Appallingly, in Prigg v. Pennsylvania, the pre–Civil War Supreme Court agreed with the slave owners. Trump seeks to replicate the fugitive slave model by arguing that states are powerless to shield law-abiding undocumented aliens from ICE dragnet raids. Designating themselves as “sanctuaries,” states and cities have fought back by refusing to cooperate with ICE raids. Stung by the refusal of local law enforcement officials to cooperate with ICE, President Trump has threatened to punish sanctuary cities. Four principal areas of disagreement have arisen: (1) whether state or local law enforcement officials can be forced to notify ICE of the impending release of undocumented aliens from state or local custody, no matter how minor the charge, so that federal officials can pick them up for deportation with minimal effort; (2) whether state schools, such as the University of California, can be compelled to cooperate with ICE in identifying undocumented students in the student body; (3) whether state or local agencies and officials can be required to cooperate with ICE raids by providing information about the existence or whereabouts of undocumented aliens; and (4) whether private individuals, including employers and schools, can be pressured to cooperate with dragnet raids by permitting ICE agents on the premises without a warrant and providing them with information in the absence of a court order.
California law forbids cooperation with ICE in all four settings, except where the undocumented alien is deemed a threat to public safety. In retaliation, President Trump has threatened to cut off federal funding to the police forces of cities and states that decline to provide affirmative assistance to federal officials in detaining, locating, and rounding up the undocumented. It’s as though southern slave owners had demanded that Pennsylvania provide affirmative help to the slave catchers.
California argues that federalism-based protection of its sovereignty should block the national government from “commandeering” the state’s resources and personnel to carry out a national policy soundly rejected by the state’s electorate. Ironically, the sanctuary movement’s strongest legal precedent was established in Printz v. United States when the national government unsuccessfully sought to compel state law enforcement officials to conduct federally required background checks prior to the purchase of certain guns. A solidly Republican Supreme Court struck down the federal mandate as an unconstitutional interference with state sovereignty.
Trump will doubtless argue that withholding aid to states that refuse to cooperate with ICE is not the same thing as commanding a state law enforcement official to act. But the Supreme Court has repeatedly ruled that the national government cannot coerce individuals (and presumably states) to waive a constitutional right by threatening to withhold a benefit to which they would otherwise be entitled. It’s called the “unconstitutional conditions” doctrine. The Supreme Court invoked it recently to strike down the important portions of the Affordable Care Act that required dissenting states to accept extended Medicare coverage as the price of receiving federal assistance for the rest of the program.
Thus, if respect for precedent has real meaning under a Trump Supreme Court, a sanctuary city can’t be financially punished for exercising a constitutional right to decline to use state resources to carry out a federal policy with which it disagrees. Round one should go to the states on points under a combination of respect for precedent, the Printz anti-commandeering principle, and the unconstitutional conditions doctrine.
Round two will be tougher—probably a split decision. What happens when states such as California pass laws explicitly releasing private individuals, including employers and private colleges, from any legal duty to assist federal immigration officials in tracking down or apprehending undocumented aliens in the absence of a court order? While, under Printz, states, schools, government agencies, and local cops need not help in the federal immigration roundups, California may not interfere with lawful efforts by the national government to carry out a valid national program with its own resources. A state-imposed prohibition on private cooperation with ICE in the absence of a court order might be held unlawful as a form of sabotage. But respect for the authority of a state to preserve the peace should permit states to require that ICE provide clear legal guidance to private individuals about their rights and duties when facing a federal official with a gun. Laws merely releasing private individuals from a legal duty to cooperate with ICE in the absence of a court order merely re-state existing law and should be affirmed. Empowering a private actor to refuse to cooperate with a federal official who is attempting to carry out morally reprehensible mass deportations and who has not bothered to get a court order directing cooperation, simply forbids the federal government from engaging in self-help in the teeth of private opposition. Maybe this time we’ll get the self-help issue right. One Prigg v. Pennsylvania is more than enough.
So, round two to the states on points—but there’s a catch. Just as states can claim to speak for a legitimate state majority when declining to help President Trump to carry out his efforts at mass deportation, local majorities within many states may, as a matter of state law, opt to cooperate with the president. Some states refuse to grant local governments such operational autonomy. But most allow a form of “home rule” that would allow dissenting majorities in certain localities to make their own deals with the president. Orange County, a traditionally conservative enclave in Southern California, has done just that—opting out of California’s “sanctuary state” legislation by publishing the names of all people scheduled to be released from Orange County jails so federal officials can pick them up with minimal effort. That’s a matter for California law, or Orange County voters, to fix.
The third federalism skirmish over ICE will involve state laws seeking to ensure humane conditions in federal immigration detention camps located within the state. State building and public health officials routinely play constructive roles in ensuring safe and humane conditions in federal buildings, including prisons, and on federal military installations. They even played constructive roles in ensuring the health and safety of Japanese Americans confined to federal detention camps during World War II. No reason exists to exempt federal detention facilities for undocumented aliens from the reach of such traditional state concerns over health and safety, especially since the danger of contagion is apparent. Compulsory state health and building inspections of federal immigration detention facilities should be a state knockout.
NET NEUTRALITY
A classic test of the power of a minority president to issue regulations that override the will of legitimate state majorities will pit the decision to rescind Obama-era regulations ensuring net neutrality against a number of state majorities insisting on equal access to the internet.
Under the Trump administration’s new rules, first-class internet access would be provided to those willing and able to pay, ensuring speedy and convenient internet service for a price, while everyone else would be required to make do with variations of second-class internet access. In effect, Trump wants to turn the internet into a commercial jetliner, with classes of service available on the basis of the consumer’s ability and willingness to pay. By contrast, states such as New York and California want to treat the internet like the landline telephone, with everyone enjoying the same level of service.
The issue cries out for resolution by Congress under its power to regulate the interstate economy. Congress has the unquestioned power under the existing reading of its commerce clause authority to regulate access to the internet. As usual, though, Congress is nowhere to be found. Instead, back in 1934, Congress created the Federal Communications Commission, staffed by presidential appointees, and gave it power to develop a national communications policy “in the public interest.” In 1940, the Supreme Court upheld such a ridiculously broad delegation of lawmaking power to an agency in the executive branch—it was the beginning of the end of classical separation of powers.
Over the years, the FCC has moved from left to right in deciding what is “in the public interest,” initially requiring
“fairness” in broadcast news coverage and then withdrawing from the field—leaving us with unregulated TV and cable propaganda networks passing themselves off as news broadcasters. Initially, in the name of encouraging a multiplicity of voices, the FCC sought to limit the power of a single broadcaster to control the airwaves and newspapers in the same local market. Now, in the name of efficiency, it encourages massive concentrations of broadcast power in the hands of a few large corporations. Through it all, Congress, by delegating uncontrolled power to the FCC, had taken itself out of the game.
As I’ve argued more than once, such a standardless delegation of authority to the executive should be held to violate separation of powers because, in effect, it delegates the discretionary power to make new law to the executive branch. But, so far at least, the Court has not sought to force Congress to confront its responsibilities instead of kicking the can down the road to faceless bureaucrats. In the absence of congressional guidance, the FCC has treated the question of net neutrality as just another presidential political football. After the Obama administration issued regulations requiring equal access to the internet, Trump’s FCC promptly pulled the Obama regulations, substituting new executive regulations authorizing major communications players to sell unequal access to the internet.
It was simply a matter of time until state majorities seeking equal access to the internet collided with President Trump’s assertion that he speaks for a national majority in authorizing unequal access to the internet. It is at this point that Trump’s tenuous status as a minority president should tilt the federalism issue to the states.
Dissenting state majorities, seeking to preserve the principle of net neutrality, have fought back in two ways. Montana has insisted that any internet company with which it does business must promise to allow equal access to the internet to all Montana residents. California and New York have gone further, passing legislation requiring net neutrality in their states. How should the federalism dispute be resolved?
As president, Trump is fully entitled to provide for the issuance of FCC regulations ending net neutrality that bind the national government and, in the absence of countervailing state majorities, bind the states. But where legitimate state majorities reject Trump’s effort to permit unequal access to the internet, Trump’s regulations lack the democratic imprimatur of a legitimate national majority needed to override the will of a legitimate state majority. There is no expression of a congressional national majority on the issue. Nor is there a presidential national majority on the issue. That leaves the state majorities in California, New York, and Montana as the only legitimate democratic games in town.
On a more conventional resistance level, the states’ residual “police power” to ensure the equal treatment of their residents should be seen as sufficiently powerful to survive an effort to override it by a federal regulation inviting internet discrimination against the weak. As we’ll see in a moment, it’s the same federalism issue raised by Trump’s assault on the environment.
PROTECTING THE ENVIRONMENT
Much of Trump’s domestic executive policy consists of unwinding Obama-era regulations designed to protect the environment. It’s the regulatory neon sign in action. The underlying congressional statutes do nothing but delegate virtually standardless regulatory power to the executive. Each president, claiming to be enforcing the meaningless statute, flips a switch changing the policy mix. Executive regulations come and go like spring snowstorms.
Trump is taking full advantage of the massive delegation of lawmaking power permitted under the existing system. State majorities committed to protecting their environment can fight back by invoking state police power to protect the health and safety of state inhabitants against federal regulations inviting environmental degradation.
Newly minted federal regulations authorizing offshore drilling for oil and gas are a classic example of the coming collision over preserving the environment. No one disputes the fact that the national government exercises control over submerged lands beyond the state three-mile offshore ownership limit. As usual, though, Congress is nowhere to be found on the question of whether and when offshore drilling should take place on federal land, leaving the issue for decision by the Department of the Interior.
The secretary of the interior can’t make new law. That’s for Congress. But, as usual, Congress has delegated virtually unconstrained discretion to the executive branch over how to manage the submerged lands, including whether to drill for oil and gas on them. All agree that offshore drilling risks environmental degradation of the oceans and shoreline. The massive 2010 Deepwater Horizon oil spill in the Gulf of Mexico was only one dreadful example. On the other hand, offshore drilling may unlock substantial energy reserves, diminishing reliance on foreign sources, lowering the price of energy, and bolstering the economy.
Congress should set the balance. But, as usual, Congress is missing in action, requiring presidential appointees to step into the power vacuum left by Congress’s inaction. The energy companies insist that precautions can minimize environmental risks. Environmentalists aren’t so sure. The Obama administration opted to ban offshore drilling. Trump promptly lifted the ban (except for Florida, whose Republican governor successfully pleaded for an exemption because of Florida’s “unique” dependence on tourism). I guess tourists only visit Republican states. No exemption for California.
Since the state’s police powers stop at the three-mile limit, states cannot resist offshore drilling by simply banning it (as they can with the net neutrality issue). Instead, California has invoked its police power to ban the transportation across the state of oil and gas pumped from offshore wells. Will that work?
There is no doubt that transporting offshore oil and gas across the state would pose enhanced environmental risk, bringing California’s police power into play. Pipeline leaks are not a hypothetical risk—there have been pipeline leaks all across the country. The decision of a minority president acting unilaterally to override a legitimate state democratic majority seeking to protect its environment against such a risk constitutes a weak argument for national power.
On the other hand, flatly barring the transportation of the oil and gas pumped offshore operates as a de facto veto of the president’s decision to authorize the drilling. If California lacks power to prohibit the drilling directly, I question whether it may use the police power to impose a de facto prohibition. California’s strongest case would be to enact stringent general regulations on energy transmission to be applied to all oil and gas pumped in or transmitted across the state—including offshore oil. Its weakest position would be to enact rules that apply only to offshore wells, leaving the state open to charges that it is exceeding its police power.
Of course, the first-best response would be to enact thoughtful congressional legislation regulating the area. Don’t hold your breath. The second-best response is to vote Trump out of office before the next environmental disaster.
THE GIG ECONOMY
Once upon a time in the United States, most folks worked for someone called an “employer,” who paid them something called “wages.” In order to compensate for the power imbalance between an employer and an employee, Congress passed the National Labor Relations Act, ensuring employees the right to band together and bargain collectively about wages and other conditions of employment as the key to setting fair, socially stable wages and working conditions.
And then it all fell apart.
Globalization placed enormous pressure to decrease the costs of production in the United States, as countries around the world bid for jobs and investment by lowering the costs of labor, eliminating safety regulations, and polluting the environment. An identical state race to the bottom had begun in the United States during the Great Depression, leading to the enactment of nationwide floors. There is at present no mechanism for setting worldwide floors, although one could be created by treaty.
A worldwide race to the bottom caused huge numbers of union manufacturing jo
bs to disappear overseas, a casualty of rock-bottom labor costs and lax regulation in foreign countries, leaving Americans working in an economy increasingly devoted to the delivery of services. The union movement collapsed, except for government employees. Hours of work in service industries such as retail and fast food shrank and became increasingly erratic as employers juggled work schedules to meet fluctuating demand and sought to avoid regulatory thresholds.
The idea of long-term employees tethered to a single employer was displaced by the “gig economy,” consisting of large numbers of workers performing defined tasks for one or more employers without ever attaining the protected status of an employee. Think of drivers for Uber or Lyft. Once, they would have been employees working for a taxicab company, entitled to significant, hard-won legal protections such as a minimum wage and the right to bargain collectively on wages and working conditions. Under the gig economy, though, they have devolved into something called “independent contractors” performing a compensated service for Uber and Lyft, but without most of the protections carved out for employees in the old economy.
Much of the business plan of Uber and Lyft is based on the decreased labor costs incurred by shifting its workforce from employees to independent contractors. Unlike true employees, who (at least theoretically) can bargain collectively, gig employers deal individually with each independent contractor on a take-it-or-leave-it basis, free from any risk of collective action.
Not surprisingly, faced with wage competition from abroad, denied the ability to engage in collective action to raise wages or improve working conditions, and severed from the hard-won legal protections available to employees but not to independent contractors, the substantial slice of the American labor force working in the gig economy has taken it on the chin for decades, with wages stagnating and working conditions deteriorating while employers earn large profits.
When at Times the Mob Is Swayed Page 24