In his campaign to replace Attorney General Xavier Becerra as California’s next Attorney General, Republican Steven Bailey has promised to roll back California’s sanctuary state policy, as well as to halt lawsuits against the Trump administration. But in doing so, Bailey incorrectly assumes that the Attorney General can make such decisions independent of the Governor. In fact, history shows that the Attorney General’s judgment is subordinate to the Governor’s—and indeed, that the Governor’s constitutional authority is far greater than commonly appreciated.
Like most states, California has a “plural” executive branch, featuring seven separately elected executive officers, from the Governor and Lieutenant Governor, to Treasurer and Controller. Although these officers are separately elected, the Governor’s authority is “supreme” over all others. And this supremacy has grown stronger through 40 years of conflicts between the Governor and his fellow statewide officers.
The first such conflict arose innocently enough in 1977, when then-Attorney General Evelle Younger advised Governor Jerry Brown to sign a labor relations law. After the law took effect, the Pacific Legal Foundation (a free enterprise-oriented legal non-profit) sued to have it declared unconstitutional. By that point, George Deukmejian had succeeded Younger, and chose to side with the Foundation, against Governor Brown, in challenging the law—a turnabout that mirrors Bailey’s proposals today.
When the lawsuit finally reached the California Supreme Court, Justice Mosk was waiting with a rebuke. The constitution, Mosk scolded, was “crystal clear” in giving the Governor “‘supreme executive power’ to determine the public interest; the Attorney General may act only ‘subject to the powers’ of the Governor.” With the stroke of Mosk’s pen, Deukmejian was forced to drop his support for the suit, and fell in line with his Governor. The message was clear: The Attorney General may fancy himself “top cop,” but in the event of a conflict, the Governor prevails.
History has a way of repeating itself, as it did years later in a clash of similarly strong-willed executive officers. In 2004 Governor Schwarzenegger announced he would “direct” Attorney General William Lockyer to “obtain a definitive judicial resolution” of the statewide debate over the legality of same sex marriage. Like Deukmejian before him, Lockyer opted to throw an elbow. Through a spokesperson, he quipped that the Governor “can direct the Highway Patrol. He can direct Terminator 4. But he can’t tell the Attorney General what to do.”
Funny, but legally incorrect. Tellingly, Lockyer chose not to press the point, going on to litigate the gay marriage issue consistent with his Governor’s official views. While this Schwarzenegger-Lockyer episode never reached the courts, another intra-branch kerfuffle did, just four years later.
In 2008, Governor Schwarzenegger issued an executive order furloughing state employees, including those working for the other statewide executive officers. Then-Controller John Chiang refused to comply, forcing the Governor to sue him. Legal eagles will know that the greater part of the furlough litigation resolved in a Supreme Court decision called Professional Engineers v. Schwarzenegger. But the Chiang lawsuit (later joined by the other officers) lived on. And it again teed up the question: Does California’s plural executive prevent the Governor from telling other officers what to do?
Unsurprisingly, the courts again sided with the Governor. Citing the same constitutional provisions as did Mosk 30 years prior, the Court of Appeal held that the Governor was “supreme,” while the constitution “follows a minimalist approach with respect to the Controller and the other officers.” For the lesser officers, the court reasoned, the constitution “provides for the office but . . . leaves it to the Legislature to define the duties and functions of th[eir] office.” Though unheralded, this decision’s implications are vast. Not only can the Governor direct the other officers, his powers are structural—inherent in the state constitutional order itself—and therefore cannot be curtailed by legislation.
Looking at this history officer-on-officer conflicts, it is tempting to view them as a kind of crucible. The Governor’s authority, made of durable constitutional stuff, is repeatedly tested, yet each time emerges stronger.
Of course, the Governor’s powers are not unlimited, and disagreements among the state’s executive officers are best resolved through dialogue rather than fiat. But for those 14 candidates currently competing for statewide office, now may be an apt moment to refamiliarize themselves with the past 40 years of conflicts between the state’s executive officers—and how those conflicts have turned out. The Governor’s power, they will see, remains supreme. Those who miss this constitutional history may be forced to repeat it.