Academic journal article Albany Law Review

The Single-Subject Rule: A State Constitutional Dilemma

Academic journal article Albany Law Review

The Single-Subject Rule: A State Constitutional Dilemma

Article excerpt


Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. (1) Forty-three state constitutions include some sort of "single-subject" rule, that is, the requirement that each act of the legislature be limited to a single subject. (2) Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. (3) Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 cases in 2016 alone. (4) Many of these decisions have involved controversial, hot-button issues. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, (5) abortion, (6) tort reform, (7) immigration, (8) local minimum wage laws, (9) sex offenders, (10) enhanced criminal penalties, (11) and school vouchers. (12)

Yet, despite having long been a part of the constitutional law of most states, (13) the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a "single subject." (14) Instead, a persistent theme in the single-subject jurisprudence has been the inevitable "indeterminacy" of "subject" (15) and a recognition that whether a measure consists of one subject or many will frequently be "in the eye of the beholder." (16) On the one hand, as the Michigan Supreme Court once explained, "[t]here is virtually no statute that could not be subdivided and enacted as several bills." (17) On the other hand, as an older Pennsylvania Supreme Court case put it, "no two subjects are so wide apart that they may not be brought into a common focus, if the point of view be carried back far enough." (18)

In practice, the meaning and enforcement of the rule has usually turned on how deferential the court thinks it ought to be to the legislature or, conversely, how much it sees the combination of topics in a new law as reflecting the legislature's defiance of the norms of proper law-making. Over the past century and a half, state courts for the most part appear to have given a liberal interpretation to the concept of "single subject" and have rejected most single-subject challenges to state legislation. (19) Even with the uptick in findings of violations in recent decades, (20) the meaning of the rule remains murky, with the case law consisting of a mix of unpredictable "I know it when I see it" decisions. (21)

Due to the slipperiness of "subject," many analyses have focused on what are regularly said to be the primary purposes of the rule--the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process--and have called for reframing the enforcement of the rule around the advancement of these goals. (22) But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. (23) Moreover, it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. (24) So, too, the more aggressive use of the single-subject rule urged by advocates as a means of thwarting "legislative chicanery" (25) and "backroom politics" (26) could also undo the cooperation and compromise necessary to get difficult but important legislation enacted.

Part II of this Article briefly reviews the history and purposes behind the single-subject rule. Part III examines how state courts have applied the single-subject rule, with particular attention to some recent state supreme court single-subject cases interpreting the rule. Part IV focuses on arguments for reframing enforcement of the rule more tightly around its purposes, particularly the goals of preventing logrolling or riders. …

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