by David A. Super
Federalism, defined as respect for state and local governments, has long been a cornerstone of the conservative movement in this country. Conservatives have criticized liberal initiatives to expand the federal government’s role — from the New Deal to civil rights to Medicare, Medicaid and environmental regulation to the Affordable Care Act — as usurping the responsibilities of state and local governments. President Ronald Reagan explained his federal budget cuts as “returning power to the states and communities.”
The Trump administration, however, has abandoned any semblance of coherent support for federalism in very much the same way as it has rejected other conservative articles of faith, such as free trade. If not checked by other Republicans, this administration will do lasting damage both to our system of divided sovereignty and to the credibility of conservatives’ pro-federalism positions for years to come.
The administration’s approach to federalism is essentially opportunistic. Rather than embracing states as legitimate co-sovereigns and representatives of the people, it has sought to expand states’ power where doing so would advance its substantive policy ends — while sharply reining them in when it disagrees with their priorities. A federalism that allows states power only to the extent that they agree with the current federal administration is no federalism at all.
The administration repeatedly has moved to centralize federal power over issues of great importance to state and local governments.
Federal environmental laws long have given states broad discretion to establish more protective standards. This is particularly important in California, where topography and climate make Los Angeles vulnerable to some of the worst smog in the country. Many saw this as a federalism success story, allowing California to address its urgent needs while other states with different conditions struck an environmental balance right for them. The Trump administration, however, has stripped California of that authority. When the state negotiated emissions controls with four major automakers — in an exemplary departure from command-and-control regulation — the Trump administration threatened antitrust action. This belligerence is likely to further centralize regulatory powers and lead to one-size-fits-all standards treating all states as if they had a Los Angeles in their midst.
Similarly, the Justice Department has sought to coerce state and local governments to assign their police forces to pursue federal immigration priorities. Centralizing law enforcement powers is a serious threat to individual liberties that conservatives long have decried. The Supreme Court, speaking through Justice Antonin Scalia, has held that the federal government may not “commandeer” state and local law enforcement agencies to its own ends. This commandeering is particularly dangerous in immigration law, a highly complex field on which state and local police have little expertise. When he was mayor of New York, Rudy Giuliani sued the Clinton administration over demands that federal immigration enforcement priorities override elected officials’ control over local government. Yet the Trump administration has achieved striking success in bowing state and local governments to its demands.
On the other hand, the Trump administration is decentralizing matters of distinctly national interest. Ignoring the Constitution’s uniformity requirement with respect to immigration, the president issued an executive order granting local governments a veto over the resettlement of refugees. Far from seeing this as enhancing their powers, a large bipartisan group of mayors urged the administration to retract this policy.
Similarly, the administration is moving steadily to expand state control over federal lands. To this end, it is moving some of the agencies Congress has made stewards of this land away from Washington. Some of these moves are quite bizarre: Bureau of Land Management legislative affairs staff are slated to move to Reno, Nev., while its international affairs specialist will be in Salt Lake City. The administration is sending the Economic Research Service, whose findings should guide executive and legislative policy, to Kansas City.
Many long-time federal workers are unlikely to uproot their families, allowing them to be replaced with staff from state governments. Whether old or new, however, these officials will not be paid by Nevada, Utah, or other states, and it would be inappropriate if they gave the views of any particular state precedence in performing their federal duties.
Many federal officials responsible for federal lands apparently will be housed in space rented within state natural resources office buildings. The idea is to make them more responsive to concerns of state officials and local industry, but this badly misconstrues their roles. The conservation and tourism interests of distant voters and taxpayers are very much a part of these officials’ mandates. States, of course, have extensive land holdings of their own, supported by their own tax dollars and subject to state control. Federal officials paid with federal tax dollars should manage federal lands in the interests of all the nation’s people.
Even when the administration does give states power, it is to promote a specific policy agenda formulated in Washington rather than democratic innovation at the state and local level.
Having so far failed to eliminate the Affordable Care Act, the administration wrote to all states to urge them to adopt an administration-designed policy of denying Medicaid to many otherwise eligible unemployed recipients. Similarly, while opposing state initiatives to expand public health insurance programs, it encouraged states to loosen the Affordable Care Act’s minimum requirements for health insurance policies.
Conservatives may well applaud these specific policies, but using states as mere tools for circumventing Congress rather than respecting states’ independent policy judgment is toxic for principled federalism. Unless conservatives are ready to concede that federalism is no longer a cause worth pursuing for its own sake, the time to speak up about the administration’s flippant federalism is now.
David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1