This Essay argues that the Court’s line between state judges and other state officials is not as clean as the case law suggests. Specifically, early state constitutions, as well as the British constitutional order prevailing before the U.S. Constitution was enacted—which did not separate powers as rigidly as the U.S. Constitution—combine to undermine the distinction. Taking this line of analysis seriously is not to deny that commandeering state executive or legislative officials raises federalism concerns. But paying more careful attention to early state conceptions of the separation of powers furthers federalist goals in another way: it engenders respect for the states’ freedom to deviate from the model of government the U.S. Constitution establishes for the federal government. More generally, and perhaps more importantly, this Essay follows in the tradition of other scholarship in emphasizing that one should not look only to the U.S. Constitution to understand the American constitutional tradition: the many state constitutions throughout American history are a part of that tradition also.
Aaron P. Brecher, State (Un)Separated Powers and Commandeering, 83 Fordham L. Rev. Res Gestae 18 (2015), http://fordhamlawreview.org/assets/res-gestae/volume/83/Brecher.pdf.