Yes, we are a divided country. Everyone knows that. But were we really going to fracture on such an intimate and high-stakes issue?
And what does that mean for the future of American democracy when it’s every man for himself?
The Many Shades of Federalism
The question of state power is as old as the Republic itself.
After the Revolution, the states formed a loose confederation and delegated only limited powers to the national government. But when that confederation proved ineffective, delegates to the Constitutional Convention forged a more powerful national government – and superimposed it on state governments.
It was federalism. The division of powers.
The Constitution was vague, however, on exactly how these powers should be divided. And the tension between state and federal power almost tore the country apart with civil war.
But for much of our post-Civil War history, national and state governments have primarily worked together to address economic challenges, provide citizens with health care coverage, and clean up the environment. Academics have called this “cooperative federalism”.
More recently, however, the country has moved away from this relative harmony and entered what scholars have called an era of “non-cooperative federalismor “polarized federalism”. In a 2020 essay in the journal Publiuspolitical scientist Greg Goelzhauser of Utah State University and Indiana University professor of public and environmental affairs David Konisky went so far as to claim that President Trump had fallen into a “federalism punitive”.
A fight with California officials over environmental regulations is a good case study.
When Trump’s Environmental Protection Agency sought to weaken an Obama-era rule toughening fuel economy standards for cars and light trucks, California pushed back — reaching a voluntary agreement with four automakers who agreed to adhere to higher standards. A few months later, Goelzhauser and Konisky write, the administration responded with a series of “apparently retaliatory” measures.
The EPA has withdrawn a federal waiver allowing California to pursue its own vehicle emissions reduction program. The Justice Department opened an antitrust investigation into the automakers that made the deal with state officials. The administration sanctioned San Francisco for its management of three sewage treatment plants and threatened to withdraw federal funds for state highways. And he filed a lawsuit aimed at scuttling California’s cap-and-trade climate pact with the Canadian province of Quebec, in a move that California Governor Gavin Newsom called “political vendetta.”
Concerns about Trump’s seemingly vindictive brand of federalism have also swirled its crackdown on “sanctuary” jurisdictions that protected unauthorized immigrants and its distributing pandemic aid – he seemed to favor those governors who supported him and punish those who did not.
“State against State”
Trump was an extreme case. But even before he took office, national and state governments had drifted into a more acrimonious relationship.
After President Obama signed the Affordable Care Act in 2010, several Republican-controlled states refused to expand their Medicaid programs despite generous grants from Washington. And GOP state attorneys general have filed dozens of lawsuits against the administration on all sorts of topics. “I go to the office, sue the feds and go home,” said the then Attorney General of Texas Greg Abbott told a Tea Party group in 2013, describing his typical day.
Democrats have returned the favor under the Trump administration, with Massachusetts Attorney General Maura Healey ranking among the most aggressive litigants.
And we don’t just see the polarization of “vertical federalism” – state versus federal government. “We are also seeing an increasingly polarized horizontal federalism,” says Utah State political scientist Goelzhauser. “State against State. You know, California and New York versus Texas.
Attorneys general from different states are clashing over big issues like health care and immigration. Governors and state legislators do the same. There’s even a new breed of intra-state combat emerging.
Democratic mayors clash with Republican governors pandemic restrictions. And in a case headed to the Supreme CourtNorth Carolina state legislators argue they have exclusive power to set election rules, independent of state court review of their constitutionality.
John Kincaid, a professor of government and public service at Lafayette College and an expert on federalism, says the roles of city, state and federal government are increasingly blurred — and supporters don’t seem particularly concerned by what the appropriate roles should be. They just want to find a place where they can earn on whatever subject interests them.
A friendly court. A friendly legislature. At best, a friendly Congress.
“We see a lot of forum exchanges between the federal government and the states,” he says, “as people move from one to the other.”
Have both meanings?
Critics of the Supreme Court see a bit of cynical forum shopping in its latest round of rulings.
One day, he discovered that a federal constitutional right to bear arms overrode a New York state law that placed strict restrictions on carrying guns in public. The next day, he struck down a constitutional right to abortion and returned the issue to the states. Support for federal power in one case, state power in the other.
The Conservatives say this is a deliberate misinterpretation of the rulings. The right to bear arms is enshrined in the Constitution and deserves the protection of the courts, they say, while the right to abortion was enshrined in the Constitution by unelected judges and must be reading out loud.
But whatever the merits of these arguments, the general trend is undeniable.
Question after question, our democracy demands some kind of guerrilla warfare mindset, where offensive forces seize high ground wherever they can find it and strike – and defensive forces are forced to be ever more agile and strategic.
Consider the Supreme Court’s decision that mandate to expunge a Maine law prohibiting private religious schools from receiving taxpayer money.
Lawmakers in that state knew which way the court was leaning before they even made a decision. And they made a clever roundabout way in advance, amend the state’s anti-discrimination law to prohibit discrimination based on gender identity and sexual orientation and apply the standard to all private schools seeking public funds, whether or not they are they are religious.
The change in state law effectively overruled the Supreme Court ruling before it arrived, with the two religious schools at the heart of the case saying they would not accept state funds if it involved to have to change the way they run things or admit LGBTQ students.
Pro-abortion states must be equally competent.
A New Era for State Power and Abortion
Before the court reversed Roe v. Wade, Connecticut lawmakers passed legislation protecting abortion providers in their state who perform the procedure for people from states where it is illegal. The measure prohibits Connecticut authorities from providing information to out-of-state investigators or complying with extradition orders. And it allows providers sued for their role in an abortion to counter-sue in a Connecticut court. Massachusetts lawmakers are currently proposing similar legislation.
While these clever adaptations are admirable in their own way, they don’t make it any less difficult look at the state-by-state pitched battle over abortion that is underway.
It is undeniably disturbing to see a decades-old national decision on such a sensitive issue fall, leaving 50 separate state legislatures to navigate their way to a new framework.
But if there is any hope at this difficult time, it may be that the Supreme Court’s decision to overturn Roe should come as a shock to activists, city councilors and state lawmakers. Give them a new sense of power.
If they hadn’t fully realized how central their work is to our national life, they should now.