Politics & Policy

Progressive ‘Federalism’ Makes a Mockery of the Founders’ Vision

New York Attorney General Eric Schneiderman (Brendan McDermid/Reuters)
What was once a dirty word for Democrats is now a key tactic in advancing the Left’s agenda.

Since President Donald Trump took office, Democrats seem to have developed a newfound fondness for federalism. Democratic state attorneys general have challenged the president on everything from the administration’s travel ban, to a presidential directive narrowing Obamacare’s birth-control coverage requirement, to efforts to identify and deport violent criminals in the United States illegally.

While all this may look familiar — after all, Republican states locked horns with President Obama often — Democrats’ efforts are unprecedented in scale and detrimental to constitutional government. By the end of Trump’s first year in office, Democratic states had already brought 35 lawsuits against his administration. Over the course of his eight years in office, Republicans brought only 46 lawsuits against Obama’s administration.

Democratic attorneys general, pundits, and plaintiff’s lawyers claim that the reason for this dramatic uptick in legal obstruction is President Trump’s supposed disregard for the Constitution. But this is not the case. Many of the lawsuits emanating from blue-state capitals are not based on any tenable interpretation of the Constitution or any relevant federal statute.

For instance, several blue-state attorneys general claimed that the president lacked authority to bypass environmental regulations to expedite the construction of a border wall, even though a 2005 law gives the Homeland Security secretary authority to do just this. The case was dismissed.

Right now, three Democratic governors are preparing to bring a federal lawsuit challenging a provision in the recently passed tax overhaul that would limit the deductibility of state and local taxes. They claim this deduction limit violates the equal-protection rights of people living in blue states, since no red-state government has imposed taxes that surpass the deductibility cap. This is an absurd reading of the 14th Amendment. According to the Tax Foundation, this shot-in-the-dark case “will almost certainly fail.”

These threadbare legal arguments are a thin veil for the actual motives of Democratic lawmakers and lawyers. These state officials apparently see themselves as part of the resistance. Burying the president’s agenda under a mountain of paperwork is job No. 1. Defending the Constitution is not only subordinated to this goal, but actually sacrificed in service of it.

Progressive “Federalism”

Indeed, the unprecedented legal campaign being waged by Democratic state officials against the Trump administration will actually diminish the authority of states to establish their own policies within their own borders. This is because, in regard to domestic policy, Democratic governors, legislators, and attorneys general are often calling for more federal intervention, not less.

For instance, in New York v. Pruitt et al., Democratic attorneys general tried to force the Trump administration to keep in place an Obama-era regulation allowing the Environmental Protection Agency to police wetlands, mudflats, wet meadows, and “prairie potholes” as if they were navigable “waters of the United States.” In Washington v. Trump, blue-state attorneys general sued the administration over new rules that would allow religious business owners more discretion as to what medical procedures to cover in their employer-funded health-insurance policies. With Maryland, et al. v. U.S. Department of Education, Democratic attorneys general are attempting to expedite the enforcement of new regulations on for-profit colleges.

To the extent that Democratic state governments have tried to block — rather than prompt — federal action, it has been in areas where the federal government has clear constitutional authority to act. Democratic attorneys general have sued the president over a temporary travel ban halting citizens of eight countries identified as potent sources of terrorism, despite the fact that national security is a core federal function and the president has clear statutory authority to act.

California’s recent immigration laws, now being challenged in court, are perhaps the clearest example of a state attempting to obstruct the federal government’s discharge of its enumerated constitutional duties. Although the federal government is given sole authority to establish a “uniform rule of naturalization,” California has made it illegal for state officials and private-sector employers to voluntarily aid the federal government’s efforts to identify and deport those here illegally.

While the Supreme Court bars the federal government from commandeering state law-enforcement officials to enforce federal law, it does not give states authority to prosecute individuals who voluntarily comply with federal laws. Here too the motivation appears to be resistance. As President Pro Tempore of the California Senate Kevin de León said: “California is building a wall of justice against President Trump’s xenophobic, racist, and ignorant immigration policies.”

Constitutional Federalism

By contrast, when Republicans challenged Obama-era statutes and regulations, it was generally to the end of limiting, rather than promoting, federal action in domestic-policy areas that the Founders imagined would be left to the states. Republican state attorneys general and lawmakers sued the Obama administration over the Environmental Protection Agency’s over-broad interpretation of the Clean Water Act, the Affordable Care Act’s individual mandate, and a directive on transgender bathroom use in public schools, to name a few.

Democratic efforts to craft the nation’s defense and immigration policy from the few state capitals they still control does not reflect the Founders’ federalism. The Founders created a system of dual sovereignty wherein the federal government would deal with a small and well-defined set of truly national issues such as foreign affairs, trade, monetary policy, and immigration, while the states would essentially handle everything else. This is the version of federalism that Republican state governments attempted to uphold during the Obama administration.

In fairness, Republican attorneys general are also challenging the Trump administration on immigration policy. Ten Republican states are currently preparing a lawsuit to end the protected status of so-called DREAMers: children whose parents brought them to the United States illegally while they were minors. Republicans also challenged an Obama-administration executive order that deferred prosecution of the parents of DREAMers.

But there is a big difference between these lawsuits and the actions of blue-state attorneys general. Republican state attorneys general are pressuring the administration to enforce the law in a policy area for which the federal government is solely responsible. Unlike environmental policy or transgender bathroom preferences, states cannot establish immigration policy on their own. They must rely on the federal government to do this, and, if the federal government does not act, or if a president acts unilaterally beyond his constitutional or statutory authority, they have little recourse other than to bring a lawsuit.

Prompting the federal government to properly discharge functions the Founders intended it — and only it — to carry out is consonant with federalism rightly understood. Attempting to usurp the federal government’s enumerated powers, or prompt the federal government to overstep the boundaries the Founders established for it, does not.

What Democratic state governments are doing today has nothing to do with the Founders’ federalism, as its foremost champions freely admit. Yale Law School professor Heather Gerken, a champion of “progressive federalism,” has bluntly stated: “This is not your father’s federalism. This is a completely different federalism.” In this, she is absolutely correct.

While the Founders certainly did not anticipate a boundless and unchecked federal power, they also did not anticipate a federal government ground to a halt by court filings as it attempts to discharge clear constitutional authority. As Attorney General Jeff Sessions correctly pointed out, “There is no nullification. There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg or to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled.”

John York — John York is a researcher in the Institute for Constitutional Government at the Heritage Foundation.

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