When we think about administrative law, we tend to dwell on issues related to federal agencies and the federal laws and institutions that govern those agencies. But the federal government is only one part of a much larger regulatory structure in the United States. State agencies are a significant and crucial component of the contemporary regularly regime, and they deserve more focused scholarly attention. This is especially true because although state agencies perform functions analogous to federal agencies (i.e., they promulgate rules, adjudicate disputes, and monitor private actors), they perform those functions in a very different institutional environment. This article focuses on a significant structural feature of state constitutions that has been largely overlooked in the study of state agencies: the frequent amendment of state constitutions through popular political processes. My core claim is that state constitutional amendments affect state agencies in significant but underappreciated ways that have no reliable analog in the federal context. This in turn suggests that we should be cautious when using federal theories and doctrines to evaluate or conceptualize state agencies. This is especially true because state constitutional amendment practice is directed towards government accountability and independence, which are core themes in administrate law and theory. To support this claim, I first offer a theoretical account of state constitutions that suggests state amendment practice uniquely impacts state agencies. Second, drawing on an original survey of state constitutional amendments, I offer a novel taxonomy of ways that amendments uniquely impact state agencies. Finally, I consider what my findings might mean for a more authentic conceptualization of state agencies and for state constitutional theory more generally.
Jonathan L. Marshfield, Popular Regulation? State Constitutional Amendment and the Administrative State, 8 Belmont L. Rev. 342 (2021)