Inconvenient Federalism: The Dangers of States’ Rights and Travel Bans

“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.

The Republican and conservative call for states rights and federalism is a creature of the 1970s rooted in two issues.  The first is a reaction to the expansionist federal government during the New Deal under Franklin Roosevelt and the Great Society under Lyndon Johnson.  Both were  liberal enterprises that significantly expanded the role the federal government in ways that conservatives and Republicans did not like.  The other call for federalism was in reaction to the liberal Supreme Court policies of the Warren Court which expanded constitutional protections to a host of issues, including criminal due process, civil rights, privacy, and eventually under Chief Justice Warren Burger, reproductive rights and abortion.

The call for states rights and federalism was an effort to limit the federal government’s power, at least its liberal bent.  Let states do it, so the claim is, and they will do it better.  They are the laboratories of democracy, capable of innovating and more in touch with their local needs and people.  States’ right in theory is about local democracy, ostensibly at least.  In reality, the belief among many Republicans back in the 1970s when the “New Federalism” was first championed, and even today, was that states rights would weaken the national government, undo the liberal agenda, and allow for conservative outcomes to prevail.

In many cases federalism did work.  A weakened national government meant states could again pass anti-abortion, anti-gay, and just about any other anti-something legislation that they wanted. Yet it was an inconvenient and inconsistent  federalism.   When Reagan appointed Antonin Scalia to the Supreme  Court and for the last 30 years when he and it became a reliable institution supporting conservative outcomes there was no complaint about the federal government.  The same was the case when Bill Clinton signed welfare reform, the Defense of Marriage Act, or when George Bush increased federal powers to wage the war on terrorism.

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 constitutional 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 there is yet another face to federalism that brings mixed blessing to conservatives and Republicans. Consider on the one hand decisions by the states or North Carolina and Mississippi to pass bathroom legislation restricting transgender individuals to use facilities that correspond to their gender birth.  Or Indiana’s recent decision to place new restrictions on abortions.  This is clearly what state righters had hoped for.  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 tow the policy line.  Doubtful this is what states’ rights advocates envisioned.

But there is something dangerous with this new federalism–it invites retaliation or use for less than noble reasons, and thus is not good news for Democrats. At what point will North Carolina or Mississippi retaliate against Minnesota and issue its own travel bans?  Or 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 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.  Freedom and equal opportunity means freedom equality of opportunity for everyone, regardless of where they live.  This is what E Pluribus Unum is supposed to stand for.

The new federalism movement is both a failure when one thinks of nationalism and building a UNITED States of America, but is also showing how the states’ rights movement has not lived up to what many conservatives and Republicans envisioned.

Pawlenty v. Swanson: Litigation Politics

On Monday MN Attorney General Swanson informed Governor Pawlenty that not only will she not join him and other states to stop the health care law but that she would actually file an amicus to support it constitutionality. Whatever the larger politics are between Swanson and Pawlenty, she made the correct legal decision.

The law suit challenging the constitutionality of the law is barking at the moon, to say the least. The legal argument to challenge the bill is premised upon a 10th Amendment federalism claim, contending that the federal government has exceeded either its Commerce Clause or taxing power in requiring individual coverage or in requiring states to provide new mandates. There are numerous problems with these claims.

We first start with a standing and ripeness issue. Does a state have the standing to sue the federal government on behalf of its citizens? Specifically, here there is the assertion that states have the authority to challenge the individual mandate for insurance on behalf of their citizens. It is not so clear that can do that. Generally states can sue the feds when they as states have been injured (Take a look at the recent Supreme Court Massachusetts v. EPA decision on this) but it is not so clear states can always sue on behalf of their citizens. Standing is the issue. Standing refers to the ability of individuals to sue in court. One requirement of standing is that one must suffer an injury. Here citizens lacking insurance but who are required to buy it are those potentially facing an injury, not the states. Thus it is possible that the courts would say that the citizens themselves would have to sue, not the states.

There is a second issue here about the individual mandate and it relates to ripeness. The federal courts generally do not take cases until ripe for review. Here, the individual mandate does not take place until 2014. Before then the law could be repealed, modified, or who knows what. The point is that no one is injured until 2014. Thus the courts could say either there is no present injury (therefore no standing) or that the case is not yet ripe for review.

Now in terms of the federal government violating the 10th Amendment (federalism requirement), this argument is also tough to make. During the Rehnquist Court both the Chief Justice and Justice O’Connor led the way in terms of arguing that the 10th Amendment placed limits on the ability of the federal government to use its Commerce Clause power to legislate. The couple of cases at the basis of these decisions were unusual and signaled an aberration from the dominant Post New Deal jurisprudence and Court rulings giving the federal government broad authority under the Commerce Clause and its Taxing power to legislate. There is little indication that the Roberts Court is interested in taking on the federalism issues. Instead, in several cases involving questions of whether federal power preempts states from acting, the Roberts Court seems to be favoring federal over state power. It just does not look like this Court is as receptive to federalism claims as was the Rehnquist Court.

Bottom line: State lawsuits are faced with standing and ripeness issues and it is unlikely that the current Court will be favorable to federalism claims. The lawsuits to challenge the new federal health care law look like certain legal losers. However, not all lawsuits are about winning in a court of judges. Some are aimed at the court of public opinion in an election year and as part of an effort to ingratiate oneself with potential presidential supporters.