Tag Archives: blue states

Soft Secession

I recently came across a lengthy Substack post from The Existential Republic, titled “It’s Time for Americans to Start Talking About ‘Soft Secession.”  It was fascinating–and (assuming the accuracy of the reporting) immensely comforting. If even half of the sub-rosa efforts reportedly underway really are underway, the resistance is far more robust than I had imagined.

Evidently, Blue state leaders have been “war-gaming” a variety of scenarios.

For many state Attorney Generals and Governors, the legal briefs are already drafted. The strategy sessions have been running since December. “We saw this coming, even though we hoped it wouldn’t,” former Oregon Attorney General Ellen Rosenblum told The 19th days after Trump’s inauguration.

This is what American federalism looks like in 2025: Democratic governors holding emergency sessions on encrypted apps, attorneys general filing lawsuits within hours of executive orders, and state legislatures quietly passing laws that amount to nullification of federal mandates. Oregon is stockpiling abortion medication in secret warehouses. Illinois is exploring digital sovereignty. California has $76 billion in reserves and is deciding how to deploy it. Three sources on those daily Zoom calls between Democratic AGs say the same phrase keeps coming up, though nobody wants to say it publicly: soft secession.

Soft, because we aren’t looking at secession Civil War style. This time around–again, according to the post–Blue states are building parallel systems and withholding cooperation. They are creating “facts on the ground that render federal authority meaningless within their borders.”

The infrastructure for this resistance already exists. Twenty-three Democratic attorneys general now gather on near-daily Zoom calls at 8 AM Pacific, which means the East Coast officials are already on their third coffee. They divide responsibilities and share templates for lawsuits they’ve been drafting since last spring.

Yale Law Professor Heather Gerken calls this “uncooperative federalism,” an approach that doesn’t require states to actively resist, merely refuse to help. And as the article points out, without state cooperation, much of the federal government’s agenda becomes unenforceable.

Eight states have already enacted State Voting Rights Acts that exceed federal protections. Twenty-two states have implemented automatic voter registration. Colorado has created what election security experts call the gold standard: risk-limiting audits with paper ballot requirements.

New York Attorney General Letitia James, who successfully sued Trump during his first term, promised she’s “ready to fight back again.” During Trump’s first term, Democratic attorneys general led more than 130 multistate lawsuits against the administration and won 83 percent of them…

Pritzker has his staff exploring how to force Apple and Google to disable location tracking for anyone crossing into Illinois for medical procedures, preventing any digital trail that could be subpoenaed. Multiple governors are studying whether they can legally deny federal agents access to state databases, airports, and even highways for immigration enforcement. The discussions, according to sources, have gone as far as evaluating state authority to close airspace to federal deportation flights. States are creating pharmaceutical stockpiles, climate agreements, immigration policies. The National Popular Vote Interstate Compact has secured 209 electoral votes. The Regional Greenhouse Gas Initiative’s 11 states have reduced emissions by 50% while the federal government rolled back climate regulations. The U.S. Climate Alliance’s 24 governors represent 60% of the American economy.

California doesn’t wait for Washington anymore. Neither does New York. Or Illinois. They’re building functioning governmental systems that operate independently of federal authority.

I strongly encourage you to click through and read the rest of the lengthy post, which has multiple examples of the ways in which “the same constitutional structure that allows red states to ban abortion permits blue states to stockpile abortion pills. The same Tenth Amendment that lets Texas deploy its National Guard to the border prevents Trump from commandeering state police for deportations.”

Of course, as we repeatedly see, constitutional restrictions mean nothing to our Mad King, and our rogue Supreme Court has signaled a willingness to overrule many of the eminently correct decisions of the lower federal courts. Nevertheless, I found the extent of the coordinated activities of America’s Blue states to be immensely hopeful, especially since the majority of Americans live in those states–and since (as the article also documents) the country’s Red states are economically dependant on Blue state taxpayers.

As the post concludes:

The phrase “soft secession” makes Democrats nervous. They prefer “resistance” or “federalism” or any other euphemism that doesn’t acknowledge what’s happening. But when democracy fails, when fair elections become impossible in certain states, when federal funds are withheld as political punishment, states don’t have many options left.

The infrastructure is built. The legal precedents are established. The money is there. Blue states have spent two years sharpening these tools…

As blue states prepare to deny federal agents access to their databases, their highways, maybe even their airspace, the soft secession isn’t coming. It’s here.

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The Big Sort

I have frequently cited a 2009 book by Bill Bishop, titled “The Big Sort.” Bishop pointed to a then-emerging trend of “voting with one’s feet”–the tendency of many Americans to relocate to places that they find philosophically and politically compatible. The consequences of such sorting can be troubling. What happens when most neighbors agree with your outlook and values, reducing the need to accommodate disagreement or defend your woldview?

I read “The Big Sort” when it first came out, but I still ponder many of the issues it raised. One issue that it didn’t raise, however–at least, I don’t recall Bishop paying attention to it–involved “macro” outcomes: what if the sorting led to very different economic and quality-of-life differences between what we’ve come to identify as “Red” and “Blue” parts of the country?

More than a decade after the book, we are seeing major differences emerge. A recent column by Michael Hicks focused directly on that outcome. As he writes,

Of the 20 richest states today, 19 are solidly Democratic. Of the poorest 20 states, 19 are solidly Republican. The GOP dominates in poor, slowly growing states, while the Democrats dominate politics of prosperous, faster-growing states.

Hicks notes that these differences are largely an outcome of the nationalization of our politics. In former times–in fact, up until the late 1990s– there were conservative Democrats and liberal Republicans. But then, state parties began to align with national politics.

Even races for local municipal government tend to be nationalized. State and local issues are often ignored, or barely discussed in primary or general elections. The homogeneity of national politics will naturally cause parties to represent more similar places.

Hicks then echoes Bishop, finding household sorting by politics. “Though most sorting happens at the sub-state level” (presumably, rural and urban) “the nationalization of politics means that state borders now affect household location choice.” Voters are choosing the political landscapes they prefer.

Hicks notes that when he began researching state and local policy some quarter-century ago, state legislators focused more on local issues; now, many take their “legislative marching orders from national think tanks or national parties. Today, elected leaders from both parties are expected to advance similar legislation, typically written by think tanks, everywhere at once.” (That is certainly the case in Indiana, where our dreadful General Assembly obediently does ALEC’s bidding.)

Education, Hicks tells us, is the most consequential policy difference between thriving Blue states and struggling Red states like Indiana.

The most likely cause of divergence between rich and poor places is the fact that human capital — education, innovation and invention — replaced manufacturing and movement of goods as the primary source of prosperity. In other words, places that grow will collect more human capital. However, the educational policies pursued by both parties are vastly different.

The GOP has largely tried to adopt broad school choice, while cutting funding to both K-12 schools and higher education. The Democrats have largely eschewed school choice, but amply fund both K-12 and higher education. Today, 17 of the 20 states with high educational spending are Democratically controlled and 17 out of the 20 lowest funded states are GOP strongholds.

There’s more to education than spending. Still, higher educational spending, even if it means higher tax rates, is leading to enrollment and population growth. Educational attainment differences alone explain about three quarters of the difference in per capita income between states.

At the same time, school choice effects are smaller than almost anyone hoped or expected. Today, it’s clear that the average student in private school underperforms their public school counterparts (charter schools tend to out-perform both). So, if poor states spend less on education and rely more on school choice, they will become poorer than states spending more on public education.

Economists have been saying this for three decades, with little effect. The prognosis is simply that poor states like Indiana are going to get poorer for decades to come while rich states will grow richer.

Here in Indiana, incoming Governor Braun has made expansion of the state’s voucher program a key priority. He wants to make it “universal,” meaning the eradication of income limits. Indiana’s program is already disproportionately used by upper-middle-class parents; Braun’s proposed giveaway would allow participation by even more privileged families (So much for the pious assurances that vouchers would allow poor children to escape “failing” public schools.)

Vouchers don’t improve educational outcomes, and they drain critical resources from the public schools that continue to serve the overwhelming majority of Indiana children.

If Hicks is reading the data correctly–and I believe he is–states like Indiana will continue to decline, and educated citizens will choose to move elsewhere.

Continuing the “sort.”

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Be Careful What You Wish For…Chevron Edition

Among the Supreme Court’s numerous retreats from what had long been considered “settled law” was a ruling that received relatively little publicity. The general public can be forgiven for failing to realize just how startling–and wrongheaded–the Court’s abandonment of something called “Chevron deference” really was, but the legal community certainly understood the decision as a monumental retreat from precedent and respect for expertise–not to mention an unwarranted increase in judicial power.

Chevron deference was shorthand for a judicial doctrine that has been applied for 40 years in over 18,000 decisions to situations where Congress sends ambiguous directions to executive agencies staffed with people who are experts in the particular area. That ambiguity is necessary; Congress isn’t equipped to determine the proper levels of contaminants in water or to identify carcinogenic chemicals–and even if such specifics were passed, they would be incredibly difficult to monitor and update as technical knowledge advances. 

Recognizing that practical reality, Courts have deferred to agency interpretations/clarifications of those ambiguities, recognizing that judges–like Congresspersons– generally lack the specific technical knowledge required.

The required deference could certainly be overcome. If a plaintiff challenging the agency’s interpretations provided evidence that agency interpretations were unreasonable, Courts could–and did–overrule them. Deference simply required the judicial branch to acknowledge–and respect– the existence of specialized subject-matter expertise, and to recognize that the possession of superior legal knowledge does not make the judicial branch all-knowing.

As an article from Pro Publica reported,

That doctrine, known as Chevron deference, was named after the 1984 Supreme Court case in which it emerged, and it offered an answer to a recurring question: What happens when Congress passes a law granting power to a federal agency but fails to precisely define the boundaries of that power?

In such situations, the doctrine of Chevron deference instructed federal judges to rely on the interpretations made by federal agencies, as long as those interpretations were reasonable, since agencies typically have greater expertise in their subject areas than judges. The Loper Bright decision erased that, commanding federal judges to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

Legal scholars condemned the Loper ruling as yet another departure from stare decisis–respect for precedent–and as an unwarranted departure from a reasonable balance between executive and judicial authority. Those intent upon reducing federal authority–and regulations–cheered it.

But it turns out that the Chevron decision might take its place alongside Dobbs, as a judicial overreach that ideologues may regret. (Dobbs was largely responsible for the non-appearance of the anticipated “Red wave” in 2022.)

A recent article from Stateline suggests that the ruling will allow Blue states to more effectively resist Trump Administration policies.

A major U.S. Supreme Court decision this summer was hailed as a conservative court’s broadside against a Democratic administration, giving red states more backing to delay or overturn policies they don’t like, such as transgender protections and clean energy goals.

But the ruling in the Loper Bright case, which granted courts more power to scrutinize federal rules, can go both ways. Experts say it will likely give blue states more leeway to attack any forthcoming policy changes from President-elect Donald Trump — ranging from immigration and the environment to Medicaid and civil rights.

Lawsuits already are being planned in many states. California is holding a special session to set aside money for legal fights, and Connecticut, Massachusetts, Minnesota, New Jersey and New York also are considering legal strategies

Democratic governors in Colorado and Illinois formed a coalition in November to “fortify essential democratic rights nationwide.”

In effect, the ruling opens more federal rules to those court challenges. Blue states now have a new weapon to fight conservative federal rules on issues such as immigration, climate change, abortion access and civil rights….

Most experts see the change as an obstacle to a new Republican administration looking to make sweeping changes but lacking enough support in Congress to pass large-scale legislation. Any proposals restricting access to abortion or attempting to dismantle the Affordable Care Act or Medicaid expansion will be more complicated, said Zachary Baron, a director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute.

Our fractious, gerrymandered Congress hasn’t approved a major immigration or environmental law for decades. That Congressional inability to legislate “has forced both Democratic and Republican administrations to change policy through either executive order or federal regulations that can now be more easily challenged by hostile states in the courts.”

The Loper decision hobbled some of the Biden Administration’s regulatory efforts. The linked article points to a number of ways in which it will also complicate–and prevent–measures threatened by the incoming Trump administration. 

Sauce for the goose……

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The Merits Of Federalism

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.

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Policies Matter

One of the most unfortunate aspects of our current politics is the way tribalism has obscured policy differences. As we head into the 2024 election, few–if any–voters will base their votes on the candidates’ different policy positions. That’s not a criticism of America’s voters. At the top of the ticket, our choice is between a senile megalomaniac whose sole “policy” (if it can be dignified by the term) is hatred of “the Other” and an opponent whose sanity and competence outweighs other considerations.

This won’t be a Presidential election where thoughtful policy differences drive votes, and that’s frustrating for those of us who are policy nerds.

The situation is somewhat different at the state level, however. America’s states have settled into Red/Blue tribal divisions that may or may not hold. For those of us who follow policy preferences and their outcomes, those Red and Blue states provide a rather striking natural experiment, and Blue state policies have emerged as clearly superior.

For example, The American Prospect recently ran an article comparing Oklahoma–a very Red state–with Blue Connecticut.

In Oklahoma, nearly a quarter of children live in food-insecure households, one of the highest rates in the country. The Annie E. Casey Foundation’s KIDS COUNT, its annual compilation of child well-being data, ranked Oklahoma 46th in the nation overall—as well as 49th in education and 45th in health.

Yet Oklahoma’s Republican Gov. Kevin Stitt rejected the roughly $48 million of funding for the 2024 Summer EBT program and announced in August the state would also not participate in the program next summer. Oklahoma was one of 13 Republican-led states that declined this year’s summer grocery benefit. “Oklahomans don’t look to the government for answers, we look to our communities,” a spokesperson for the governor said in a statement regarding the decision to decline the funding, which they referred to as a “handout.”

Halfway across the country, KIDS COUNT ranked Connecticut 8th overall, 3rd in education, and 11th in health. But the state, which also participated in Summer EBT this year, faces a hunger problem as well—more than 15 percent of children live in food-insecure households. In fact, Connecticut was one of the first states in the country to pilot its own program in 2011.

The article noted numerous other differences attributable to policy choices. Life expectancy in the two states had been roughly equal in 1959; today, folks in Connecticut live 4 years longer on average than those in Oklahoma. Oklahoma–with Wild West gun laws similar to those in Indiana– had the 13th-worst rate of gun violence in the U.S., while Connecticut had the 45th-worst rate.

Research shows that, as political parties nationalized, state governments followed the governing party’s ideology. Differences in outcomes followed.

State government, after all, plunges into the day-to-day minutiae of our lives through decisions about health, education, social services, criminal justice, and more. For example, families in some states get money to keep their kids fed during the summer; in other states, they don’t. 

The lengthy article illustrates the multiple ways in which these ideologically-driven policy differences affect both individual citizens and economic performance in the state. It’s well worth a read. 

Another article–this one from the American Prospect—focuses on educational vouchers, a policy choice I frequently discuss. The article warns that Red state expansion of universal school vouchers is likely to have profound impact on the lives of young people.

As states race to pay for families to send their kids to private schools, blowing up state budgets in the process, the schools attended by the vast majority of kids will be left with far fewer resources, blunting their prospects. By design, funds are being shifted away from students in poor and rural areas and into the pockets of affluent parents, entrenching inequality in the process.

Among the other detriments of these programs is an almost-total lack of oversight. In Arizona, for example, parents are allowed to direct education funds, not just to the school of their choice, but to anything they might call “education.”

As Arizona’s superintendent of public instruction Tom Horne, a loud proponent of vouchers, admitted in an interview, the state’s emphatically hands-off approach means that there’s nothing to prevent parents from using public dollars to teach their kids that the Earth is flat. Indeed, state law prohibits any kind of public oversight over the burgeoning nonpublic sector of private schools, homeschooling, and microschools, which are for-profit ventures in which small groups of students learn online while being monitored by a guide.

If, as economists insist, economic development depends upon the existence of a well-educated workforce, vouchers don’t just shortchange the children in sub-par private schools. They eventually impoverish the state.

Policies matter.

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