Joseph Diedrich (Husch Blackwell LLP) has posted Federal Control of State Structure (Duquesne Law Review, Volume 64 (forthcoming 2026)) on SSRN. Here is the abstract:
The conventional narrative holds that the federal Constitution mandates a tripartite separation of powers at the federal level but says nothing about state government structure. States, rather, have free rein to organize themselves as they wish.
This Article challenges the conventional narrative as reductive and largely wrong. True, no constitutional provision explicitly controls state structure. The closest is the Republican Guarantee Clause, which has not been understood to control state structure in any enforceable way.
Yet as this Article catalogues, several other federal constitutional provisions and doctrines have the effect of controlling state structure. Rooted in the enforcement of federal individual-rights guarantees, these doctrines are not necessarily about state structure. But they all have the collateral consequence of requiring states to separate either legislative power from non-legislative power, executive power from non-executive power, or judicial power from non-judicial power.
Considered all together, these various doctrines require, as a matter of federal constitutional law, that states maintain a tripartite separation of powers. They also set forth standards for policing the required separation in accordance with federal law. And, because they ultimately derive from individual-rights guarantees, they are judicially enforceable.
In sum, this Article constructs a theory of federal control of state structure based on existing constitutional doctrines. In addition to exposing the conventional narrative of federal–state interaction as (at best) incomplete, the theory also has further implications. For one, it may help explain perceived tensions between modern structure-controlling doctrines, on the one hand, and constitutional history, on the other. It may also suggest a gravitational-pull reading of the Republican Guarantee Clause that preserves a role for that Clause in constitutional discourse, even if not in constitutional adjudication. And it may offer a useful, theoretically grounded way of interpreting and applying Moore v. Harper’s reference to “ordinary judicial review” in the election-law context.
Interesting and recommended.