Category Archives: Constitution

Federalism

In the United States, states have a long history of being considerably less than united. The Articles of Confederation were so focused on protecting the prerogatives of the individual colonies that they proved unworkable, and were replaced by a Constitution that made its own significant concessions to “states’ rights.”

As the country modernized and experienced increasing economic and social integration, the need for national standards became more obvious. Lawmakers recognized that federal agencies regulating things like health or clean air and water needed to issue regulations that would operate similarly in all the states. The Uniform Law Commission (also known as the National Conference of Commissioners on Uniform State Laws), was created to draft legislation that would bring stability and conformity to state statutory law in areas where such uniformity is seen as desirable and practical. And there is an obvious need for federal law enforcement to enforce its criminal laws nationally.

But there is still room for considerable variation. Justice Brandeis memorably called the states in our federalist system “laboratories of democracy.”

Americans increasingly operate, live and do business in multiple states–a situation that led me to discount the importance of federalism for a long time. (Different laws in different states, after all, caused some very silly situations; before the Supreme Court found same-sex marriage to be a Constitutional right, people who were married in one state weren’t considered married in others.) I focused on the downside and failed to appreciate the upside.

The Trump administration has reminded me of federalism’s importance. Governors like Jay Pritzker in Illinois and Gavin Newsom in California, among others, have illustrated that importance, and a recent article from Vox called federalism a “hidden constraint” on Trump.

So far, the biggest successes against President Donald Trump’s second-term assault on democracy have come not from Congress and the Supreme Court, but more unusual sources: lower-court judges, “No Kings” protests, a Disney+ subscriber boycott, and Trump’s own indiscipline and incompetence.

After the 2025 elections, we can add the states to the list. And in some ways, this avenue of resistance may prove to be the most consequential one.

The article noted that the United States’ federalist system is unusual among backsliding democracies– and that it creates some “major opportunities for institutional pushback” that aren’t possible elsewhere. It also notes the irony of where we are today, since for most of our history, states (especially in the South) “have been places where pockets of authoritarianism could exist in a nationally democratic society.”

Certain of the powers that are, in our system, remitted to the states — very much including control over the administration of elections — are mechanisms through which we can resist this administration’s authoritarian power grab. We can see this most vividly in Trump’s effort to rig the upcoming midterm elections by asking Red states to engage in improper mid-cycle gerrymanders.

Because election administration is almost entirely devolved to the states in the American system, Trump has very limited powers to actually try and rig elections from DC. Instead, gerrymandering at the state level — threatening and cajoling governors and state legislatures into drawing as many safe seats for Republicans as possible — is his best shot at actually stacking the deck in the GOP’s favor in 2026.

As we are seeing, that effort is currently failing. Not only have Blue states “counter-gerrymandered,” but legislators in Red states like Indiana have (at least so far) refused to go along, deferring to the huge majorities of their constituents who disapprove.

As the article points out, would-be autocrats follow a well-worn path that requires consolidating formal power in their own hands and neutering independent checks on their authority. It’s a lot harder to rig elections or prosecute your political opponents when you don’t control the necessary levels of power. True, strong federalism cannot guarantee democracy: (Our history has ample examples of authoritarianism flourishing at local levels) But that system creates “opportunities for contestation” when the national government is moving in an unAmerican direction.

It’s hard to imagine a more unAmerican–not to mention demented– administration than the one we currently have. In just the last week, our mad would-be King has accepted a bribe from Saudi Arabia, authorized extra-judicial killings of Venezuelan fishermen, called for the death of political opponents who had the temerity to remind our troops that they took an oath to defy manifestly illegal orders, and responded to a legitimate question from a reporter by calling her “piggy.”

Given the fact that we have a Congress of eunuchs and a corrupt majority on the Supreme Court, I have a new appreciation for the role of federalism in America’s system of checks and balances.

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The Equal Protection Of The Laws

From day one, the Trump administration has made its disregard for the Equal Protection Clause of the 14th Amendment and its deep-seated racism too clear to ignore. Just a few examples will suffice: the recently-announced intent to limit the number of refugees the country will accept to 7500, while giving priority to White South Africans; directing ICE to stop and harass people based on nothing but skin color; the constant and ferocious attacks on DEI; the ongoing efforts to disenfranchise Black voters…the list goes on. And on. 

The best response to MAGA protests that the racist label is unfair was in a recent headline from The Hill. It read “If MAGA doesn’t want to be labeled racist, it should stop elevating racists.”

Memo to President Trump’s backers: If you want people to stop calling you racist, stop saying and doing racist things. And stop excusing racist posts and rants by leading voices in the MAGA media.

When Nick Fuentes and Tucker Carlson recently ranked among the top five on Spotify’s list of top trending podcasts, it screamed out that racism and antisemitism are not a problem for their MAGA-world fan base.

None of this, of course, surprises those of us who have understood since 2016 where Trump’s support lies. MAGA’s racism has been too glaringly obvious to ignore. But more recently, it seems that MAGA’s animus goes beyond race, gender and religion; the administration is evidently determined to undermine the very concept of Equal Protection–the belief that all citizens are entitled to the equal application of the laws. (For that matter, Trump clearly wants the effective repeal of the entire 14th Amendment–beginning with birthright citizenship, but definitely not ending there.)

The Washington Post has reported on the administration’s most recent assault on the very concept of Equal Protection of the Laws. The administration now wants to deny people who hold different political beliefs a benefit to which they are legally entitled.

Employees of nonprofit organizations that work with undocumented immigrants, provide gender transition care for minors or engage in public protests will have a hard time getting their federal student loans forgiven under regulations advanced Thursday by the Education Department.

The 185-page rule revises eligibility requirements for Public Service Loan Forgiveness, which cancels the education debt of government and nonprofit employees after 10 years of service and 120 monthly loan payments. It will allow the education secretary to disqualify employers — not individuals — who engage in activities the department deems to have a “substantial illegal purpose” on or after July 1 — when the rule takes effect

Current law makes those holding student loans eligible for a federal program offering loan forgiveness if they focus on areas that serve the public good. The law has defined those categories as including careers in education, public health or public interest law. The proposed rule would dramatically change a program that has offered debt relief “to more than 1 million student loan borrowers across more than 20 sectors of the economy.”

The proposed rule was prompted by a Trump Executive Order that designated disfavored nonprofits that should no longer be eligible for government benefits. 

A partial list of those the administration wants to deem ineligible is telling:

Aiding and abetting violations of federal immigration laws.
Supporting terrorism or engaging in violence for the purpose of obstructing or influencing federal government policy.
Engaging in the chemical and surgical castration or mutilation of children in violation of federal or state law.
Engaging in a pattern of aiding and abetting illegal discrimination.

The subjectivity is obvious–and the point. We’ve seen how ICE defines the obstruction of government “policy.” We’ve seen what the administration considers “aiding and abetting” (i.e. offering opinions that are protected free speech). The administration defines medical treatment of transgender children to be “mutilation.”

And of course, the administration takes the position that any effort to level the playing field for minorities amounts to “illegal discrimination” against White Christians.

You can almost hear the mob boss. “Want your student loan forgiven, so you can afford a house or a new car? It would be a shame if all those payments you’ve already made didn’t count…maybe you should change jobs.” 

I doubt that Trump can spell, pronounce or define “arbitrary and capricious” but those terms describe what would result from his efforts to ignore the clear meaning of the 14th Amendment–and for that matter, the rest of the Bill of Rights.  Citizens would no longer have an automatic right to equal treatment–their access to government programs would depend upon the degree to which they are willing to bend the knee.

Like it works in a monarchy…..
 

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That Constitutional Ethic

Thursday, I traveled to Hancock County, to speak at what their community foundation calls a “Collaboration Station.” My assignment was to address–or perhaps commiserate with– local elected and appointed officials who are serving at a time of intense political polarization and hostility–to offer them guidance suggested by relevant academic research.

We covered a lot of ground that isn’t necessary to include in this post, but I think the concluding portion of my presentation is relevant to the discussions that occur here–as well as consistent with the overarching message of the recent No Kings rally–so here’s that portion of my talk.

_________________

Back in 2011, I co-authored a textbook for use in classes on public administration. That textbook was titled American Public Service: Constitutional and Ethical Foundations, and in it, my co-author and I described what we dubbed “The Constitutional Ethic.” We argued that public officials cannot make intelligent policy decisions unless they have a basic understanding of America’s constitutional framework, because government legitimacy and the rule of law require that a government’s operations be consistent with its country’s legal framework.

It was the thesis of our textbook that the U.S. Constitution dictates a very particular approach to public service—that the legal philosophy animating the Constitution and Bill of Rights establishes certain ethical norms. That philosophy starts with the Founders’ belief in limited government. I want to emphasize that—political rhetoric to the contrary–limited government is not the same thing as small government; in our system, government’s authority is supposed to be limited to areas that in our system are deemed properly governmental.

As we wrote in the introduction to that textbook, a public servant’s ability to do a job well depends upon how well that official understands what the relevant rules are, why we have these particular rules rather than others, and why we choose to solve some problems collectively through government action while leaving other problems to individuals and voluntary associations.

Public officials certainly don’t need to be constitutional scholars, but it is necessary that they understand the general principles and values on which this nation built its governing structures, because—as I said before and as I want to emphasize– ethical public service requires performance consistent with those foundational principles and values.

Let me be clear about what that means. Fidelity to our constituent documents requires a basic understanding of the constitutional framework. Public servants in the United States are responsible for discharging their various duties in a manner that is consistent with that framework, consistent with what I sometimes call “the American Idea,” the philosophy that animates our governing and legal structures. That requirement is obviously more or less relevant depending upon your job description—less to a surveyor or engineer, more to law enforcement personnel. But it applies to some extent to all public officials.

I am certainly not the only person to suggest that citizens’ current inability to engage in productive civic conversation is largely an outgrowth of declining trust in our social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are going to make our representative democracy work—but in order to trust government, both citizens and political functionaries need to understand what government is and is not supposed to do. We all need to understand how government actors are supposed to behave—in other words, we need to understand what behaviors our particular Constitutional system requires, and what behaviors are inconsistent with that system. (A sound civic education would impart that knowledge; unfortunately, the current emphasis on job skills and STEM has largely displaced citizenship instruction.)

As most of you in this room understand, the choices originally made by this nation’s Founders shaped a very distinctive American culture. Those constitutional choices have shaped our beliefs about personal liberty, and our conceptions of human rights. They’ve framed the way we allocate social duties among governmental, nonprofit and private actors. I think it’s fair to say that those initial Constitutional choices created a distinctively American worldview.

Most Americans fail to understand how incredibly radical the choices made for the then-new United States were for the times. For example, in the new country our Founders established, unlike the situation in countries elsewhere, citizenship wasn’t based upon geography, ethnicity or conquest; instead, it was based on an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” Perhaps the most revolutionary element of the American Idea was that our Constitution based citizenship on behavior rather than identity. An individual’s status and rights depended upon how that individual behaved rather than on who he or she was.

Right now, as you all know, there are elements in American society and government trying to ignore or even reverse that fundamental precept. We’ve had stunning Supreme Court decisions that allow government actors to ignore the 4th Amendment’s requirement of probable cause and to detain people based only upon their skin color or language, and we have numerous political figures who insist that White Christians are the only “real Americans” –and that others are not.

Public officials who are focused on providing basic services usually aren’t tempted to distinguish between members of the public on the basis of their identity—local officials pave streets that everyone drives on, pick up garbage from all the homes in a district, fight fires wherever they erupt and so forth. But many of you do hold positions that allow or even require the privileging of some citizens over others, and making those distinctions on the basis of identity—as some political actors at both the state and national level are encouraging you to do—would  violate both the 14th Amendment’s Equal Protection clause and a foundational American ideal. Disadvantaging or firing people based upon opinions they’ve expressed, as some political actors are advocating, would be a violation of the First Amendment’s guarantee of free speech. Obeying such mandates or similar ones, would violate the Constitutional ethic.

My co-author and I had both practiced constitutional law, and at the time we wrote the textbook, we both held professorships in schools of public affairs. We wrote the book, it was adopted by several schools of public management, and we both went on to pursue other projects. To be honest, I hadn’t revisited that textbook for several years, and when I was preparing for this workshop, I pulled it out again– and I will admit I was startled to read some of the supposedly “far-fetched” examples we’d used that were intended to illustrate the relationship between public administration and the Constitution. We explained, for example, that the Constitution and other authorities in our legal system don’t permit American officials to use U.S. troops to address domestic criminal activity; that the Constitution doesn’t permit censorship as a solution for disfavored political opinions; that the Equal Protection Clause wouldn’t permit the reduction of welfare rolls by refusing to feed Black or Hispanic children, and that substantive due process guarantees prevent government from forcing women either to abort or give birth.

Fourteen years later, some of those examples are no longer so far-fetched.

As we acknowledged in that textbook, the American Idea is not monolithic, and it is constantly contested and evolving, but—as we also insisted– it has real content. It rests on considered normative judgments about the proper conduct of public affairs, and it prescribes an ethic that should dictate the behavior of those engaged in public administration and management—even when it is uncomfortable or even dangerous to do so.

So here’s the bottom line: When push comes to shove—when keeping your heads down is no longer an option— the Constitutional ethic must guide you.

These days, that may not be comforting.

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Real Judges Judge The Supreme Court

Those of us who follow the courts are seeing something unusual. District and appellate federal court judges are criticising a Supreme Court that has lost its constitutional moorings. They are mostly–but not always– expressing those criticisms in civil and restrained language, but the fact that they are publicly criticising at all is really unprecedented. 

Much of the criticism has focused on the Court’s use of its Shadow Docket to empower the Trump administration without bothering to provide legal analyses explaining why the Court is ignoring many of its own long-time precedents. In a recent New York Times article, federal Judges warned of a ‘Judicial crisis’  they attributed to the Supreme Court’s string of opaque Emergency Orders. According to the report, “dozens” of judges shared “concerns about risks to the courts’ legitimacy” as a result of these orders. As the Times noted,

The striking and highly unusual critique of the nation’s highest court from lower court judges reveals the degree to which litigation over Mr. Trump’s agenda has created strains in the federal judicial system.

Other critiques have centered upon the Court’s disregard for what had long been considered binding precedent. I have previously shared widespread concerns sparked by the Dobbs decision–a deeply dishonest analysis that not only overruled the fifty-year precedent established in Roe v. Wade, but called into question the judicial doctrine of Substantive Due Process–a doctrine that restrains government intrusion into citizens’ individual liberties. 

Dobbs was only one example of this Court’s willingness to disregard the foundational separation of church and state, a process that a Hawaiian Judge recently criticised in a scathing opinion. (You really need to read his entire, eloquent screed.)

The Roberts Court casually dismisses the lessons of American and world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. Bad things happen unless government and religion are completely separated. The Court ditches neutrality and boosts accommodation over the wall. It flirts with the true harms the framers foresaw – coercion, exclusion, and civil strife. It invites state involvement with religion. And it exposes minority faiths and nonbelievers to majoritarian impulses. A snap of a few fingers and accommodation became a constitutional imperative. “[T]he Court leads us to a place where separation of church and state becomes a constitutional violation.” Carson v. Makin, 596 U.S. 767, 810 (2022) (Sotomayor, J., dissenting). Under the Court’s redesign, the Free Exercise Clause backspaced the Constitution’s first words.

The Court’s makeover happened with little mention of the Establishment Clause or Everson. Plus, the Court benched its go-to interpretive method. Suddenly, payments from the public treasury flow to religious institutions to fund religious exercise. The First Amendment had told Americans that public resources can’t support religious activity. For centuries. Yet “[w]hat a difference five years makes” to a hurried Court. 

In contrast to our rogue Supreme Court, the lower courts have overwhelmingly upheld traditional constitutional principles. (An excellent example is this opinion, rendered by a Massachusetts District Court in a lawsuit brought by the AAUP, Harvard and others.) At least one organization that tracks these lawsuits has found that the administration has lost 92% of lower court suits.

Interestingly, an analysis done by a researcher for the libertarian Niskanen Center found that during Trump’s first term, Republican-appointed judges had ruled for him more frequently than their more liberal counterparts, but that this time, those ideological preferences have disappeared. Not only have a huge number of nationwide injunctions against Trump’s unconstitutional efforts been put in place by the lower courts, but the ideological divide has disappeared.   Republican judges–including those appointed by Trump– are ruling against the administration at the same rate as more liberal judges. 

Niskanen’s researcher found that lower courts imposed injunctions in some 90% of the cases–and that legal precedents had clearly required that result. Nevertheless, the Supreme Court has ruled for the administration almost without exception. As the researcher concluded, 

It’s hard to draw any conclusion other than the Supreme Court is doing whatever it can without going too far to advance the broader efforts, especially when it comes to dismantling the existing constitutional order. It’s really quite striking…theSupreme Court has been extremely, extremely, I would say, engaged in helping the administration out in any place it can. And it’s created, there was this article recently just talking about the Civil War within the judiciary. It’s created a lot of tension between the lower course and the Supreme Court as a result because their rulings are basically getting nullified in a way that they had not experienced in the past.

Lower court judges have raised the alarm. It’s past time to address the obvious corruption of the Supreme Court.

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I Told You So

Who really hates America?

In the run-up to No Kings Day, Republican leaders hysterically described participants as terrorists–as people who “hate America.” Those charges were never particularly effective; the first No Kings protest had brought out a cross-section of citizens who very clearly loved the America of the Constitution and Bill of Rights, and who were prepared to defend it against the real “enemy within.” Grandmothers and veterans joined young and middle-aged people in an affirmance of genuine patriotism.

If there was any confusion about who loves and who hates the America envisioned by the Founders, it came just a couple of days before the second No Kings Day, in an expose from Politico.

Here’s the lede:

Leaders of Young Republican groups throughout the country worried what would happen if their Telegram chat ever got leaked, but they kept typing anyway.

They referred to Black people as monkeys and “the watermelon people” and mused about putting their political opponents in gas chambers. They talked about raping their enemies and driving them to suicide and lauded Republicans who they believed support slavery.

Politico obtained 2,900 pages of Telegram chats–representing 28,000 messages– reflecting conversations among the leaders of national Young Republican groups. The chats  spanned more than seven months, and included Young Republicans from New York, Kansas, Arizona and Vermont. As the report summed up the discovery, the contents offered “an unfiltered look at how a new generation of GOP activists talk when they think no one is listening.”

And the way they talk is both horrifying and profoundly unAmerican.

Together, the messages reveal a culture where racist, antisemitic and violent rhetoric circulate freely — and where the Trump-era loosening of political norms has made such talk feel less taboo among those positioning themselves as the party’s next leaders…

The group chat members spoke freely about the pressure to cow to Trump to avoid being called a RINO, the love of Nazis within their party’s right wing and the president’s alleged work to suppress documents related to wealthy financier Jeffrey Epstein’s child sex crimes.

As Politico pointed out, the disgusting rhetoric employed by these Young Republican “leaders” reflects a widespread coarsening of political discourse and the increasing use of incendiary and racially offensive tropes. That coarsening comes straight from the top. The article referenced Trump’s post of an artificial intelligence-generated video portraying House Minority Leader Hakeem Jeffries in a sombrero, while Senate Minority Leader Chuck Schumer proposed trading free health care for immigrant votes. Offensive as that post was, it was only the latest of a long string of repellant social media outbursts from the senile and wildly unPresidential occupant of the Oval Office.

In his 2024 campaign, Trump spread false reports of Haitian migrants eating pets and, at one of his rallies, welcomed comedian Tony Hinchcliffe, who called Puerto Rico a “floating island of garbage” and joked about Black people “carving watermelons” on Halloween.

As the article quite accurately notes, the chat rhetoric, which spared few minority groups, essentially mirrored a number of popular conservative political commentators, podcasters and comedians, all of whom have participated in the erosion of what was previously considered acceptable discourse. It quoted a political science professor who attributed the increasing use of racist and anti-Semitic rhetoric to Trump’s “persistent use of hostile, often inflammatory language.”

In one astonishing exchange, a suggestion that they tie an opponent to neo-Nazi groups was discarded because participants noted that it might hurt more than help–because such ties would be viewed positively by their own voters. 

There is much, much more in the linked article, and it is sickening. It is also profoundly inconsistent with what I call the American Idea–the philosophy that permeates the Declaration of Independence, the Constitution and the Bill of Rights. It is an example–as if one were needed–of what the participants in protests like No Kings oppose.

Compare the disgusting, hateful, pro-Nazi comments in the chat (including one that “loved Hitler”) with the sentiments on the signs at the No Kings events, and draw your own conclusions about who the patriots truly are.

The Young Republicans who participated in this disgusting chat truly do hate the America that is trying to live up to its original ideals. And despite the pro-forma claims of elected Republicans trying to distance themselves from this filth, we know where they learned both the language and the sentiments.

 

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