Category: Analysis

Overview State officials would benefit from a clear analytical approach to combating the new presidential administration’s onslaught of executive orders. We propose adapting Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer as a model for evaluating how to deploy state power against attempts to impose policy by federal executive decree.[1] Youngstown was a horizontal separation-of-powers decision that analyzed federal executive action against congressional power; here we show how its framework applies equally well to vertical federalism conflicts between the federal executive and the states. Analysis A proposed model for approaching conflicts between states and the federal executive...

Overview The November 2024 election ballot in Alameda County saw an unusual occurrence: overlapping recalls of the Alameda district attorney and the Oakland mayor. Media coverage of these recalls portrayed those separate county and city contest results as being very similar. But a more detailed look shows a noted discrepancy in the vote totals among the Oakland voters who could cast ballots for both officials. Price did significantly better in Oakland than Thao, mainly because a significant number of the pro-Price voters did not also cast a ballot in the mayoral recall. This is probably explained at least in part...

Overview The U.S. Supreme Court has consistently denied the press’s requests for special constitutional protection under the First Amendment. This is unlikely to change under the Roberts Court. In fact, the Court may roll back existing press protections in the coming years. Press advocates must now look to other sources of protection instead. One promising possibility is state constitutions. California’s constitution, in particular, operates as a valuable yet underutilized source of protection for journalists and other newsgatherers. Discussion The Press Clause of the First Amendment has little independent meaning. For decades, the high court has extended protection for the press...

Overview This year the California Supreme Court demonstrated that the past few years were a transition phase and gave some signs of what is to come. One year ago, in our 2023 year-in-review article, we observed that the court had settled into stasis, coalescing into such high unanimity that it simultaneously ruled out any appearance of partisan bias while also sparking concerns from other court watchers about uncritical groupthink and bare-minimum productivity. This year one factor in that discussion (the three-way split between the appointing governor blocs) remains the same, and in practice such partisan affiliation markers still provide no...

Overview The key takeaway from the California Supreme Court’s recent decision in Castellanos v. State of California (S279622) is less about the initiative power or workers’ compensation and more about framing: how a court or advocate can control a case and direct its outcome by carefully defining the question to be answered. Here, by limiting the question presented to a narrow issue, the court set itself up to give a clear answer. This limited approach contrasts with the court’s comprehensive treatment of the Taxpayer Protection and Government Accountability Act in Legislature v. Weber (S281977). This contrast is explained by the...

Overview The California Supreme Court’s decision in Legislature v. Weber (S281977) is about power, in three ways: the scope of the initiative’s ability to alter branch powers, the distribution of power among the branches and the judiciary’s role in maintaining that balance, and how the amendment–revision analysis now incorporates what we would view as core powers questions. In this article we explain why the court’s decision to invalidate the Taxpayer Protection Act is best viewed through the core powers lens because the court first identified a core power, found that it was materially impaired or defeated, and employed the judiciary’s...

Overview During the oral argument in Castellanos v. State of California (S279622), the justices several times posed this question to counsel: could the voters by initiative abolish workers’ compensation? We would have answered that question: “Certainly not, your honor, because the electorate cannot defeat or materially impair the constitutional power of a branch with a statutory initiative.” That simple answer flows, as we explain below, from our view that California’s core powers analysis should apply to the voters when they act against another branch. Analysis Review: the core powers analysis should apply to the electorate To briefly recap our previous...

Overview California has a housing crisis: according to one housing affordability index, only 15% of California households can afford a home at the state’s median home price.[1] The legislature has attempted to increase housing supply by requiring cities to meet new housing targets through housing elements, which are part of a city’s general plan.[2] But current housing element law leaves untouched the local direct democracy powers of initiative and referendum.[3] This has generated lawsuits and confusion. For example, Encinitas voters have quashed multiple housing element amendments with referenda, spurring litigation challenging that practice.[4] Those lawsuits produced divergent results: one judge...

Overview By granting review in Legislature v. Weber (S281977) the California Supreme Court may have committed itself to resolving one of the most difficult questions in California constitutional law: distinguishing between an impermissible constitutional revision and a permitted constitutional amendment. The California Constitution Center recently argued that this question is best avoided until after the election. That’s partly because engaging in preelection review likely requires the court to confront the constitutional conundrum presented by an initiative amendment that attacks a core branch power. If resolving that question is truly necessary, we argue here that the best approach is to apply...

Overview Article I, section 24 of the California constitution states that “[r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”[1] Nevertheless, the California Supreme Court generally does not interpret the California constitution independently. Instead, the state high court generally follows the U.S. Supreme Court’s interpretation of analogous constitutional provisions unless there are “cogent reasons” not to do so.[2] That is the wrong approach because it violates the will of the California voters to have the California constitution serve as an independent guarantee of rights, and it offends the California’s independent sovereignty from the...