federalism – Sheila Kennedy

Federalism And MAGA Lies

I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.

Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.

Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!

Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).

Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.

Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…

The article debunked several aspects of the claim, and noted

This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”

“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”

“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”

By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.

As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.

Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”

In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority. Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

But that step back didn’t merge state and federal justice systems.

Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.

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Let’s Talk About Federalism

Ah, federalism! In the abstract, “laboratories of democracy” and a component of those “checks and balances” the Founders established.

Two hundred plus years later, a mess.

Very few students came into my classes with an understanding of the term or the multiple and often confusing ways in which federalism operates in the 21st Century. (That confusion was clearly shared by the author of a recent Washington Post essay who didn’t seem to understand when state-level prosecutors like Bragg can charge violations of both state and federal laws in a single prosecution. In all fairness, however–as I so often told my students– it depends, and it’s complicated.)

Actually, in addition to gerrymandering, the Electoral College, the filibuster, and the number/ terms of Supreme Court Justices, it’s also past time to revisit and revise the divisions of authority between state and federal governments.

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority. In recent years, however, we seem to have forgotten about the very negative consequences of government fragmentation that prompted the Founders to establish a strong central government.

Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The (belated) application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

The need for substantial national uniformity isn’t confined to civil liberties. Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission; that body developed the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it had to be adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive.

Commerce is hardly the only area where uniformity is desirable and/or necessary. Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks. A lot of people died as a result of Trump’s decision to leave COVID response to the states.

I won’t even address the insanity of leaving gun laws to the states in a country as mobile as the U.S.

Then there’s the environment. ( Air and water don’t stay in Indiana.)

The Indiana Capital Chronicle recently reported on efforts by Indiana lawmakers to give the General Assembly power over decisions that are currently left to state agencies staffed with experts who implement state and federal environmental laws— a move that would put Hoosiers’ health and environment in jeopardy.

A sweeping, 54-page amendment was added last week to the administrative rulemaking bill, which additionally seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.

Indiana’s legislators already believe they know more than doctors; now they think they’re experts in environmental science. Given their consistent subservience to the state’s utilities, passage of this bill would be a huge step backwards.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” .

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to guns, the environment or fundamental rights, not so much…

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First It Was Taney

The New Republic recently published a long but incredibly illuminating essay on the Supreme Court.It deserves to be read in its entirety.

The author, Brynn Tannehill, compared the Roberts Court to past Courts that today are widely considered to have decided important cases wrongly–beginning with the Taney Court. In 1857, that Court decided in Dred Scott that Scott was not a free man, that no Black person could be a citizen of the United States, and that Black people were not entitled to Constitutional protections. As Tannehill says, that decision doomed the country to civil war.

Worse, Taney’s Court effectively eliminated the rights of free states to prohibit slavery on their own territory– relying on the same sort of “originalist” logic used by Justice Alito in Dobbs v. Jackson.

Roger Taney was not the only Chief Justice to preside over a retrograde Supreme Court. Following the Civil War, the Court led by Chief Justice Morrison Waite, “delivered decision after decision that ended Reconstruction.”

In United States v. Reese, the court ruled 7–2 that “racially neutral” voter suppression measures such as poll taxes, literacy tests, and the grandfather clause were constitutional. In United States v. Cruikshank, the Waite court ruled 9–0 that the federal government had no right to arrest the people responsible for the Colfax Massacre, the 1873 Louisiana riot where dozens of Black militiamen were murdered by a white mob. The Waite court also decided unanimously in Minor v. Happersett that women do not have a constitutional right to vote.I

n Elk v. Wilkins, the Waite court ruled 7–2 that being born on U.S. soil did not grant citizenship to Native Americans. The court also upheld miscegenation laws 9–0 in the 1883 case Pace v. Alabama. That same year, a majority struck down the Civil Rights Act of 1875 in The Civil Rights Cases of 1883. Later, in 1896, under Chief Justice Melville Fuller, the Supreme Court enshrined segregation via Plessy v. Ferguson, under the rubric of states’ rights.

Ironically, these decisions were framed as protective of limited government and individual liberty–as Tannehill writes, “freedom in the abstract, but only in the abstract.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Then there’s the Roberts Court.

It struck down most of the Voting Rights Act . It permitted states to strip Native Americans of their right to vote using the pretext of preventing voter fraud. Worst of all, the court recognized that partisan gerrymandering is inconsistent with democracy, but declined to do anything about it.

The Roberts Court also seems intent on eviscerating Jefferson’s wall between church and state. It keeps finding that Christian organizations have a right to government money, as well as a “freedom” to discriminate against LGBTQ people, Jews, and others.

This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

Tannehill reviews several pending cases with potential to upend federalism:

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave?

It’s entirely possible that this Court would follow Dred Scott and allow extradition. If so, officials in the “sanctuary” states would be under heavy pressure to refuse to comply.

At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

You really need to read the entire essay.

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Dangerous Insanity

Climate change denialism has become much more difficult lately, as evidence in the form of heat waves, increasingly strong hurricanes, wildfires and the like continue to grow. And in most countries, as a recent article from the New York Times notes in its opening paragraphs, political fights over efforts to combat global warming are focused on the “how”–not on the immediacy or existential nature of the threat.

But then there’s the good old USA, and the GOP.

The article’s headline is “Weaponizing Public Office Against Climate Action,” and it documents yet another drawback of American federalism–the ability of Republican officeholders in Red States to actually bolster fossil fuel companies at the expense of the climate. It isn’t just in Texas, where we’ve become used to the deranged antics of Gov. Greg Abbott. (Abbott has actually prohibited state agencies from investing in businesses that have cut ties with fossil fuel companies.)

The Times investigation revealed a “coordinated effort by state treasurers to use government muscle and public funds to punish companies trying to reduce greenhouse gases.

Nearly two dozen Republican state treasurers around the country are working to thwart climate action on state and federal levels, fighting regulations that would make clear the economic risks posed by a warming world, lobbying against climate-minded nominees to key federal posts and using the tax dollars they control to punish companies that want to reduce greenhouse gas emissions.

Over the past year, treasurers in nearly half the United States have been coordinating tactics and talking points, meeting in private and cheering each other in public as part of a well-funded campaign to protect the fossil fuel companies that bolster their local economies.

Last week, Riley Moore, the treasurer of West Virginia, announced that several major banks — including Goldman Sachs, JPMorgan and Wells Fargo — would be barred from government contracts with his state because they are reducing their investments in coal, the dirtiest fossil fuel.

This is–rather obviously– insane. It’s as if an immensely wealthy patient diagnosed with terminal cancer were to decree that none of his monies could ever be used for cancer research or for the production of cancer treatments–and should instead be invested in Roundup and other cancer-producing products.

Mr. Moore and the treasurers of Louisiana and Arkansas have pulled more than $700 million out of Ti, the world’s largest investment manager, over objections that the firm is too focused on environmental issues. At the same time, the treasurers of Utah and Idaho are pressuring the private sector to drop climate action and other causes they label as “woke.”

And treasurers from Pennsylvania, Arizona and Oklahoma joined a larger campaign to thwart the nominations of federal regulators who wanted to require that banks, funds and companies disclose the financial risks posed by a warming planet.

Reporters traced these efforts to a little-known nonprofit organization based in Shawnee, Kansas, identifying the State Financial Officers Foundation, an organization that once focused on cybersecurity, as the “nexus” of these actions . Following the election of President Biden, who pledged to make addressing climate change a significant element of his agenda, the Foundation began pushing Republican state treasurers–elected officials responsible for managing their state’s finances–“to use their power to promote oil and gas interests and to stymie Mr. Biden’s climate agenda, records show.”

The Heritage Foundation, the Heartland Institute and the American Petroleum Institute are among the conservative groups with ties to the fossil fuel industry that have been working with the State Financial Officers Foundation and the treasurers to shape their national strategy.

The Times notes that Democratic treasurers in Blue states support efforts to combat climate change; they encourage banks and investment firms to acknowledge the risks that climate change poses to returns for retirees and others. But they haven’t created anything like the national campaign being orchestrated by the State Financial Officers Foundation.

Rational people–a category that rather clearly excludes these Republican treasurers–understand that global warming is already damaging agriculture and causing extreme weather events that devastate communities and cost taxpayers billions in recovery and rebuilding. Instead, they insist that efforts to reduce emissions threaten employment.

These GOP treasurers have turned climate science into yet another issue in the Republicans’ unrelenting and suicidal culture wars.

But here’s the thing: It’s one thing to recognize that the economic health and quality of life in Blue states is superior to that of Red States. Americans can shrug–or move. However, we can’t create environmental silos–the stupidity and/or cupidity of these GOP officeholders affects the future livability of the entire globe.

The GOP proudly asserts that it isn’t “woke.” (We’ve noticed.)

The opposite of wakefulness, of course, is sleep. In this case, it’s a coma…..

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Allow Me To Repeat Myself…

In the wake of the Court’s ruling in Dobbs, several pundits have approved of the decision as a “return to federalism.” Earlier this year, I posted about America’s experience with federalism, and obviously, that analysis bears repeating.

The issue, of course, is “Which rules should be nationally-imposed, and which should be left to more local “laboratories of democracy”? Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. But questions about who is entitled to fundamental human rights–and what those rights are–clearly isn’t one of them.

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the extreme federalism of the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of national fragmentation.

The application of the Bill of Rights to state and local governments was meant to establish a national floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Furthermore, modern technology and communication–and the needs of businesses serving a mobile population–have made uniformity imperative even for matters that were properly left to state and local governments in the 1800s.

As I’ve noted previously, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. (It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature. In that sense, it respected federalism.)

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks. Numerous health officials have addressed the disastrous results of Trump’s decision to leave COVID response to the states. It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms? It is incomprehensible to me that anyone would choose to leave basic civil liberties up to the states–that, after all, was precisely the “federalism” that led to the civil war.

Certainly, America’s division of jurisdiction among local, state and federal levels of government is still useful–state and federal governments really have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, for example– but we need to recognize that many of our historic assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, as we have seen, it’s an invitation to misconduct.

As a practical matter, federal programs have made a mockery of the increasingly awkward pretenses of state “sovereignty” where none really exists. Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the myriad other “strings” attached to federal funding that remind state-level agencies who’s really in charge.

If we ever get serious about actually governing again, we should take a hard look at these divisions of responsibility, and recognize that some matters are genuinely local, some require national action, and still others are planetary and must be addressed globally. Climate change is the most obvious.

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights and global threats, a phony and facile “respect for federalism” is both dishonest and suicidal.

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