Tag Archives: federalism

A Follow-Up

Yesterday’s post was about Gavin Newsom’s challenge to Washington, and what it might mean for federalism, and for the divisions–both philosophical and partisan–between the more thinly-populated Red states (most of which are also “taker” states) and more urbanized Blue states (mostly “donors.”)

The Guardian also addressed the federalism issue, albeit from a different angle.The Guardian looked at the effect of Trump’s ego and behavior, focusing especially on Trump’s clear resentment of Puerto Rico after its hurricane, and–in the midst of the pandemic–his unmistakable message that he would be more likely to send needed medical supplies to states whose governors treated him “with appreciation.”

Clashes between presidents and states are nothing new. But according to government theorists, public affairs experts and political analysts, Trump’s rattling of the federalist compact, by which the 50 states are both autonomous and bound in a national union, is unprecedented in modern times.

“You’ve redefined the role of state governors,” said David Super, a professor at Georgetown Law. “Governors must grovel to the president. Governor [Gavin] Newsom [of California], Governor Andrew Cuomo [of New York] have understood that, and they’re doing it. Governor [Gretchen] Whitmer has largely refused, and Michigan is going through hell as a result.

“These governors are more like provincial chiefs under this system, and if we want to restore federalism in this country we will have to make some very dramatic changes after this is over. If we don’t, federalism is dead.”

Super calls the White House approach to the nation’s governors “flippant federalism.” And along with many other observers, he conveyed shock and concern over reports that the federal government is intercepting ventilators and other equipment ordered and paid for by the states, which Trump appears to be handing out on a political patronage basis.

“On the one hand, they’re telling the states they’re on their own,” said Super. “On the other, they’re seizing the supplies that the states get on their own.”

Martin O’Malley, a former governor of Maryland has called the administration’s approach “Darwinian federalism.”

“His [Trump’s] behavior is not in keeping with the office of president,” O’Malley told the Guardian in an email. “The notion that governors have to bow down and praise him in order for their citizens to receive federal disaster assistance is contrary to the very nature of a republic.”

In the wake of this pandemic, what happens to federalism, to democracy, to government legitimacy, to partisan polarization, the social safety net– are all open questions.

Every newscast, every performance, practically every Facebook post ends with “We’ll get through this– together.” I hope that’s true, but  I’m not so sure.

One thing I am sure of, however, and that is the importance of trust in a society’s institutions, based upon a belief that those institutions and structures are fair. Right now, Americans don’t have that belief and that trust.

Much as I detest Donald Trump and the know-nothings and predatory bigots he’s assembled, he’s not the cause of the multiple failures of governance we’re experiencing. He’s the pathetic result of years of civic apathy.

Our national motto was not originally “In God We Trust.” It was e pluribus unum–out of the many, one. The existential question we face is whether we can breathe new life into that motto–if we can use this horrible time to recommit ourselves to the values that once did make this country exceptional (although probably not in the way the nationalists believe).

Federalism isn’t the only institution we have to repair.

Comments

A New Nation-State

Apologies for yesterday’s accidental post-that-wasn’t. I clearly don’t do stir-crazy very well….

_________________________

Should the GOP manage to manipulate–rig– the 2020 election and somehow re-elect Trump–maybe I won’t have to move into my son’s house in Amsterdam, or go to Canada, which have been my choices so far.

Maybe I can just move to California. which Governor Gavin Newsom has begun referring to  as a “Nation-State.”

California this week declared its independence from the federal government’s feeble efforts to fight Covid-19 — and perhaps from a bit more. The consequences for the fight against the pandemic are almost certainly positive. The implications for the brewing civil war between Trumpism and America’s budding 21st-century majority, embodied by California’s multiracial liberal electorate, are less clear.

 Speaking on MSNBC, Governor Gavin Newsom said that he would use the bulk purchasing power of California “as a nation-state” to acquire the hospital supplies that the federal government has failed to provide. If all goes according to plan, Newsom said, California might even “export some of those supplies to states in need.”

 “Nation-state.” “Export.”

(Newsom’s “Nation-State” differs from what Mike Bloomberg and others have referred to as “the rise of City-States” in response to climate change.)

In what the quoted article calls “civil war by other means,” Newsom is sending a message, not to Trump (who lacks the intellect to decode communications in any event), but to both political parties.

The GOP has been waging war on democratic values, institutions and laws for a number of years. The Democrats have been playing defense (and arguably not very well).

The GOP’s politicization of the Supreme Court most recently led to the unconscionable ruling requiring Wisconsin voters to risk their lives in order to cast a vote. Despite the fact that Wisconsin voters took that risk, that should have been a wake-up call.

Perhaps it was.

It’s clearly past time for Democrats to go on the offensive. Newsom is Governor of the nation’s largest state; he’s in a position to put Republicans on notice. California’s  taxpayers account for 15% of individual contributions to the U.S. Treasury, and the article suggests the state is is “now toning up at muscle beach.”

Democratic state Senator Scott Wiener, a leader in California’s cumbersome efforts to produce more housing, said soon after Newsom took office in 2019 that reorienting the state’s relationship to Washington is a necessity, not a choice.

“The federal government is no longer a reliable partner in delivering health care, in supporting immigrants, supporting LGBT people, in protecting the environment, so we need to forge our own path,” Wiener said. “We can do everything in our power to protect our state, but we need a reliable federal partner. And right now we don’t have that.”

And that quote  was from before the federal government’s multiple failures to respond adequately to the pandemic.

Federalism has a number of virtues; as we saw in the 50s and 60s, however, “state’s rights” can also facilitate gross injustices. Its current operation is among the many governing structures we need to rethink and reorient–but that reorientation, along with all the other institutional “fixes” we need–will have to await the installation of a competent federal administration.

Meanwhile, states like California are increasingly at odds with the Republican playbook: California is a sanctuary state while Trump’s GOP is demonizing immigrants; its approach to marijuana is much more permissive than that of the feds; its position on guns is diametrically opposed to that of an administration co-opted by the NRA.  Etc. Now, Trump’s dangerous mismanagement of pandemic response has essentially left California and other states to manage on their own.

One conflict, however, encompasses all others, and could galvanize Californians into new ways of thinking about their state and its relationship to Washington. The GOP war on democracy is inspired by a drive for racial and cultural supremacy that jeopardizes the democratic aspirations and human rights of California’s multiracial citizenry.

It isn’t only California. The majority of citizens in our diverse nation live in urban areas and urbanized states, while the White Supremacy Party–aka GOP–is increasingly a rural phenomenon. The states with a majority of the country’s population are under-represented in the Senate; their citizens’ votes are minimized by the Electoral College and gerrymandering.  There’s no reason to believe that these continuing inequities of minority rule won’t trigger a counterattack–and good reason to believe they will.

As the editorial concludes:

John C. Calhoun, who used the theory of states’ rights to defend the institution of slavery, is not generally a philosophical lodestar for liberal Democrats such as Newsom. But if Republicans (or foreign friends) succeed in sabotaging democracy in November, Calhoun’s theory of nullification, which posited that states have the power to defy federal law, could be ripe for a comeback on the left coast. With the heirs of the Confederacy now reigning in Washington, turnabout might be very fair play.

Comments

The Hidden Hand

When I hear the term “hidden hand,”  I immediately think of Adam Smith. But a couple of weeks ago, I came across a very different definition of that term–one that resonated with me.

Published by a think-tank called “Support Democracy,”the article addressed the growing problem of pre-emption, which it dubbed “the hidden hand.” In Indiana, we’ve had that problem as long as I can remember; it’s what I fulminate about when I decry local government’s lack of home rule.

Many of America’s cities, towns, and counties have less power than they did at the start of the year to protect the health and safety of their communities or to respond to the unique needs and values of their residents. That’s because between January and June 2019, state legislatures across the nation continued a troubling trend of passing more laws forbidding or “preempting” local control over a large and growing set of public health, economic, environmental, and social justice policy solutions. This legislative session, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.

Some states this session went further, with bills aimed at abolishing core powers long held by cities, including their ability to negotiate and set employment terms with their own contractors, enact and implement local land use laws, and control their own budgets and finances.

Here in Indiana, local jurisdictions have long been under the thumb of state lawmakers. The same legislators who bitch and moan about “unfunded mandates” imposed on state governments by Washington blithely operate on the assumption that they know better than the folks running city and county jurisdictions how those officials should do their jobs.

Are there issues that require federal mandates? Sure. Are there issues that ought to be handled consistently statewide? Of course. But the policy debate should center on what those issues are–and it rarely if ever does. Instead, we have the Indiana General Assembly deciding what vehicles Indianapolis can include in our locally-funded mass transit plans (no light rail for us–why, no one can explain).

It’s bad enough that a former Governor whose political savvy outstripped his devotion to rational policymaking (yes, Mitch, I’m looking at you) shoehorned a tax cap into the state constitution. That certainly made him popular. It has also destroyed the ability of local governments to provide appropriate levels of basic services. (Not to mention that provisions of this sort don’t belong in constitutions, which are by definition frameworks prescribing how issues like taxation are to be dealt with.)

State and local governments desperately need to revisit the allocation of power between them. In states like Indiana, state-level lawmakers need to allow local governments to make the decisions that are properly local.

As the report at the link explains,

Preemption is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption was used to ensure uniform state regulation or protect against conflicts between local governments. Preemption has also been used to advance well-being and equity. State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law. Traditional preemption emphasized balance between the state and local levels of government. While state policy still had primacy, according to Columbia Law School professor Richard Briffault, it was understood that “state policies could coexist with local additions or variations.”This is not what we are seeing now.

“New Preemption” laws, according to Briffault, “clearly, intentionally, extensively, and at times punitively, bar local efforts to address a host of local problems.” Some of this is propelled by a disdain for local lawmaking and urban lawmakers seen as too liberal, intent on “oppressing” the free market and “trampling” on individual liberty…. Another primary driver of new preemption is the opportunity conservatives now have to deliver on a long-promised anti-regulatory agenda – an agenda that disproportionately and negatively affects women, people of color and low income communities. These new preemption laws are being used to prohibit local regulations without adopting new state standards in their place, effectively preventing any regulation or policy remedy at all.The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy often driven by trade associations and corporate interests. Much of this effort has been orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization made up by lobbyists and a quarter of all state lawmakers that writes and distributes model bills.

In my most recent book (which I shamefully keep hyping) I make a case for revisiting federalism, and ensuring that control of issues is lodged with the appropriate level of government.

I doubt I’ll live long enough to see that happen…..

Comments

Meanwhile, Under The Radar….

One of the problems with political discourse grows out of specialization–as the world around us gets more and more complicated, people who are experts in different fields, who use different vocabularies and operate from within different conceptual frameworks have trouble communicating with each other and with the public.

This “silo-ing” can be frustrating, and it’s made worse by the unnecessary use of jargon. But a lot of it is inevitable. I can’t follow the more detailed statistical analyses of my economics colleagues, or the computations that support climate science, or the medical terminology my doctor uses.

Similarly, very few Americans follow legal matters that are more complex than an episode of “Law and Order.” That’s why a case currently pending before the Supreme Court has gotten very little attention, despite its potential consequences. The case is Gamble v. United States.

To its credit, The Atlantic had an article explaining the issue, and those consequences.

Gamble addresses a fairly arcane area of constitutional jurisprudence:  the dual-sovereignty doctrine. That’s a 150-year-old exception to the Fifth Amendment’s prohibition of double-jeopardy. In plain English, the doctrine allows state and federal courts to prosecute the same person for the same criminal offense.

And why, you are asking yourselves, should you give a rat’s patootie about that?

Within the context of the Mueller probe, legal observers have seen the dual-sovereignty doctrine as a check on President Donald Trump’s power: It could discourage him from trying to shut down the Mueller investigation or pardon anyone caught up in the probe, because the pardon wouldn’t be applied to state charges. Under settled law, if Trump were to pardon his former campaign chairman Paul Manafort, for example—he was convicted last month in federal court on eight counts of tax and bank fraud—both New York and Virginia state prosecutors could still charge him for any crimes that violated their respective laws. (Both states have a double-jeopardy law that bars secondary state prosecutions for committing “the same act,” but there are important exceptions, as the Fordham University School of Law professor Jed Shugerman has noted.)

If the dual-sovereignty doctrine were to be tossed, then Trump’s pardon could theoretically protect Manafort from state action.

Senator Orrin Hatch has submitted a brief in the case, arguing that the doctrine should be invalidated, although he claims the Mueller investigation has nothing to do with it. (Pardon me while I snicker….)

Here’s the analysis: If Trump shuts down the Russia investigation, Mueller  could “farm out” cases to state-level attorneys general. Those AGs can’t be shut down by Trump and they can, within some limits, charge people with state crimes, even after those people have received a federal pardon. If the dual-sovereignty doctrine is invalidated, however, a federal pardon would essentially block a subsequent state-level prosecution.

The original issues in the case had nothing to do with the Russia investigation; it began as a relatively arcane argument about how federalism should work. And Paul Rosenzweig, a senior fellow at the conservative R Street Institute thinks it may not have the effect that Orrin Hatch evidently thinks it will.

Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.

If that Constitutional language is interpreted that way. But it probably won’t be, if Brett Kavanaugh–or someone like him– is on the Court.

That’s one example of why judicial philosophy–and appointments to the Court– matter a lot more than many people think.

Comments

The Devil’s In The Details

We used to call this federalism.

I really do respect the research done by the Brookings Institution. Overall, I find their methodologies appropriate and their conclusions sound. But every once in a while, I see an “essay” that makes me wonder what the authors have been smoking. The linked article on “constitutional localism” falls into that category.

Specifically, we call for a new civic ethos or governing framework which we call Constitutional Localism, that will shift the greatest number of public decisions possible to the community level—albeit within a clear constitutional framework to protect the individual freedoms and rights won over the past 250 years.

We see the pursuit by Americans of varied lifestyles and cultural preferences as a healthy sign of American freedom and choice, not a destructive force. We need to rebuild public confidence in American democracy, not by insisting on a singular national answer to each problem, but by celebrating the ability of America’s varied communities to find solutions that work best for them. As we see it, the challenge confronting the nation is to find a way to permit this range of opinion and action to flourish while restoring a shared faith in the common democratic values and processes that define American self-government.

Where to start?

First of all–and most obvious–the framework they suggest is the legal framework we have–a significant, albeit diminishing, degree of state autonomy, constrained by the requirement that local laws not violate the Bill of Rights.

The fact that “localism” often doesn’t look very local is a function of 21st Century reality: the inter-related needs of national (and increasingly global) commerce; the ease with which citizens and criminals can cross state lines, the national nature of many threats we face–from medical epidemics to terrorist attacks to acid rain. Etc.

The challenge is to determine what sorts of rules are properly the purview of local lawmakers, and which need to be national in scope. Americans have engaged in arguments about this since the Articles of Confederation. In my state, Indiana, municipalities face the same issue–a longstanding debate about the state legislature’s refusal to allow meaningful home rule by cities and towns.

People of good will can–and will–argue about what political scientists call “devolution,” and what partisans dub “state’s rights.” Which rules should be left to the locals, and which must be made nationally or even globally? To what extent should citizens think of themselves as part of the broad American fabric, and to what extent members of various sub-constituencies? How much consistency is needed to create unum from our pluribus, and how much is too much?

There is a modern twist to this age-old debate, and it is disquieting.

I have blogged previously about The Big Sort and the growing urban/rural divide. Americans appear to be “sorting” ourselves into like-minded communities, geographical “bubbles” where we can live with people who think and act like us. It is part of the polarization that has kept government from working toward that elusive something called “the common good.” Do we really want to encourage cities to create various iterations of “people’s republics” while more rural areas establish enclaves ruled by “Christian Talibans”?

At what point does autonomy become separatism? Inquiring minds want to know…

Comments