State Judges Should Ground Their Rulings in Their State's Constitution

It always feels a bit weird to me when a state Supreme Court has held that some law or practice of that state is unconstitutional, and then the U.S. Supreme Court reverses. Like, I dunno. If a state legislature refrained from passing a law because it thought the law violated the federal Constitution, but the federal courts disagreed with this conclusion, they wouldn't be able to force the state into passing the law. Why, from the federal government's perspective, should it matter which officials within the state government decide that the state is not going to have a certain law, because they erroneously believe it to be unconstitutional? It feels like forcing the state to do something it doesn't want to do, which is just weird. Of course, I get that this logic doesn't really hold, among other things because someone will have appealed the case to the Supreme Court, either the state government itself (in which case it's not quite right to say that, as far as the feds are concerned, the state doesn't want to enforce the law) or a private party whose success in some lawsuit depends upon that state law's being valid. That person is entitled to their judgment unless the federal Constitution says otherwise. So, I get it. The federal courts are allowed to reverse state court decisions interpreting the federal Constitution, even when that means vacating a judgment voiding a law of their own state.

But... why would a state court ever allow one of its judgments to suffer this fate? Because the thing is, just as state courts have no authority to interpret the federal Constitution contrary to how the federal courts interpret it, so too do the federal courts have no authority to interpret state constitutions contrary to how the state courts have interpreted them. And I believe that almost every state constitution has general language in it similar to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which are responsible for the overwhelming majority of the unconstitutionality of state laws. (Technically much of that burden should fall on the Privileges or Immunities Clause, but as a doctrinal matter it doesn't so that's beside the point for this purpose.) So, therefore, if I were a state supreme court and I were drafting an opinion striking down some state law because I thought it contrary to the federal Constitution, I know what I'd do, every single time: I would include a bit of language saying that, oh yeah, the analogous language in my state's own constitution commands the same result. Because, you see, the federal courts can't touch that holding. So even if they think I'm wrong about the federal constitutional issues, they can't actually reverse my judgment and reinstate the law. Hell, if I include one paragraph making clear that I've read my holding into the state constitution as well, the government (or whoever) can't even appeal to the federal courts, because the case would be moot! It would totally immunize my judgments (of this sort) against federal reversal.

I'm reminded of this by seeing a dissenting judge in a Georgia case about racially discriminatory peremptory strikes in the selection of juries argue for a similar tactic. Except there, the federal law had already been established, so the court would just have been saying, "well, yes, the federal Constitution doesn't require this, the Supreme Court has said so and we're bound by that, but we think the Georgia Constitution does." Quite rightly, he admits that Supreme Court doctrine limiting the application of the rule against such discriminatory strikes is binding on the Georgia court, but as he points out, there is absolutely nothing wrong with interpreting the state's own constitutional guarantees to go beyond the federally-mandated "floor." Just so: when the federal courts decide that a certain state practice is unconstitutional, that's the end of things, but when they decide a practice is constitutional, state courts are still allowed to have their own say, and they may do so in ways that no federal court can touch. Even of nothing more motivates the state judges than a belief that the federal courts are wrong, and should be interpreting the federal Constitution differently! State judges have essentially plenary power to effectively nullify any federal constitutional decision upholding state practice. And that's good--this isn't like ordinary nullification, where a state tries to nullify a federal law or do something that the federal courts say does violate the federal Constitution, because there's nothing in federal law requiring the states to do things the Supreme Court says aren't unconstitutional.

So why don't we see state courts using this tactic more often?

Executive Agreements, Iran, and Missouri v. Holland

So. A bunch of Republican Senators have apparently written an "open letter" to the government of Iran regarding negotiations currently taking place between Iran and various Western countries, including the United States. This is, shall we say, highly improper. It would rather easily answer to the description "unconstitutional," in a vague, amorphous sense (obviously there's nothing for a court to review or invalidate, but the letter is pretty clearly inconsistent with an overall constitutional structure in which the President is given primary responsibility for diplomacy, out of a felt need for the nation to speak with one voice in foreign affairs). Arguably it also at least skirts the line of being illegal, under the Logan Act of 1799, which bans unauthorized citizens from corresponding with foreign governments to try to influence their behavior toward the U.S. (Although obviously the Obama Administration is not going to prosecute these Republican Senators for this offense, even if they're guilty of it: prosecuting your political opponents, generally not great politics. Also the law is of dubious constitutionality (and they could easily have mooted the whole issue by just reading their "open letter" into the Congressional record, invoking the Speech and Debate privilege, which is absolute).)

But that's not the point, of this blog post at least. Rather, what interests me about the letter is the way it helps tie together some thoughts I've been having of late about "executive agreements." Because that's the main thrust of the letter, which purports to explain certain "features of our constitution" which Iran should keep in mind while negotiating. By this they mean the esoteric fact, which surely the leaders of Iran have never encountered before, that the United States has the world's worst treaty ratification system, requiring a two-thirds vote in the Senate that is basically impossible to obtain even on totally uncontroversial things. This means, the Senators accurately note, that any agreement reached in the present negotiations will be a mere "executive agreement," which, they note, a new President could revoke unilaterally. This is, if you take it on its face, a pretty majestic display of concern-trolling: it's not that the Senate Republicans are opposed to the deal (which would make it a little tougher to deny the Logan Act violation), they're just concerned for the poor Iranian government, which might find itself being misled by that nasty Obama into thinking it has a binding agreement, and might do something like act in reliance on that belief, only to find that, in fact, the next President pulls the rug out from under them. We wouldn't want that, now would we.

But of course, they are right: the deal would only be an executive agreement (because we all know that these same 47 Republicans would vote against ratifying the treaty that will never be drafted, let alone presented to the Senate, before they even read its language (which is why it will never be drafted)). So... what? What exactly are executive agreements, in the constitutional structure? How are they different from treaties? Are those differences relevant from Iran's standpoint? (Spoiler alert: the answer to that last one is "no.") Like probably most people who've ever heard the phrase, I first learned about "executive agreements" in my high school civics class (okay, it was AP U.S. Government, which might explain why we learned about executive agreements...), and have always had the general sense that they're just this thing, this informal treaty-like thing, that doesn't require Senate ratification but also therefore in some vague way doesn't have the same kind of force of law. That way of discussing them leads to the feeling that there's something vaguely unsettling or illegitimate about them. But there isn't, and seeing why requires merging the great big lesson of a class I'm taking this semester, Administrative Law, with the great case Missouri v. Holland.