I have always been ambivalent about American federalism. I know that many in the legal community, including Supreme Court Justices who came after him, agreed with Justice Brandeis that federalism encourages the states to be “laboratories of democracy,” but I also know that many states–including the one I inhabit–use “states’ rights” as their defense against compliance with national rules, especially– but certainly not exclusively–the extension of civil liberties to their own citizens.
The election of Donald Trump, however, has made me a federalism fan.
In a recent opinion piece, Jennifer Rubin focused on the possibilities for resistance that our federalist system provides to Blue state governors in the face of Trump’s assault on rational federal governance.
The positive news: Governors are constitutionally empowered and morally obligated to check the federal government and fill the gaps where the federal government has abandoned vulnerable people. They will be the last line of defense against an irresponsible and reckless Trump administration.
Fortunately, an extraordinary batch of Democratic governors including Tim Walz of Minnesota, JB Pritzker of Illinois, Gretchen Whitmer of Michigan, Wes Moore of Maryland, Josh Shapiro of Pennsylvania and Maura Healey of Massachusetts appear ready to both protect their residents from a reckless administration and offer an alternative vision that benefits average Americans.
Keith Ellison, the attorney general of Minnesota, told the New York Times, “States in our system have a lot of power — we’re entrusted with protecting people, and we’re going to do it.” He added, “They can expect that we’re going to show up every single time when they try to run over the American people.”
What can states do to counter what Rubin calls Trump’s “grab bag of crackpots?” His bizarre choice of RNK, Jr., who has declared war on medicine, is joined by his pick for secretary of defense, a man who doesn’t appear to believe in germs, and a nominee to head up Medicare who championed the anti-malarial drug hydroxychloroquine for COVID-19, (Her column appeared before the CEO of the Wide World of Wrestling was chosen to head up the Department of Education.)
In the face of growing evidence that Trump intends to decimate the federal government, what can governors do? According to Rubin, plenty. With respect to health issues,
they can stockpile vaccines and abortion medications, offer medical school students from red states a transfer to their schools, loosen rules for telemedicine, ease requirements to license doctors accredited elsewhere, reiterate vaccine requirements for schoolchildren (and fund free vaccine programs for vulnerable communities), expand their own health departments and pool resources to fund medical research. In short, they can develop an alternative model of responsible health-care governance.
Governors’ actions can go well beyond healthcare. If Trump’s government tries to enforce his promises to roll back overtime and worker safety rules, governors can enforce state laws protecting workers. They can defend the environment by bringing a steady stream of litigation to protect air, water and natural resources. (Rubin notes that Democracy Forward, a legal group formed after Trump’s 2016 win, has built a “multimillion-dollar war chest and marshaled more than 800 lawyers to press a full-throated legal response across a wide range of issues.”)
On other fronts, they can sue to enforce consumer protection rules or challenge coercive action depriving states of federal funds. (States filed roughly 160 suits against the first Trump administration.) Bob Ferguson, Washington’s Democratic attorney general and governor-elect, recently said that, according to Associated Press, “offices of Democratic attorneys general have been in touch for months to talk about how to push back against Trump’s policies.” They also can maintain strict gun safety regulations, bring suits against gun manufacturers and fund research on gun violence….
To promote democracy, they can offer enhanced civics education, public media literacy programs and public service requirements for high school and college graduates. And, as leading legal minds have been arguing for some time, they can creatively expand multistate compacts on everything from “social services delivery; child placement; education policy; emergency and disaster assistance; corrections, law enforcement, and supervision; professional licensing; water allocation; land use planning; environmental protection and natural resources management; and transportation and urban infrastructure management.” A new entity, Governors Safeguarding Democracy, may be just the vehicle to facilitate this activity.
Finally, Rubin notes that governors can counter the right-wing media ecosphere by highlighting the damage caused by anti-family, anti-child and anti-life MAGA policies.
Rather obviously, Red state governors won’t take such measures, so the resistance won’t be uniform. But it will be instructive. And it will offer Americans options– places to relocate to if and when their own state’s compliance with the wrecking crew becomes too onerous.