Tag Archives: federalism

Never Thought I’d Cheer States’ Rights…

It has been somewhat lost among all his other bluster, and more recently by the diversion of his air strike against Syria, but Trump has reiterated his threat to withhold federal monies from so-called “Sanctuary” cities and states. (As many people have pointed out, the sudden onset of humanitarianism that purportedly prompted those airstrikes has yet to prompt a willingness to accept children fleeing the hellhole that is today’s Syria.)

Trump’s threats are evidently as empty as his compassion. Talking Points Memo reports that, thanks to a Supreme Court decision in a lawsuit brought by Republicans opposed to the ACA, Trump can’t withhold funds from states acting humanely. It would be illegal.

File under “be careful what you wish for”….

In 2012, the Supreme Court forced the Obama administration to make Medicaid expansion voluntary for states instead of mandatory, ruling that when the federal government “threatens to terminate other significant independent grants as a means of pressuring the States to accept” a federal policy, it is unconstitutionally coercive.

Conservative groups that celebrated this victory over “infringement on state sovereignty by the federal government” may now be dismayed to learn that it could throw a wrench into the Trump administration’s current plan to punish sanctuary cities.

Attorney General Jeff Sessions recently warned local officials that continued refusal to co-operate with federal immigration authorities would jeopardize approximately $4 billion dollars in unrelated grants; those grants currently support local programs addressing everything from human trafficking, sexual assault, and gang violence to mental health, gun crimes and various public safety issues.

Sessions evidently neglected to research the Administration’s authority to follow through on that threat.

Stripping the cities and counties of this funding, however, is easier said than done. Doing so could violate the 10th Amendment, which protects states’ rights against federal intrusion, and a number of Supreme Court cases, including the 2012 case that struck down Obamacare’s mandatory Medicaid expansion, legal experts warn.

“It may be unconstitutional on several grounds,” said George Washington University Law School professor John Banzhaf III.

Banzhaf argues that U.S. law dating back to the mid-1800s bars the government from “commandeering” local officials to enforce federal law in almost all instances. The 2012 Supreme Court ruling in National Federation of Independent Businesses v. Sebelius expanded on this principle, holding that “states could not be required to expand Medicaid programs under threat of a loss of federal funds—the same coercive method threatened by Sessions—except where the threat was one mandated by Congress and signed into law, not a mere presidential order,” Banzhaf said.

Two other cases–one in 1987 and one from 1997–reinforce the limits on federal coercive power.

In the 1987 decision South Dakota v. Dole — which concerned a government attempt to cut highway funding to states that tried to lower the federal drinking age — the Court said the federal government can only cut grants related to the policy they are trying to enforce. Though the federal government’s argument trumped the state’s in that case, the ruling significantly narrowed the kind of funding the federal government can withhold when attempting to incentivize local governments to carry out a certain policy….

The Court went even further in 1997, ruling in Printz v. United States that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”

Sessions has now indicated that future grants will be conditioned upon compliance with federal immigration law, a tacit admission that– his threats notwithstanding–he cannot reach previous awards issued without such provisions.

I’m sure those staunch defenders of states’ rights–the ones who were so sincere when they explained that their opposition to civil rights laws had nothing to do with racial animus–will applaud this current application of federalism doctrine.

On the other hand, perhaps I shouldn’t hold my breath waiting for their applause….

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A Timely Reminder

The most recent issue of the Harvard Law and Policy review was devoted to analyses of the “State of the States: Laboratories of Democracy.” The introductory essay, by Joel Rogers, made an important point that is all too often obscured by our focus on national issues, personalities and campaigns: the federal government really doesn’t run the country.

The federal government controls many public functions, some of them uniquely: macroeconomic policy and interstate commerce, the currency and its value, war and foreign policy. But on nearly everything else that government touches, state and local government play a far greater and more active role. Our national government is essentially a big insurance company, debtor, and gigantic military. Takeaway non-discretionary income transfers, debt service, and national defense, and its 2014 spending was only 0.7% of GDP, its total investment and consumption was only $472 billion, its total non-defense civilian employment was only 1.3 million. By comparison, in that same year, state and local governments spent 10.3% of GDP, did $1.9 trillion of investment and consumption, and employed 14.3 million people respectively, fifteen, four, and eleven times as much as the federal government.

Furthermore, he points out that the areas of our common lives that are subject to local control tend to be areas that are pretty important to most citizens.

That includes, inter alia, the quality of their public schools (where state and local governments not only provide ninety percent of funding, but also control what and who is taught, by whom, and how); environment (through state and local government control of energy use, transportation, most water, and waste disposal); neighborhoods (through their control of land use, zoning, housing, parks and other public spaces, police, and emergency response); and our democracy (through their control of voting rights, campaign and election administration, and decennial redis-
tricting). The power of the federal government is distant, and slight, com-
pared to this.

Take a close look at the list of decisions made by state and local government units, and then consider which candidates and/or parties are most likely to perform those tasks competently and in the public interest.

Here in Indiana, at the state level, the Pence administration has a truly deplorable record on education (what some have characterized as a “war” on public schools). It has fought environmental regulations to the point of suing to avoid compliance. And the Indiana legislature has an equally deplorable record, especially when it comes to democracy: not just redistricting, which has allowed legislators to choose their voters, rather than the other way around, but refusing to extend voting hours  or to consider other measures to encourage, rather than discourage, voting.

We need to remember the importance of our “down-ticket” choices when we go to the polls in November. Donald Trump may pose a more existential threat, but that’s no excuse for failing to appreciate the importance of offices closer to home.
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Ah..Those Laboratories of Democracy…

When I introduce students to America’s constitutional architecture, I sometimes begin by asking them to define federalism. Judging from the blank stares and efforts to avoid being called on, I think it’s fair to say that our federalist system is not widely understood.

That’s too bad, because one of the policy debates we should be having–but aren’t–is how such a system should operate in a time when transportation and communication technologies have changed the way we view state lines. What sorts of rules and policies need to be national in scope, and which are best left to state and local government?

However we answer that question, one important role that states will undoubtedly continue to play is in the development of new approaches to governing.

Justice Louis Brandeis famously referred to the states as “laboratories of democracy;” the idea was that state governments would try new ideas and programs, acting as “pilot projects,” that would allow the rest of the country to evaluate the merits of those approaches before adopting them.

Inevitably, some will be cautionary tales, and pre-eminent in that category is Kansas or, as Charles Pierce calls it,

the failed state of Kansas, now in the fifth year of the Brownbackian Dark Ages, as such things are reckoned. Somehow, the fact that Kansas’ status as a supply-side lab rat has dropped the state down a political garbage chute the likes of which hasn’t been seen since they shredded the Articles of Confederation is beginning to seep under the guardhouses of the gated communities. The head of a healthcare company is fleeing to the Missouri border and he’s not shy about telling the world why.

The blistering indictment of Brownback’s Kansas by that company’s CEO is illuminating; noting that Kansas has become a test center of “trickle down” economics, he pointed out that those policies have led to a “dramatic failure of government.”

Brownback implemented unprecedented tax cuts in 2012. The largest cuts were in the highest tax brackets, and Brownback promised that they would provide a “shot of adrenaline” for the Kansas economy. They actually had the opposite effect, with Kansas lagging neighboring states in job growth and missing revenue targets in 11 of the past 12 months. In the face of ever-deeper debt and another round of degraded bond ratings, Brownback has asked his citizens to pray and fast to solve the budget crisis.

That should turn things around. Not.

It is tempting to look at the hot mess that is Kansas and feel better about Indiana. And granted, our fiscal problems–while substantial– are less severe. But our Governor has  generated his own cautionary tales.

Take, for just one example, his attack on public education and his fervent support of school vouchers. Indiana now has the largest voucher program in the country–and some of the most consistently under-resourced public schools. The public justification for expanding the voucher program is that allowing parents to choose private schools will improve education, at least as measured by test scores. (Given the percentage of families using those vouchers at religious schools, however, it is likely that the Governor’s preference for church over state– his consistent effort to bolster religious institutions and practices– is implicated.)

So how has Indiana’s “laboratory experiment” been working out? Not so well.

Recent research on statewide voucher programs in Louisiana and Indiana has found that public school students that received vouchers to attend private schools subsequently scored lower on reading and math tests compared to similar students that remained in public schools. The magnitudes of the negative impacts were large. These studies used rigorous research designs that allow for strong causal conclusions. And they showed that the results were not explained by the particular tests that were used or the possibility that students receiving vouchers transferred out of above-average public schools.

Perhaps Governor Pence can call for a day of prayer and fasting to raise the test scores of those voucher students. In the meantime, other states can be grateful for a federalist system that lets them learn from–and avoid– others’ disasters.

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States’ Rights. And Wrongs.

David Schultz is an academic colleague of mine, a Professor at Hamline University, who recently used his blog to raise an issue that is all too often ignored: the current operation of federalism.

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

As David points out, we usually see staunch defenses of “state’s rights” as Republican-speak for “we have the right to ignore parts of the constitution we don’t like.” State’s rights understood in that way have a sordid history. Theoretically, such local control would strengthen grass-roots democracy; in reality, the agenda of many of the champions of the “New Federalism” was to use states rights to weaken the national government and undo what they labeled “the liberal agenda.”

Did empowering the states allow North Carolina and Mississippi to enact anti-LGBT legislation? Did it lead to Indiana’s embarrassing anti-choice bill? Sure. But there are very few single-edged swords.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutionalize a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law….

But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to toe the policy line.  Doubtful this is what states’ rights advocates envisioned.

Our current understanding of federalism invites its invocation for less than noble reasons, and ultimately, that’s not good news for anyone, conservative or liberal. As David points out,

What if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can as easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.

America is already far too fragmented. To the extent that federalism a/k/a “states rights” empowers both those who want to opt out of today’s America and those who want to marginalize the “opt-outers,” it may be time to rethink what “e pluribus unum” ought to look like.
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Federalism & Hypocrisy

I see that Indiana Attorney General Greg Zoeller has filed a “friend of the court” brief, urging the First Circuit Court of Appeals to overturn a lower court decision invalidating the “Defense of Marriage Act.” The court held that marriage is a state issue over which the federal legislature lacks authority.

I would have expected Attorney General Zoeller to applaud that ruling—after all, he has argued strenuously against federal authority in a number of other situations. He has even insisted that the federal government lacks authority to interfere with state decisions about Medicare—a federal program. Apparently, it’s okay for the feds to dictate state policies when he agrees with those dictates.

Can we spell hypocrisy?

It isn’t as if there is imminent danger of same-sex marriages being recognized in Indiana. Our appellate court has ruled that there is no state constitutional right to such marriages, and Indiana law has its own “defense of marriage” provision which was unaffected by the ruling.

Of course, the absolute absence of gay marriage in Indiana hasn’t kept the current legislature from reviving a proposed state constitutional amendment explicitly banning same-sex marriage along with anything “substantially similar” (whatever that means). This looks a lot like Oklahoma’s effort to prevent its courts from applying Sharia law—something exactly none of them were doing. Oklahoma lawmakers wanted to signal their hostility to Muslims, and these Indiana lawmakers want to signal their hostility to gays.

The truth of the matter is that the only way Indiana will ever get same-sex marriage is if the United States Supreme Court rules that the U.S. Constitution requires it—and if that happens, a state constitutional provision won’t be enforceable anyway. So reasonable people might wonder why our lawmakers are spending their time on nonexistent issues when we have so many real problems to address.

Continued tilting at this imaginary windmill wouldn’t much matter if it weren’t for the collateral damage the amendment would cause.

Indiana has been trying to recruit and grow high-tech employers—companies that are among the most gay-friendly, and that have significant numbers of gay employees. Passing an anti-gay constitutional amendment won’t exactly promote these economic development efforts.  There’s also a concern that writing discrimination into the constitution—the first time a constitutional provision would be used to deny civil rights rather than expand them—sets a dangerous precedent.  And far from “protecting” families, this measure’s vague language would make life more difficult for gay Hoosier families without in any way assisting heterosexual ones.

Efforts to improve the economy, grow jobs, streamline government and improve public education would actually help Hoosier families. But I suppose it is easier to pander to anti-gay sentiment than it is to improve life for all Indiana citizens.

On an unrelated note: This is my last column for the Indianapolis Star. I have deeply appreciated the comments and emails from readers over the years—pro and con—and invite those who wish to continue the conversation to do so at www.sheilakennedy.net.

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