Sorry State Of Affairs (Affairs Of State?) When You Can’t Define “State”

It all depends on what the meaning of “state” is. You’d think by now, after over two hundred years of experience with those pesky sovereign (or not) units, we’d know what a state is, but as Bush v. Gore and several subsequent controversies have reminded us, we don’t.

Discussing the recent controversy in California over gay marriage in the second post linked above, I began by quoting from an Associated Press article:

John McCain, the GOP nominee-in-waiting whose position on the issue rankles the Republican Party’s conservative base, sought to strike a delicate balance to the Thursday ruling.

He “supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona,” his campaign said in response. “John McCain doesn’t believe judges should be making these decisions.”

McCain rejected the will of the state’s high court even as he tried to maintain his long-held stance that the issue should be left to the states. He suggested that he backs an effort by California’s religious conservatives to put a constitutional amendment defining marriage as solely between a man and a woman on the November ballot.

“The idea here, insofar as there is an idea,” I continued,

is that McCain is, at best, walking a tightrope (attempting “to strike a delicate balance”) and, more likely, simply a hypocrite for claiming to support state rights while opposing “the will of the state’s high court.”

But wait. We’ve heard this argument before, an argument that forces consideration of the surprisingly vexing question: just what is a state? And, just as important, who gets to make the final decision? Some of you may recall that this very question was involved in — some would say at the core of — the late unpleasantness over the Florida election returns in the 2000 elections.

An important question here, I then argued, “not to put too fine or too exaggerated a point on it, is nothing less than, ‘What is a state?’”

As I’m sure you all recall, in the aftermath of Bush v. Gore conservatives on and off the Court were and are still accused of being hypocrites for claiming to be for federalism and states rights while supporting, for purely partisan reasons, the Supreme Court’s running roughshod (so the argument went) over a state’s highest court. That argument was and is fundamentally mistaken, however, because at bottom it rests on the assumption that in a fundamental sense a state is embodied in (and only in) its highest court.

In Bush v. Gore, the relevant fact was that Article Two, Section One, of the U.S. Constitution clearly placed the power to make election rules in the state legislature, whose “seven day” rule was hardly in need of “interpretation.” In what is sure to become the current controversy, some conservatives will encourage the people of California to amend their constitution in a manner that would reverse the California Supreme Court’s gay marriage ruling. There is no “tightrope” to be walked by John McCain or anyone else who claims to believe in federalism and states rights supporting the right of the people of a state to say what their fundamental rights are.

And, as we now know, the people of California did indeed vote to overturn the state Supreme Court’s ruling by amending their constitution, and we are now awaiting that court’s ruling on the constitutionality of the amendment, i.e., on whether the “will of the state’s high court” or the will of the people will prevail.

I return to the issues discussed above by way of background because we have just been confronted with a new need to parse the meaning of “state.” As Jonathan Adler writes on Volokh today,

This week, Governor Mark Sanford announced that South Carolina will reject a large chunk of the stimulus funds targeted for his state. The state legislature may disagree. If so, this could set up a confrontation over the constitutionality of the stimulus, specifically the provision that purports to enable state legislatures to bypass Governors and accept funds on behalf of their state.

Adler points to two other observers who believe the measure is probably unconstitutional. The generally conservative law professor Ron Rotunda asks:

If state law does not give the state legislature the right to bypass the governor, how can Congress just change that law? Where does Congress get the power to change a state constitution? . . .

And liberal law professor Jack Balkin, after stating his belief that Gov. Sanford’s decision is “perverse,” comes to a similar conclusion:

…. Governor Sanford says he doesn’t want the money except to pay down debt; the state legislature has passed a concurrent resolution (which the Governor cannot veto) saying that it wants the money with all the federal strings attached. The federal stimulus bill says that a concurrent resolution is all that is necessary; this provision was inserted in the bill in order to do an end run around GOP governors like Sanford who might refuse federal funds either because of political grandstanding or because of their lack of a basic understanding of economics.

I think this provision may not be constitutional. Unless you can demonstrate that under South Carolina law, the South Carolina Legislature, acting alone, speaks for the State, it would seem to me that the governor’s consent is necessary.

Spending Clause jurisprudence requires that the state freely consent to conditional grants by the federal government. But not just any state official may give consent. The question of who is authorized to give consent to accept federal funding is a question of South Carolina state law, not federal law. Federal law can offer the states money to enforce federal mandates and even to pass legislation, but what it may not do is decide which state official is authorized to consent to federal grants that bind the state and its operations.

Well, no one ever said federalism would be easy.