Administrative Law Article 131 Harv. L. Rev. 483

Gubernatorial Administration


Scholarly preoccupation with presidential power has left another story of executive power largely untold: the rise of American governors. Once virtually powerless figureheads, governors have emerged today as the drivers of state government. On issues from clean energy to voting rights, disaster relief to discrimination, governors regularly exercise their authority in ways that deeply affect millions of people within their home states. And governors’ reach extends beyond state borders. Governors leverage their control of state executive branches to shape national policy, mobilizing (or demobilizing) state agencies as a means of supporting or resisting federal actions on immigration, environmental law, healthcare, and more.

This Article identifies and evaluates the modern regime of gubernatorial administration. It uncovers how and why governors have gained authority, including powers that Presidents lack, and describes the limited checks on gubernatorial power from state-level institutions. It shows that centralized gubernatorial power not only has significant policy consequences, but also provides a new perspective on several contemporary debates — regarding executive power, federalism, and local government law. Gubernatorial administration emerges as a promising vehicle for efficacious governing and a new source of state resilience. But concentrated gubernatorial power also creates opportunities for executive overreach, at least in the absence of strong oversight by other institutions, such as state legislatures, courts, media outlets, or civil society — institutions that may currently lack the capacity or incentives to serve as effective checks.

* Assistant Professor of Law, University of Wisconsin Law School. For helpful comments and conversations, my thanks to Michael Asimow, Jessica Bulman-Pozen, Nestor Davidson, Neil Komesar, Ron Levin, Bill Marshall, Sara Mayeux, Gillian Metzger, Jon Michaels, Anne Joseph O’Connell, John Ohnesorge, Eloise Pasachoff, Sabeel Rahman, Aaron Saiger, David Schwartz, Peter Shane, Carolyn Shapiro, Brad Snyder, Mila Sohoni, Kevin Stack, Rob Yablon, the editors of the Harvard Law Review, and to participants in the Administrative Law New Scholarship Roundtable, the Duke-Colorado Environmental and Energy Law Workshop, and the ACS Public Law Workshop. I thank Chris Avallone, Justin Dreikosen, Tip McGuire, Dan Schneider, and Bonnie Shucha for excellent research assistance, and Lauren Weber for excellent research and editorial assistance.