states retain their own sovereignty in judicial matters over their state laws, distinct from the national government Hear cases that involve “interstate” matters, “diversity of citizenship” involving parties of two different states, or between a U.S. citizen and a citizen of another nation (and with a damage claim of at least $75,000) While we may certainly distinguish between the two sides of a jurisdiction, looking on a case-by-case basis will sometimes complicate the seemingly clear-cut division between the state and federal sides. It is always possible that issues of federal law may start in the state courts before they make their way over to the federal side. And any case that starts out at the state and/or local level on state matters can make it into the federal system on appeal—but only on points that involve a federal law or question, and usually after all avenues of appeal in the state courts have been exhausted. Consider the case Miranda v. Arizona. Ernesto Miranda, arrested for kidnapping and rape, which are violations of state law, was easily convicted and sentenced to prison after a key piece of evidence—his own signed confession—was presented at trial in the Arizona court. On appeal first to the Arizona Supreme Court and then to the U.S. Supreme Court to exclude the confession on the grounds that its admission was a violation of his constitutional rights, Miranda won the case. By a slim 5–4 margin, the justices ruled that the confession had to be excluded from evidence because in obtaining it, the police had violated Miranda’s Fifth Amendment right against self-incrimination and his Sixth Amendment right to an attorney. In the opinion of the Court, because of the coercive nature of police interrogation, no confession can be admissible unless a suspect is made aware of his rights and then in turn waives those rights. For this reason, Miranda’s original conviction was overturned. Yet the Supreme Court considered only the violation of Miranda’s constitutional rights, but not whether he was guilty of the crimes with which he was charged. So there were still crimes committed for which Miranda had to face charges. He was therefore retried in state court in 1967, the second time without the confession as evidence, found guilty again based on witness testimony and other evidence, and sent to prison. Miranda’s story is a good example of the tandem operation of the state and federal court systems. His guilt or innocence of the crimes was a matter for the state courts, whereas the constitutional questions raised by his trial were a matter for the federal courts. Although he won his case before the Supreme Court, which established a significant precedent that criminal suspects must be read their so-called Miranda rights before police questioning, the victory did not do much for Miranda himself. After serving prison time, he was stabbed to death in a bar fight in 1976 while out on parole, and due to a lack of evidence, no one was ever convicted in his death. The Implications of a Dual Court System From an individual’s perspective, the dual court system has both benefits and drawbacks. On the plus side, each person has more than just one court system ready to protect that individual's rights. The dual court system provides alternate venues in which to appeal for assistance, as Ernesto Miranda’s case illustrates. The U.S. Supreme Court found for Miranda an extension of his Fifth Amendment protections—a constitutional right to remain silent when faced with police questioning. It was a right he could not get solely from the state courts in Arizona, but one those courts had to honor nonetheless. The fact that a minority voice like Miranda’s can be heard in court, and that grievances can be resolved in a minority voice's favor if warranted, says much about the role of the judiciary in a democratic republic. In Miranda’s case, a resolution came from the federal courts, but it can also come from the state side. In fact, the many differences among the state courts themselves may enhance an individual’s potential to be heard. State courts vary in the degree to which they take on certain types of cases or issues, give access to particular groups, or promote certain interests. If a particular issue or topic is not taken up in one place, it may be handled in another, giving rise to many different opportunities for an interest to be heard somewhere across the nation. In their research, Paul Brace and Melinda Hall found that state courts are important instruments of democracy because they provide different alternatives and varying arenas for political access. They wrote, “Regarding courts, one size does not fit all, and the republic has survived in part because federalism allows these critical variations.” But the existence of the dual court system and variations across the states and nation also mean that there are different courts in which a person could face charges for a crime or for a violation of another person’s rights. Except for the fact that the U.S. Constitution binds judges and justices in all the courts, it is state law that governs the authority of state courts, so judicial rulings about what is legal or illegal may differ from state to state. These differences are particularly pronounced when the laws across the states and the nation are not the same, as we see with marijuana laws today. Where you are physically located can affect not only what is allowable and what is not, but also how cases are judged. For decades, political scientists have confirmed that political culture affects the operation of government institutions, and when we add to that the differing political interests and cultures at work within each state, we end up with court systems that vary greatly in their judicial and decision-making processes. Each state court system operates with its own individual set of biases. People with varying interests, ideologies, behaviors, and attitudes run the disparate legal systems, so the results they produce are not always the same. Moreover, the selection method for judges at the state and local level varies. In some states, judges are elected rather than appointed, which can affect their rulings. Just as the laws vary across the states, so do judicial rulings and interpretations, and the judges who make them. That means there may not be uniform application of the law—even of the same law—nationwide. We are somewhat bound by geography and do not always have the luxury of picking and choosing the venue for our particular case. So, while having such a decentralized and varied set of judicial operations affects the kinds of cases that make it to the courts and gives citizens alternate locations to get their case heard, it may also lead to disparities in the way they are treated once they get there. Practice Question 10.2 A state case is more likely to be heard by the federal courts when ________