States’ (And Cities’) Rights

I’ve never been a big fan of federalism–I’ve seen too much in the way of retrograde parochialism defended in the name of “states’ rights”–but as the song goes, I’m beginning to see the light. As Heather Gerken writes,

These days it’s an extraordinarily powerful weapon in politics for the left and the right, and it doesn’t have to be your father’s (or grandfather’s) federalism. It can be a source of progressive resistance and, far more importantly, a source for compromise and change between the left and the right.

As Gerken points out, the federal government is heavily dependent upon state and local officials to implement its policies. Immigration is a good example; even though immigration law comes unambiguously under federal jurisdiction, the federal government relies to a significant extent upon the co-operation of local police officers. Recently, LA Police Chief Charlie Beck announced that his force will not help the Trump administration deport undocumented immigrants. Several cities have reaffirmed an intent to be “sanctuary cities,” protecting undocumented people.

Lack of co-operation can be passive or active.

Sometimes states engaged in uncooperative federalism simply refuse to participate in federal programs, or they do so begrudgingly. Some states have refused to carry out the Patriot Act and federal immigration law. States didn’t just denounce the Patriot Act’s broad surveillance and detention rules as an attack on civil liberties. Blue and red states instructed their own officials not to collect or share information with the federal government unless there was a reasonable suspicion of criminal activity, or they forbade state officials to engage in activities inconsistent with the states’ constitutions.

Politico reports that at least 37 cities are resolute in their commitments to undocumented immigrants, even in the face of Trump’s threat to “cancel all federal funding to sanctuary cities.” None have moderated their resistance to cooperation with federal immigration officials.

States resisted the No Child Left Behind Act by manipulating testing standards and by slow-walking reforms. State recalcitrance was so great that eventually the Bush Administration threw in the towel and granted states so many waivers that the federal program was basically gutted.

Of course, that strategy won’t work when the federal action is “deregulatory;” uncooperative federalism is irrelevant when there isn’t a program to resist, and Trump’s choice of cabinet nominees signals his intent to gut much of the federal regulatory structure.

But that’s where spillovers come in. When one state regulates, it often affects its neighbors. When Texas insisted that its textbooks question evolution, its market power ensured that textbooks used in blue states did the same. When Virginia made it easy to buy a gun, guns flooded into New York City despite its rigorous firearms prohibitions. When West Virginia failed to regulate pollution, toxic clouds floated over Ohio.

But spillovers, like federalism, don’t have a particular political valence. Just as there are spillovers conservatives cheer, there are spillovers progressives celebrate. Want to know who really sets emissions standards in this country? It’s not the EPA. It’s California, which sets higher emissions standards than the federal government. Because no company can afford to give up on the California market, our cars all meet the state’s high standards.

Gerken reminds us that “states’ rights” can be deployed for progressive ends, despite regressive deployment of the tactic in the past. (According to Vox, Colorado, for example, is investigating the possibility of keeping its Obamacare marketplace even if the ACA is repealed.)

Progressives have long thought of federalism as a tool for entrenching the worst in our politics. But it’s also a tool for changing our politics. Social movements have long used state and local policymaking as an organizing tool, a rallying cry, a testing ground for their ideas.

The most remarkable example in recent years has been the same-sex marriage movement, which depended heavily on state and local sites as staging grounds for organizing and debate. That process may explain why those equality norms now run deep enough that the Supreme Court’s ruling on same-sex marriage in Obergefell — a decision that would surely have caused intense controversy not so long ago — was greeted with enormous enthusiasm in many quarters and opposed in precious few.

All of these strategies require a change in focus from progressives’ reflexive preference for top-down, uniform national policies to bottom-up activism. Those of us in (mostly blue) cities are in the best position to generate opposition to Trump’s edicts, to throw sand in the gears of his federal apparatus. In red states like Indiana, non-cooperation will require us to identify those aspects of Trump’s agenda that are most at odds with the interests of the state, and to focus our disruptive forces there.

There’s a satisfying irony to using a states’ rights mantra to protect human rights, rather than deny them. Call it karma.

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About Those Democratic Norms…

This morning’s New York Times contains a disquieting submission from two Harvard government professors. They began

Donald J. Trump’s election has raised a question that few Americans ever imagined asking: Is our democracy in danger? With the possible exception of the Civil War, American democracy has never collapsed; indeed, no democracy as rich or as established as America’s ever has. Yet past stability is no guarantee of democracy’s future survival.

We have spent two decades studying the emergence and breakdown of democracy in Europe and Latin America. Our research points to several warning signs.

Pre-eminent among those warning signs is the emergence and electoral success of what the authors call “anti-democratic” politicians, who can be recognized by their failure–or refusal– to reject violence, willingness to curtail civil liberties, and their attacks on the legitimacy of elected governments. As they illustrate, Trump fits the bill.

Another warning sign is the weakening of democratic institutions and norms.

Among the unwritten rules that have sustained American democracy are partisan self-restraint and fair play. For much of our history, leaders of both parties resisted the temptation to use their temporary control of institutions to maximum partisan advantage, effectively underutilizing the power conferred by those institutions. There existed a shared understanding, for example, that anti-majoritarian practices like the Senate filibuster would be used sparingly, that the Senate would defer (within reason) to the president in nominating Supreme Court justices, and that votes of extraordinary importance — like impeachment — required a bipartisan consensus. Such practices helped to avoid a descent into the kind of partisan fight to the death that destroyed many European democracies in the 1930s.

As the authors note, “partisan restraint” and other norms of democratic behavior have significantly eroded, replaced by naked power struggles.

The filibuster, once a rarity, has become a routine tool of legislative obstruction. As the political scientists Thomas Mann and Norman Ornstein have shown, the decline of partisan restraint has rendered our democratic institutions increasingly dysfunctional. Republicans’ 2011 refusal to raise the debt ceiling, which put America’s credit rating at risk for partisan gain, and the Senate’s refusal this year to consider President Obama’s Supreme Court nominee — in essence, allowing the Republicans to steal a Supreme Court seat — offer an alarming glimpse at political life in the absence of partisan restraint.

The erosion of these governing norms did not happen all at once; the signs of growing dysfunction have been visible–especially at the federal level–for decades. Although Trump did not cause the weakening of these safeguards, he was a clear beneficiary.

In the wake of November 8, pundits have scrambled to “explain” the election results. As James Fallows writes in “Despair and Hope in the Age of Trump,” most of those explanations are wrongheaded.

Fallows, too, underscores the importance of democratic norms, and the implications of Trump’s contempt for rules of any kind.

The American republic is based on rules but has always depended for its survival on norms—standards of behavior, conduct toward fellow citizens and especially critics and opponents that is decent beyond what the letter of the law dictates. Trump disdains them all. The American leaders I revere are sure enough of themselves to be modest, strong enough to entertain self-doubt. When I think of Republican Party civic virtues, I think of Eisenhower. But voters, or enough of them, have chosen Trump.

Fallows dismisses two popular explanations of that choice: the belief that this was a sweeping “change” election, and the theory that the vote reflected the “desperation and fury” of citizens living away from the liberal coasts. Change elections drive waves of incumbents out of office; as he notes, that didn’t happen. The “rage” theory is similarly wanting. As Fallows says, that theory misses

the optimism and determination that are intertwined with desolation and decay in the real “out there.” I can say that because I have been out there, reporting with my wife, Deb, in smaller-town America for much of the past four years….

A Pew study in 2014 found that only 25 percent of respondents were satisfied with the direction of national policy, but 60 percent were satisfied with events in their own communities. According to a Heartland Monitor report in 2016, two in three Americans said that good ideas for dealing with national social and economic challenges were coming from their towns. Fewer than one in three felt that good ideas were coming from national institutions. These results also underscore the sense my wife and I took unmistakably from our visits: that city by city, and at the level of politics where people’s judgments are based on direct observation rather than media-fueled fear, Americans still trust democratic processes and observe long-respected norms.

It really is the media.

Count me among those who have become convinced that the decline of responsible journalism, the proliferation of “fake news” sites and the increasing sophistication of propaganda (Russian or homegrown)–abetted by a dangerous lack of civic literacy– are largely to blame for the disconnect between citizens and their national government, and for the erosion of those all-important democratic norms.

Fallows’ concluding paragraph is  profound.

Nearly a century ago, Walter Lippmann wrote that the challenge for democracies is that citizens necessarily base decisions on the “pictures in our heads,” the images of reality we construct for ourselves. The American public has just made a decision of the gravest consequence, largely based on distorted, frightening, and bigoted caricatures of reality that we all would recognize as caricature if applied to our own communities. Given the atrophy of old-line media with their quaint regard for truth, the addictive strength of social media and their unprecedented capacity to spread lies, and the cynicism of modern politics, will we ever be able to accurately match image with reality? The answer to that question will determine the answer to another: whether this election will be a dire but survivable challenge to American institutions or an irreversible step toward something else.

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Rule of Law? Respect for Democracy? Not in the Age of Trump…

Remember the quote–attributed to John Adams–to the effect that the then-new American Constitution had created “a government of laws, not men”?

One of the most important improvements in our human efforts to improve governance was development of the concept of rule of law–the radical notion that fair rules should be established and everyone–including government officials and others in positions of power– should be expected to follow those rules (including the rules on how rules should be changed).

Adherence to the rule of law, in spirit and fact, is absolutely essential to the legitimacy of a governing authority.

Which brings us to the truly outrageous behavior of Republican lawmakers in North Carolina. As the New York Times reported earlier this week,

Republicans in the North Carolina legislature on Wednesday took the highly unusual step of moving to strip power from the incoming Democratic governor after a bitter election that extended years of fierce ideological battles in the state.

After calling a surprise special session, Republican lawmakers who control the General Assembly introduced measures to end the governor’s control over election boards, to require State Senate approval of the new governor’s cabinet members and to strip his power to appoint University of North Carolina trustees.

Republicans also proposed to substantially cut the number of state employees who serve at the governor’s pleasure, giving Civil Service protections to hundreds of managers in state agencies who have executed the priorities of Gov. Pat McCrory, a Republican.

These extraordinary steps–taken in the wake of a democratic (note small “d”) election that produced a result displeasing to the state’s GOP–unquestionably violate democratic norms, and may well violate the North Carolina state constitution.

The election of a Democratic governor came despite sustained Republican efforts to suppress African-American votes–efforts so transparently and blatantly aimed at (disproportionately Democratic) black voters that a court described them as “surgical.” Several of those measures were struck down, but a number of others–moving polling places, shortening voting hours–had the intended effect.

Even in the face of massive vote suppression, the Democratic gubernatorial candidate somehow won.Hence the special session to strip the new Governor of authority–and the transformation of North Carolina government into an illegitimate putsch.

As the Times editorialized

This legislative power grab is the latest underhanded step by a state Republican Party desperate to stay in power in a state where demographic changes would normally benefit Democrats. Republicans in North Carolina, a presidential battleground state, have used aggressive redistricting and voting suppression measures that are among the most brazen in the nation to win elections. The courts have blocked some of these efforts, but Republicans have found workarounds, for instance, by limiting voting hours and sites.

Calling what is happening in North Carolina a “legislative power grab” is like calling cancer a “minor illness.” It is a shocking violation of democratic norms, and a frontal attack on the rule of law.

It is one more element in America’s current wholesale retreat from the principles that did make America great.

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Beyond the Factory Floor

The other day, I looked into a mirror and suddenly realized that my mother was looking back.

It sneaks up on you.

Most of us don’t notice the day-to-day changes in ourselves, or our environments, unless something triggers that recognition. That is especially true of the inexorable increase in automation–and it matters, because it is automation, far more than trade, that has eliminated so many American jobs. And that automation isn’t limited to spiffy robots on a factory floor; it is all around us.

When I first started to drive, gas station attendants pumped my gas and cleaned my windshield. These days, I pump my own gas, and the windshield gets cleaned when I go through the automated carwash. When I first practiced law, one legal secretary worked for two lawyers at most;  partners in the larger firms usually had their own secretary (and still dictated directly to her as she sat, steno pad in hand). Today, even in the “silk stocking” firms, lawyers type their own letters, emails and documents on their computers. Wealthier families often had maids and cooks; ever-improving home appliances have reduced the jobs available for such domestic help.

Old movies will sometimes feature the banks of telephone operators who used to direct calls, handle switching equipment and place “person to person” long-distance calls. My IPhone doesn’t require those switchboard operators. Speaking of telephones, those ubiquitous “telephone trees” are a decidedly mixed blessing, but most businesses use them rather than the human employees who used to answer the phones.

Remember the rows of bank tellers with eyeshades, who kept account ledgers by hand? Computers have replaced them.

I don’t know how much snail-mail has been replaced by email, but my guess is that we aren’t running short of postal workers.

As we anticipate an era of self-driving cars, we might consider the trade-off to come: greater safety and cost-effectiveness for individuals against eventual loss of employment for literally millions of truck, delivery van, taxi and Uber drivers.

Technological innovations make our lives more satisfying, our work more productive and our daily tasks more efficient–but they also take their toll on the workforce, and not just numerically. It’s true that many of these modern conveniences create new jobs, but rarely in the numbers they replace, and usually requiring a different and more demanding set of skills.

We are going to need some creative policies to deal with the accelerating and inevitable changes in the job market. Retraining–while undoubtedly a critical component–will not address the plight of the high-school dropout who lacks the capacity to learn more demanding skills, or the older displaced worker who cannot cope with radical change.

I don’t know what the answer is, but I do know we will continue to see machines displace human employees, and I’m pretty sure that bribing Carrier to delay moving 700 or so workers to Mexico is neither an answer nor a policy.

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To Russia, With (Trump’s) Love

MarketWatch is a subsidiary of Dow Jones, and a property of News Corp. It operates a financial information website that provides business news, analysis, and stock market data. It is neither a fake news site nor a particularly ideological one (certainly not left-wing–News Corp also owns Fox News), so I was surprised to read a column headlined “Top 10 Signs that American President is a Russian Agent.”

The “signs” the column identified were: (1) U.S. Intelligence has concluded that the Kremlin helped put him in power; (2) the new President sides with the Kremlin against the CIA; (3) He receives vast sums of money from mysterious Russians (Including an astonishing $95 million that Trump personally received from a Russian billionaire during the 2008 collapse); (4) His election made a lot of people in Moscow rich–their stock market is up 20% since the U.S. election; (5) He wants to end Russia’s global isolation and terminate U.S. and international sanctions against Russia; (6) He has surrounded himself with known Russian allies and sympathizers; (7) He repeatedly refuses to criticize the Kremlin; (8) One of his first steps as President-elect was to drive a wedge between the U.S. and China, Russia’s chief Asian rival; (9) He has announced policies that would undermine NATO; and (10) He once had his own brand of vodka.

Okay, that last one is a stretch.

The column gives “chapter and verse” for each of these signs, so those interested in more detail can click through.

My reaction to this seemingly outlandish theory is not altogether dismissive. Two points are worth consideration: first, whether Trump is simply being his clueless self or knowingly acting on behalf of the Kremlin–being blackmailed by the Russian oligarchs who financed several of his projects after American banks stopped doing business with him, perhaps, or otherwise being bribed to do so–is irrelevant. If he were a knowing Russian agent, how would his behavior differ?

Second, MarketWatch’s list of ten signs is missing a huge one. Russia’s economy is heavily dependent upon oil, and Putin’s stranglehold on the Russian people is heavily dependent upon the economy.  The Kremlin is thus threatened by U.S. efforts to address climate change–efforts that diminish reliance upon and use of fossil fuels.  Trump’s cabinet nominees are virtually all anti-science climate change denialists. His energy transition team has already signaled a witch hunt against government scientists working to protect the environment.  

A military friend recently told me that Russia’s conventional armed forces are substandard. Evidently, according to the CIA and the New York Times, they are much better at cyberwarfare. (Slate also has a good overview of the history and tactics of the Russian hackers.)

Wouldn’t it be ironic if Russia subdued us without having to deploy a soldier or fire a shot?

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