This piece originally appeared on BillMoyers.com.
The Department of Homeland Security (DHS) released the first of its “name and shame” lists last week, intent upon intimidating 96 sanctuary cities — towns, cities and counties — that refused requests from Immigrations and Customs Enforcement (ICE) to detain undocumented immigrants in order for federal agents to pick them up. If states or cities refuse to comply, President Trump has threatened to cancel their federal funds, but thanks to the U.S. Constitution, it’s an empty threat. There is a little-used “anti-commandeering” doctrine that says using federal tax and spending powers to coerce state or local governments to enforce federal law violates states’ rights. For years, states’ rights and federalism have been a right-wing cause, but now the tables are turning.
What is federalism? Is progressive federalism an oxymoron?
Short answer: Federalism is part of our government’s design — a vertical sharing of power between the national and state governments. Our Constitution outlines a separation of powers between the federal government’s three branches. The 10th Amendment holds onto the remaining balance of power for the states, which is often referred to as states’ rights. With the national government now in a Republican grip and President Trump rolling out executive orders, a conversation has begun about what a progressive federalism makeover might look like.
Federalism — a vertical, ambiguous division of power — doesn’t have a particular political valence, says Kenneth Mack, a legal historian at Harvard Law School. Your embrace of federalism has a lot to do with “whose ox is being gored.” When people invoke federalism, he says, it is because “they think it is going to do something that they prefer to have done.” Federalism is “simply, completely, opportunistic,” agrees Sanford Levinson, a professor of law and government at the University of Texas. “You join up with the governmental unit that you think will be most favorable to your agenda.”
The president, Congress and the Supreme Court often hog the spotlight, so it is easy to forget that the states were here first. In 1786, people were geographically distributed in populations that “at some level didn’t trust one another and might not like one another,” says Levinson. But at the Constitutional Convention of 1787, the goal was to form a “more perfect” union that would provide military security and a more open system of trade, while retaining the rights of states. “It was not the job of the federal constitution to create states or to give them power,” says Ernest Young, a law professor and federalism expert at Duke University. “It was trying to elbow out a little space for the federal government to exist too.” The result, he says, was a “rough balance” between the government and constituent states, and at each level “there is a huge range of divisions of power.” When either the states or the national government thinks the other is overstepping its authority, it turns to the judiciary, which serves as a referee. In the worst-case scenario, states threaten secession and it leads to civil war, as it did in 1861.
Alexander Hamilton versus Thomas Jefferson
The United States has had a philosophical tug-of-war over federalism from its founding, most notably between Thomas Jefferson, our first secretary of state, and Alexander Hamilton, our first treasury secretary. In the 1790s Hamilton argued for a stronger centralized government and a national bank. He made his name in the world of urban commerce and believed that a vibrant merchant class and centralized power would be America’s ticket to worldwide stature. Hamilton organized the Federalist Party to support this vision and pushed Congress for a national bank. Jefferson, an educated owner of 10,000 acres and 200 slaves, wanted the country to remain a nation of farmers in control of their own destinies (and of the grim fates of their slaves) and he advocated for maintaining strong state power. Jefferson feared a centralized government would lead to European-style tyranny and, along with James Madison, he founded the Democratic-Republican Party to push back against monopolistic financiers. But don’t confuse the Democratic-Republican Party with the current Democrats and Republicans, or the Federalists with contemporary federalism — they are different species.
The 10th Amendment
The last amendment of the Bill of Rights is the 10th, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This is a truism, Mack explains, that says “certain powers were given to the national government and that traditional powers were still possessed by the states.” But as a matter of substance, he says, “There isn’t much consensus on what the 10th Amendment means.” According to Levinson, “People who like states’ rights like the 10th Amendment. People who don’t like states’ rights tend to be dismissive of the 10th Amendment.” Young describes the 10th Amendment as “reading guidelines” for other parts of the Constitution. Article I, for example, lists Congress’ enumerated powers and anytime there’s a list says Young, lawyers will ask if it is exclusive or representative. “The 10th Amendment answers that question, it says no, the list is exclusive. If a given federal power isn’t in, then it is out.” The default rule for the states is the opposite: “If they are not forbidden from doing things than presumptively they can,” says Young.
Laboratories of democracy
Throughout U.S. history, important reforms began on the state and local level — abolishing slavery in Massachusetts (1783); giving women the right to vote in Wyoming (1869); implementing workmen’s compensation in Wisconsin (1911), or passing a minimum wage law in Massachusetts (1912). Supreme Court Justice Louis Brandeis, appointed to the court in 1916, was a progressive era champion of federalism, attacking “the curse of bigness.” He famously noted that the states are “laboratories” of democracy and wrote:
“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Like Jefferson, Brandeis thought concentrated financial and federal power was a threat to democracy. But since the 1930s and the New Deal, many progressives looked to the federal government for safety net protections, and to the Supreme Court for liberties guaranteed by the First and 14th Amendments. Small-government conservatives, on the other hand, more frequently advocate for federalism to uphold power centered in the states.
Tarnished states’ rights
The arguments used to fight the historic Civil Rights Act of 1964 and the Voting Rights Act of 1965 were based on federalism. Southern politicians claimed the federal government was exceeding its power, and they used states’ rights as “a shield to deny black citizens basic rights,” says Mack. When Alabama Gov. George Wallace stood “in the schoolhouse door” and refused to let African-American students enroll at the University of Alabama, he invoked the 10th Amendment. That is why the term “states’ rights” is to this day a dog whistle for racists. “There is no question that states rights was often used to defend horrible things,” says Young, but decentralization is not by definition conservative. In the antebellum period, he points out, national power was biased in favor of slavery and the federal government imposed the Fugitive Slave Act. It was states’ rights that attempted to protect the abolitionists. The problem, according to Young, “was racism and not federalism.”
Fast forward to today. Progressives have lost the federal government and are seeing the merits of decentralized solutions to problems posed by Trump’s policy proposals. “What is so interesting about the present moment,” says Levinson, “is that the ideology has become completely and utterly mixed up.” Progressive federalism is not an oxymoron, nor is it hypocritical. Throughout history, both progressive and conservative federalism has been opportunistic. Instead of the “laboratories of democracy,” Young says, he is beginning to think the states are valuable as the “fallout centers of democracy, where the defeated party can go back and build up its strength and live to fight another day.”
“You look for any port in the storm, and the theory of state autonomy is one of those ports,” agrees Levinson. The deep alienation from the national government that the left is feeling right now was “mirrored up through the election by the deep alienation from the national government on the right, when you had Republican states doing whatever they could to torpedo national legislation,” he says.
Following are some of the issues upon which states may test their powers to go it alone, or resist new federal policies. Yale law professor Heather Gerken calls the latter “uncooperative federalism,” writing that the federal government lacks the resources to “deal with immigration, enforce its own drug laws, carry out its environmental policies, build its own infrastructure or administer its health system. . . . Progressives at the state and local level can influence policy simply by refusing to partner with the federal government.”
- Sanctuary Cities
The immigration issue is critical, says Levinson, because it is a conflict “that could trigger a civil war.” When the federal government demands state or local resources to carry out its immigration policy, it infringes on states’ constitutional rights. The current standoff has the “overtones of the fugitive slave issue in 1850,” says Levinson, “psychologically we are in a pre-Civil War situation.” Mack agrees: “This is Boston right before the Civil War. They didn’t want to have their local institutions made to support slavery.” What makes the current immigration debate so “fraught with tension and potentially explosive,” says Young, is that there are “regional and sometimes cultural conflicts between groups of citizens committed to very different enterprises.”
Under a waiver in the Clean Air Act, California can write and enforce tougher regulations for car emissions and fuel economy. Other states can opt into the California standards if they want to. But the standards are up for review again in 2025, and there is growing concern that Scott Pruitt, the new EPA administrator, will try to kill California’s waiver. As Oklahoma attorney general, Pruitt created a federalism unit in his office that repeatedly sued the federal government to reduce the regulations for polluters.
- Health Care
“We got to Obamacare in the first place because states had been able to test models, which was really valuable,” says Young. Now, when the Affordable Care Act is under renewed attack, state senators in California and New York have introduced bills to establish comprehensive, single-payer health care programs for their residents. While blue-state federalism may expand health care for some Americans, it was red-state federalism that struck down the Medicaid expansion provision in the Affordable Care Act. In 2012 the Supreme Court ruled it’s unconstitutional to make all federal Medicaid funds to states conditional on compliance with the federal law. This same “anti-commandeering” doctrine may be used again if the Trump administration follows through on its threat to withhold federal money from sanctuary cities.
- Legalized Marijuana
Federal law bans marijuana use, but 28 states and the District of Columbia have legalized it in some form (including eight states and DC, where it’s legal for recreational purposes). While Attorney General Eric Holder was willing to look the other way, White House press secretary Sean Spicer recently predicted “greater enforcement” of the ban. Colorado, for example, is clearly violating federal law, says Levinson: “I am extremely interested in whether or not Attorney General Jeff Sessions will send federal marshals or the FBI to bust the marijuana business there.”