When at Times the Mob Is Swayed

by Burt Neuborne

  If the law of American federalism is just a shell game, why shouldn’t progressives get in the game by taking “states’ rights” seriously to: (1) preserve aspects of state autonomy needed to enable effective resistance to Trumpist policies—think sanctuary cities, protecting undocumented aliens from mass deportation by federal agents; (2) play keep-away, shifting regulatory power to the states from the federal government in order to minimize Trump’s ability to harm the weak and the environment—think control over net neutrality, pollution, consumer protection, and environmental protection; and (3) funnel as much governing power as possible to state majorities willing to protect the weak—think state and local laws providing Uber drivers and other participants in the gig economy with collective bargaining rights over compensation and safety.

  Using federalism to protect the weak would be a welcome relief because until now federalism has usually put the power to protect the weak under the other shell. In the beginning, southern slave owners fervently embraced states’ rights because it insulated the dirty business of owning human beings from a growing national antislavery consensus. When, however, free states such as Pennsylvania and Wisconsin acted to protect fugitive slaves, southern slave owners were quick to abandon states’ rights, successfully invoking national power rooted in the notorious fugitive slave clause to override efforts to protect the weak.

  In the wake of the Civil War, the former slaveholders rediscovered states’ rights, fighting successfully under its banner for more than a century to frustrate attempts by a national majority to protect formerly enslaved persons and their descendants, who were trapped in hostile white-majority southern states. In the late nineteenth and early twentieth centuries, corporate America copied a page from southern racists, arguing that Congress lacked power to break up monopolies, prevent stock fraud, protect consumers, end price fixing, and limit wage gouging. When, however, progressive states tried to protect vulnerable workers and consumers, the lawyers for powerful corporations pivoted on a dime and rediscovered the dominance of national power.

  Things got better beginning in the late 1930s under a Democratic Supreme Court. In 1937, the Court recognized significant power over the economy vested in both state and national majorities. As one federalism shell game ended, though, another began. The “states’ rights” banner was brandished successfully for more than a generation by southern racists seeking to block the enforcement of an emerging national consensus rejecting racial apartheid in the states of the old Confederacy. When at last the southern governors’ ugly campaign of massive resistance to racial equality was rebuffed by a Democratic Supreme Court and a Democratic Congress, “states’ rights” became the right-wing rallying cry for resistance to the Warren Court’s expansive equality-driven reading of the federal Constitution.

  Progressives should recognize that federalism needn’t be just a shell game designed to protect the strong. A far better intellectual case can be made that American federalism, like separation of powers and the protection of individual rights, is simply another technique for protecting the weak against the tyranny or neglect of the majority. After all, that’s why we established a judicially enforceable Constitution in the first place.

  In every era, a shifting set of extra-legal circumstances has argued for national or local supremacy. Like an accordion, the relative power of national and state majorities has expanded and contracted in accordance with “the felt necessity of the times,” to use the words of Justice Oliver Wendell Holmes. During my lifetime, three powerful social forces have combined to trigger a sustained flow of power from state to national majorities. First, the Great Depression of the 1930s generated enormous pressure to expand both state and national power to regulate the economy. The argument for national regulation was often put in terms of efficiency and superior expertise, but the real need for national norms was to avoid a race to the bottom, an inevitable series of efforts by desperate state majorities to bid for a shrinking pool of jobs by lowering minimum wages, eliminating taxes, gutting safety rules, sacrificing the environment, and ending quality controls. FDR argued that only nationwide floors could slow such a precipitous race to the bottom, which would be destructive to everyone but especially harmful to the nation’s most vulnerable inhabitants.

  In 1937, responding to massive electoral victories by FDR and the threat of court-packing, the Supreme Court finally realized that a race to the bottom lowers all boats. Within five years, from 1937 to 1942, a newly Democratic Supreme Court rotated 180 degrees to a new definition of constitutional federalism, moving from a Republican refusal to permit Congress to set uniform national rules governing the economy to a Democratic recognition of national power to regulate even something as local as the amount of wheat a single farmer can grow in his backyard to feed to his own pigs.

  At the same time, the newly Democratic-dominated Court rotated 180 degrees in the opposite direction by removing Republican-imposed national “substantive due process” constraints on the power of states to protect vulnerable market participants, including workers and consumers. Such a double-barreled radical shift didn’t take place because the justices got smarter, because they finally discovered a dictionary that correctly defined “interstate commerce,” or because Alexander Hamilton and/or Thomas Jefferson spoke to them in the night.

  Rather, the change was driven by sustained electoral support for Democratic candidates that eventually translated into Democratic control of the Supreme Court, with a corresponding increase in the role of equality in breaking legal ties about the allocation of power between state and national majorities.

  The Depression was followed in 1939 by World War II and then the Cold War, a fight first for national survival and then for worldwide hegemony. The hot war against Nazi Germany, fascist Italy, and imperial Japan morphed into a series of Cold War military confrontations with the nuclear-armed Soviet empire, including full-scale land wars in Korea and Vietnam and a series of smaller skirmishes that continued until the collapse of the Berlin Wall in 1989 and the implosion of Soviet communism.

  The almost permanent nature of such armed confrontation inevitably concentrated government power in the center. A nation that perceives itself as fighting for its life will have little patience with dissenting regional majorities out of step with the exercise of centralized power defended as necessary to preserve the nation.

  Finally, beginning in the 1930s, but intensifying in the years after World War II, the Supreme Court was confronted by an ongoing refusal by recalcitrant state and local majorities in the states of the old Confederacy to defer to an emerging national consensus calling for an end to government-imposed racial apartheid and greater attention to racial fairness. Given the foreign and domestic consequences of such a racially charged confrontation, it was only a matter of time until the Democratic Supreme Court, with its tilt toward equality, empowered all three branches of the national government to act in the name of racial fairness.

  Viewed as a federalism tug-of-war between conflicting state and national majorities, the Supreme Court’s rejection of racial segregation in the public schools in Brown v. Board of Education—arguably the most important constitutional decision of the twentieth century—was really the imposition by a unanimous Supreme Court of an emerging national consensus rejecting racial apartheid on recalcitrant state and local majorities. The existence of a national consensus in three-quarters of the states for ending racial apartheid was why the Brown opinion was ultimately unanimous, and why its conclusion that state-imposed racial apartheid is unconstitutional continues to receive virtually unanimous support today.

  The absence of a national consensus on how to deal with racial issues beyond eliminating state-imposed apartheid and intentional discrimination explains why the post-Brown Supreme Court was unable—and unwilling—to move beyond banning state-imposed apartheid and intentional racial discrimination.

  By 1990, a year after Soviet communism had imploded at the Berlin Wall, each of the three mutually reinforcing reasons
to prefer national over state majorities had diminished in intensity. The Great Depression with its race to the bottom was only a memory. While interstate competition for jobs continued to invite dilution of protections for the weak—witness the success of certain states in luring jobs from the Northeast by diluting the power of unions and dispensing with social programs impacting the tax burdens of prospective employers—the existence of national minimums enacted by Congress provided significant floors below which state majorities cannot sink in bidding for jobs.

  Perhaps more important, despite a few rocky periods, the nation’s economy had relentlessly improved since the end of World War II. When times are relatively good, the temptation to attract scarce jobs by gutting the social safety net is considerably less intense. So, while the risk of a race to the bottom is still with us, it became more of a slow shuffle, not a frantic sprint.

  Similarly, when the collapse of the Berlin Wall signaled the end of the Soviet empire as a threat to the United States, the centralizing pressure of the Cold War evaporated overnight. Without the need to maintain a strong central shield against Soviet aggression, power began to flow back to the states, tempered only by the emergence in the years following 9/11 of a new foreign threat in the form of terrorism.

  Finally, the South’s regional tantrum against accepting formal racial equality ended in grudging surrender. A new generation of southern leaders accepted the legal duty to refrain from intentional racial discrimination. Race relations in the South came to resemble race relations throughout the United States, with formal racial equality coexisting with massive indirect reinforcement of inequality.

  Once the perceived need for strong central rules was relaxed, power began to drift back to the states. In 1995 Congress was told by the Supreme Court for the first time in more than fifty years that it lacked power under the commerce clause to enact desired legislation. In United States v. Lopez, the Republican Supreme Court struck down a commerce clause–based congressional ban on gun possession in or near schools, leaving pro-gun state and local majorities firmly in control of that issue.

  The newly reenergized federalism shell game continued when, in United States v. Morrison, the Supreme Court told Congress that it could not invoke either the commerce clause or the post–Civil War equality amendments to enact national laws protecting women from gender-based violence, locating the regulatory power solely in state or local majorities.

  In Printz v. United States, the National Rifle Association then persuaded the Republican Supreme Court that Congress lacked power to force dissenting state law enforcement authorities to carry out federal background checks in connection with federally regulated gun purchases.

  Then, in a series of cases under the Eleventh Amendment, culminating in Alden v. Maine and Seminole Tribes v. Florida, states’ rights was invoked to block federal judges from imposing money judgments on the states for violating the law—even the Constitution.

  The accordion shift of power back to the states continued with the stunning decision by the Republican Supreme Court in Shelby County to invalidate a key portion of the Voting Rights Act of 1965 that had successfully blocked state majorities from disenfranchising black voters for almost half a century.

  Finally, as we’ve just seen, the justices drew a razor-thin distinction between Congress’s power to prohibit and its power to compel, ruling 5–4 that Congress lacked power under the commerce clause to compel individuals to buy health insurance.

  The seventy-five-year run of pressure for increased national power that began with the Great Depression appears to have ended—just in time for progressives to deploy the concept of states’ rights as a check on a presidential bully. How can progressives get into the federalism shell game in defense of the weak? There is no all-purpose federalism dial attached to the Constitution. The pressures that drive the relative waxing and waning of state and national power play themselves out in a series of formally unconnected, maddeningly complicated legal doctrines. Progressives will have to fight the federalism battles doctrine by doctrine. Do not wade into that doctrinal swamp expecting illumination. Each of the federalism-related legal doctrines has evolved in majestic isolation from each other, and from the real-world factors that drive them.

  The Trump administration’s claim to a genuine electoral mandate to speak for a majority of the nation in the give-and-take of federalism is at its lowest ebb since the Civil War. As we’ve seen, Donald Trump is a minority president. He lost the presidential election by more than three million votes and is in the White House only because the Electoral College is unfairly tilted toward rural constituencies. Republicans control the Senate only because the constitutional mandate of two senators per state regardless of population has turned the Senate into an appallingly undemocratic body. Republicans control the Supreme Court only because confirmation of the last two justices took place in the malapportioned Senate controlled by Republican senators representing less than 40 percent of the population. Republicans are overrepresented in the House of Representatives in large part because of ruthless partisan gerrymanders protected by five Republican Supreme Court justices who have deployed the First Amendment to protect the ability of the superrich to play an excessive role in American elections but who have to this point refused to recognize a First Amendment right to vote in a genuinely competitive election.

  While the undemocratic nature of the Republican hold on the national government does not erode the right of Republican officials to hold office—Trump is our lawful president, the Senate is lawfully Republican, and the Supreme Court’s nine justices are lawfully entitled to exercise their powers—it should, in close cases, affect the delicate balance between state and federal power. If American federalism is really about which legitimate democratic majority, state or federal, should be empowered to rule on a particular issue, and if today’s version of the national government lacks a strong democratic imprimatur, federalism issues that do not tip clearly one way or the other should, I believe, be nudged toward the state majorities as the better democratic game in town.

  In deciding close federalism cases, I would ask a single question—which group of elected officials, state or national, is more likely to treat the vulnerable fairly? In short, in the Time of Trump, the power to act should be found under the shell most likely to treat the weak fairly.

  Let’s take a look at some likely federalism battlegrounds.

  SANCTUARY CITIES

  The first important federalism battleground of the Trump years will be over efforts by state and local majorities to distance themselves from President Trump’s effort to deport millions of undocumented aliens. No one knows how large the pool of undocumented aliens may be, but it almost certainly exceeds ten million people, most of whom live quietly in shadowy corners of their adopted country, seeking to educate their children and trying to eke out an existence on the margins of the economy. They pick our crops and tend to the sick and aging. We let them into our gated communities only to clean our houses, cut our lawns, and collect our trash.

  Donald Trump got himself elected president by demonizing them. Playing on the fears of many white Americans that non-white immigration is threatening their political, economic, and social dominance, Trump repeatedly inveighed against “Mexican rapists,” “Muslim terrorists,” Haitian “slackers,” and Central American drug dealers. Russian oligarchs and unsavory immigrants from majority-white nations got a pass.

  Not surprisingly, as president, Trump has intensified efforts by federal immigration agents (working under the acronym ICE, standing for Immigration and Customs Enforcement) to identify, apprehend, and deport undocumented aliens. There is, of course, no reason for state or local majorities to resist federal efforts to deport undocumented aliens who have committed serious crimes (although even there, thorny questions arise about what to do with innocent family members). But Trump doesn’t stop with deporting serious criminals. Intensifying deportation programs begun under the Obama administration, Trump has launched a massive pr
ogram of surveillance and a series of dragnet raids by a cadre of federal enforcement officials aimed at churches, libraries, courtrooms, workplaces, and residences, in the hope of sweeping as many unfortunate undocumented immigrants as possible into the deportation net, whether or not they are guilty of anything other than seeking a better life in the United States.

  Many, perhaps most Americans are deeply opposed to the national government’s deportation dragnets. In state after state, overwhelming majorities have directed their state officials to do all they can to distance themselves from federal dragnet arrests and mass deportations while Congress struggles to shape a humane but effective immigration policy.

  In one troubling sense, the United States has been here before. This is not the first time that state majorities have sought to protect the most vulnerable among us from the unjust enforcement of oppressive national norms. During the years leading up to the Civil War, the anti-slavery Underground Railway, based in northern states, fought a battle for the bodies and souls of thousands of black human beings who had fled from slavery. Since capturing and returning escaped slaves under the Fugitive Slave Act of 1850 was an immensely lucrative business, slave catchers made little or no effort to confine themselves to pursuing proven runaways; they preyed on free blacks as well. And once a free black was captured by a bounty hunter and transported south as an alleged runaway, little chance existed that he or she would ever taste freedom again.

  Responding to the kidnapping of free blacks from the streets of Philadelphia, the Pennsylvania legislature enacted an anti-kidnapping law forbidding private slave catchers from removing anyone from the state without a jury trial designed to assess whether probable cause existed to believe that the prisoner was, in fact, a fugitive slave. Southern slave owners quickly challenged the Pennsylvania statute in the Supreme Court, arguing that Pennsylvania’s anti-kidnapping statute interfered with their constitutional right under the fugitive slave clause to resort to self-help to recover their “property.”