- Collection:
- Georgia Law Review
- Title:
- A Governor's Duty to Ask
- Creator:
- Mazeitis, Jake
- Date of Original:
- 2025-01-01
- Subject:
- University of Georgia. School of Law
Law--Study and teaching
Georgia Law Review Association - Location:
- United States, Georgia, Clarke County, Athens, 33.96095, -83.37794
- Medium:
- articles
- Type:
- Text
- Format:
- application/pdf
- Description:
- As some federal constitutional protections contract, state constitutions are becoming an increasingly important source of individual rights. But state constitutional development involves either amendment or litigation, processes both slow and costly. Ten states offer a third path: They empower governors to request advisory opinions from their supreme courts. These governors, however, have rarely exercised this power. This article argues that a governor’s refusal to seek such advice violates the constitutional duty to faithfully execute the law; specifically, the law respecting the separation of powers. Drawing on an empirical analysis, I first show that governors are generally shy to ask for advice, a trend which has only intensified in recent years. I then conduct a survey of state executive power jurisprudence to show that each of the ten states imposes a gubernatorial duty to compel constitutional behavior from the executive branch. That duty necessarily includes a responsibility to determine what the constitution requires. But the task of state constitutional interpretation falls firstly to the state supreme court, not the governor. Ultimately, I argue that respect for the separation of powers—particularly when read in light of the constitutional grant of the advisory power—requires governors to more actively use their power to ask for advice. Recognizing this “duty to ask” not only respects the role of the state supreme court in defining the constitution, it also catalyzes the development of state constitutional law. By inviting courts to define state rights proactively, governors can help build a doctrinal foundation for future litigants and promote the public good.
constitutional law -- governor -- advisory power -- Law - External Identifiers:
- Metadata URL:
- https://digitalcommons.law.uga.edu/glr/vol59/iss4/7
- Holding Institution:
- Alexander Campbell King Law Library
- Rights:
-
