Tag Archives: states rights

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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States’ Rights and Wrongs

Indiana’s embarrassing Governor recently appealed a federal court ruling that he lacked authority to prevent resettlement of Syrian refugees in Indiana. From all reports, the appeal’s oral argument did not go well for the state.

A major reason for Pence’s loss in the District Court–and his probable loss at the appellate level–is that immigration is a federal issue over which states lack authority.

The notion that federal law should govern areas of national concern seems to rankle Donald Trump’s chosen running mate, and his annoyance isn’t limited to matters of immigration. In comments defending North Carolina’s discriminatory bathroom law, Pence recently insisted that the states “and the people” should be able to decide who gets rights.

The reason the 14th Amendment applied the Bill of Rights to the states was to ensure that a majority of people in a state could not use their local government to deprive their fellow citizens of the fundamental rights all Americans should enjoy.

There are areas in which the debate over local versus federal control are legitimate, but In the context of civil rights and civil liberties, “state’s rights” was and is a dog whistle meaning: we should get to pick on disfavored people if we want to, and the federal government shouldn’t be able to interfere.”State’s rights” was the (flimsy) cover used by defenders of segregation and Jim Crow.

What if we were to take that states’ rights “logic” to its ultimate conclusion?

What if the federal government couldn’t make states treat women or African-Americans equally? If I’m a woman living in, say, New York, and New York does choose to protect me, do I take a risk driving through, say, Alabama or Indiana, states that don’t protect women’s equality? If I am an African-American supplier doing business with national companies, do I hire a lawyer to tell me which states I can enter to visit with my customers, confident that I can find a hotel room or a restaurant that will serve me?

Shouldn’t Americans expect their fundamental rights to be respected in all of the states of the union?

There are certainly areas of the law that are local in nature. It would be nonsense to have a national zoning law. Certain criminal statutes are better enforced at the state or local level.  There are others. But in a country where people move freely and frequently, where commerce and transportation and communication are national, the notion that states should be able to legislate different levels of basic citizen rights is not just impractical and unworkable, not just unfair and inequitable–it’s profoundly  stupid.

Of course, for people who want to normalize discriminatory behaviors–what Hillary Clinton quite accurately called deplorable behaviors–the notion that the Supremacy Clause and/or the Bill of Rights might legally prevent them from doing so evidently pisses them off.

Pence refused to call even David Duke “deplorable.” I for one am pretty happy that my right to equal treatment under the law isn’t his or the Indiana General Assembly’s to decide.

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State’s Rights and Wrongs

“States’ Rights” are back.

The last time a significant number of states resisted federal edicts was during the 50’s and 60’s, when they were fighting desegregation and insisting  that the big, bad federal government couldn’t tell them that “equal protection of the laws” meant giving actual equal rights to black people.

This time around, “states’ rights” has a new name: nullification. But it’s really the same old song; indeed, both the words and the music are all too familiar.

Nullification is the theory that states have the right to reject federal law. It is a discredited theory that ignores pesky constitutional details like the supremacy clause, not to mention the last hundred years or so of constitutional jurisprudence.

Ostensibly, what set off the current political tantrum was the Affordable Care Act, aka health care reform. Like a two-year-old screaming “you can’t make me!” to his mother, legislatures in several states are in the process of declaring that the federal government can’t force them to comply. (Those legislative shrieks of defiance are likely to have precisely the same effect as the shrieks of the two-year-old—which is to say, none. Mothers and the federal government will always have the last word.)

The real question raised by current efforts at nullification is: why? What is so terrifying, or awful, about reforming the health-care system so that 50 million uninsured Americans will have access to at least a minimum level of care? What is so totalitarian/Socialist/Nazi-ish about telling health insurers that they can’t deny you coverage you paid for simply because you got sick? I understand differences of opinion about the particulars of the reform—I would have preferred a different approach myself—but policy disputes don’t spawn the sort of hysteria we are seeing.

It becomes a little clearer when you see what other elements of federal law the more reactionary states are rejecting. Arizona was the first state to enact a draconian measure targeting immigrants, even though immigration is a matter reserved to the federal government, and other states—including Indiana—are scrambling to do the same.  Listen to the rhetoric about immigrants, then listen to the fury over health care, and you will hear an ugly common theme: everything that’s going wrong in this country is “their” fault. And who are “they”? Poor people, brown people, gay people…anyone who is different, anyone who is “other.”  Unlike “us,” “they” are all undeserving.

History teaches us that inter-group tensions increase during bad economic times. People are anxious and fearful and looking for someone to blame.

I just hope the recovery picks up steam before we “nullify” America.