Almost immediately after the election, progressive states that have cheerfully supported every manner of Barrack Obama’s incursions into federalism, flipped on dime. Now, California wants to become the new Texas–like orange is the new black–and rely on the principles of federalism to protect their sanctuary cities. What is Texas, and other likeminded states to do? Sit on the sidelines and laugh? Fall in line behind the Trump Administration? I argue they should help the cause of federalism, wherever it appeals, and hope to lock in precedents for a future administration that will be hostile to the states.
My latest piece in National Review is titled (with just the right degree of click-bait): “How the States Can Help Trump Make Federalism Great Again”
Here is the introduction:
Over the last eight years, more than two dozen state attorneys general have mustered a veritable legal army to thwart the unconstitutional overreach of the Obama presidency. With the change in administrations, however, these elite forces should not disband, but rather must retool. If the Trump White House is to succeed in restoring constitutional governance, it will need the support, cooperation, and sometimes pressure from the states.
In the short term, state attorneys general can coordinate with the incoming Justice Department to identify the cases and appeals that should be dismissed or settled. Further, these legal officers should roadmap how Congress and the president can rescind unlawful executive actions. Going forward, when progressive states seek to resist federal incursions, conservative states should consider supporting the principles underlying those cases: state capitols, and not the central government, should decide local matters. Precedents set during this period will, in the long run, entrench the separation of powers, and ultimately promote individual liberty.
And the conclusion:
I am not Pollyannaish. It is easy enough for a law professor to extoll the value of federalism, but on the ground, elected attorneys general may face a backlash if they actively challenge the Trump administration in court. Three important values should guide this important decision. First, Donald Trump will only be president for the next four to eight years. Sooner, rather than later, a progressive will be in the White House. The precedents that are established now will serve as a check on the havoc a President Elizabeth Warren cold unleash on the states. Second, there is a powerful value to gaining buy-in from the liberal justices — especially those who will serve for decades to come — for the principles of federalism. True, Justices Kagan or Sotomayor may be able to distinguish California’s present challenges with Texas’s future challenges — but the feebleness of those flip-flops will be visible to all.
Finally, and most importantly, state officials take an oath to the Constitution, not to the Republican party. They bear the unique responsibility for enforcing the Tenth Amendment, in all of its dimensions: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The mission of reining in the federal government’s powers, and restoring the Constitution’s separation of powers, should continue for the next four years, eight years, and beyond.
I hope this generates food for thought. The elite legal teams built up by Republican Attorneys General still have an important mission to help restore constitutional governance, even if the Trump Administration is not willing.