Litigation v. Politics

The Trump Administration appears committed to crush any and all opposition by the aggressive use of national power. Some of the opposition comes from states themselves that are controlled by Democrats. Given the constitutional – and therefore legal – status of federalism within the United States, which can be defined as the presence of at least some measure of significant state autonomy protected against national control, these attempts at control from Washington – and the pushback from at least some states – are provoking a wave of litigation. Lawyers are understandably attentive to the legal arguments made by the Trump Administration and its opponents. However, it is also important to pay attention as well to the political means by which states can engage in resistance – or what Gerken and Pozen have called “uncooperative federalism”. A major issue of the moment is whether the Texas Legislature will adhere to the strong demand by Donald Trump that it redraw the legislative districts; and whether Democrats within the state will succeed in their defiance.

Constitutional doctrines and political winds

Against the backdrop of the Trump Administration’s efforts to centralize the system, some states are claiming the presence of constitutionally protected state autonomy against national intervention. It is far too early to tell how successful this litigation will be, not least because the United States Constitution, at least since the New Deal, has been interpreted in a way decidedly friendly to national power. To be sure, the ever-more-conservative Supreme Court has, since the 1990s, developed – many academics would say “invented” or “fabricated” – readings of the Constitution that are state-protective. In 1992, for example, the Court, in a bitterly contested 6-3 decision, established the “anti-commandeering” principle that prevents the national government from forcing state officials to enforce federal law. The case involved a federal law that required New York State to “take title” to low-level radioactive waste if the state had not otherwise arranged for the disposal of such waste produced by private companies. The principle was reaffirmed in a similarly divided Court in Printz v. U.S. (1997), which invalidated a federal law requiring state police officials to provide information about individuals who wished to purchase handguns. At the time both were viewed as major victories for conservatives, given that both laws were viewed as “progressive”. Today, however, the “anti-commandeering principle” is gladly embraced by liberal opponents of the Trump Administration eager, for example, to enlist state police into enforcing what are viewed as Draconian national immigration laws being used to deport thousands of long-time residents of the United States.

Still, these decisions, and other such conservative attempts over the past thirty years to limit the reach of national power – by, for example, cutting back on what seemed the limitless reach of congressional power to regulate interstate commerce in the 2012 Sebelius decision on “Obamacare” – pale before the continued legal authority of national officials recognized by even the contemporary Supreme Court. Even Sebelius went out of its way to assure its readers that it is not mounting a full-scale assault on the New Deal era of the 1930s and its wide grant of authority to Congress – that is, the national legislature – to legislate.

There is also at the present time much litigation about the authority of the President to invoke executive power in order to shape state decision-making even in the absence of clear authorization by Congress. Much of this litigation involves the clarity of so-called “delegated power” from Congress to the Executive Branch. Unequivocal delegation is likely to be upheld, even if sometimes described, as Justice Cardozo did in the 1930s, as “delegation run riot.” But what about more ambiguous statutes? Whether the courts will refrain from endorsing presidential claims to delegated authority is often more important than arguments of his direct constitutional power under Article II of the Constitution.

Again, one finds what one might regard as the opportunistic use of legal doctrine as political winds shift. The conservative Court during the Biden Administration created the “major questions doctrine” as a means of limiting the power of the so-called “administrative state” and the Executive Branch. According to this doctrine, the Court should not infer the ability of the Executive to adopt “major” policies that cannot be traced quite clearly to authorization by Congress. Political liberals (rightly) viewed this as a way by which conservatives attacked by-and-large liberal (or “progressive”) programs implemented by the Executive. Now, however, as the Executive has been captured by a radically transformative Trump Administration, opponents of the Administration are more than happy to invoke the “major questions doctrine” as a way of forestalling certain national programs generated from the White House instead of backed clearly by Congress. But this concerns what we may refer to as “horizontal separation of powers” – the division of competence between the President and Congress with regard to the assertion of national power against states. It is the more fundamental “vertical separationism” that constitutes federalism, i.e. the division of competences between states and the national government. After all, if one takes that truly seriously, then there are limits even on what Congress could require, whether from states or even from individuals within the states, and these remain difficult to discern.

The role of the Supreme Court

Within the United States, there will always be much litigation about the constitutional division of powers between the national and sub-national governments. And the outcomes of such litigation will inevitably depend on the results of elections and the ability of presidents to appoint to the Supreme Court new justices who share their overarching constitutional visions. That has certainly been the case with the triumph of Donald Trump in 2016. Perhaps his most brilliant campaign gesture was announcing a “list” of potential nominees to the Supreme Court, who would presumably be willing and able to transform significant aspects of the “New Deal” – i.e. strong nationalism – and “Civil Rights Era” – i.e. progressivism – jurisprudence that had been thought to be “settled.”

That has in fact occurred, though in interestingly different directions. The Court, in overruling Roe v. Wade, which had nationalized the protection of at least some degree of reproductive choice, including abortion, for women, ostentatiously embraced the importance of federalism and, therefore, local decision-making. As with capital punishment, for example, states should have a wide berth in deciding on fundamental issues of life and death. So, score one – or two – for “constitional federalism” that leaves states with a great deal of autonomy with regard to truly important issues. Yet the same ostensibly conservative coalition upended gun control laws in the fifty states by adopting a one-size-fits-all interpretation of the Second Amendment that protects the citizenry’s right to “keep and bear arms.” The Court went so far as to suggest that even otherwise reasonable state regulation is unacceptable if not similar to regulations found in the United States of 1791. So, there: score one for what many would regard as a literally incredible rejection of quite different states to make their own decisions about the degree to which the “right to keep and bear arms” should be regulated. Indeed, the conservative federal circuit judge Frank Easterbrook wrote a notable opinion in 2010, upholding a Chicago law limiting access to firearms, by emphasizing the desirability, at least for believers in federalism, of localities to make their own decisions based on their own circumstances. It was that decision, though, that the United States Supreme Court overturned, this time in a bitterly divided 5-4 decision.

Reliance on legal formalism – i.e., limits rooted purportedly in the Constitution itself or even on doctrines elaborated by the Supreme Court and therefore supported by precedent – has proven to be a weak reed with regards to delineating the reach of national authority in the United States. Some precedents, like Roe v. Wade, are simply being overturned. Other new doctrines, such as the “major questions doctrine,” are being created, with no genuinely ascertainable parameters other than the views of give judges as to what is sufficiently “major” to cripple federal agencies.

Uncooperative Federalism

At least as important, therefore, are the political realities of a polity consisting of flourishing sub-national units with locally selected leaders enjoying the support of their electorates, who are often bitterly opposed to those attempting to exercise power from Washington. States retain immense practical authority over much of American legal and political life, not least because of this electoral independence from national institutions. Scholars such as Heather Gerken and Jessica Bulman-Pozen, as devotees of what has come to be called the “new federalism,” reject constitutional federalism and, therefore, cast doubt on at least some litigation. Instead, they emphasize the ability of states to use their own political powers to resist what they perceive as unwise, perhaps even immoral or evil, national policies. They call this “uncooperative federalism”.

This type of federalism is manifested in today’s America particularly with regard to reactions to the Trump Administration’s draconian attempt to deport undocumented aliens by aggressive use of what may in fact be valid national laws. A number of states – and cities – have declared themselves “sanctuaries” against oppressive national law. In theory, at least, this means that immigrants who are being pursued by the national government ought to be able to feel at least somewhat more safe in such “sanctuaries” because of the knowledge that state officials will not cooperate with the national government. Although the states or cities in question are certainly willing to offer legal arguments in their support, far more important is the actual level of political support they receive. Although the Trump Administration is busy trying to hire thousands of new employees for ICE – the United States Immigration and Customs Enforcement agency – that will take both immense sums of money and time to train them. In the meantime, for example, California (and Los Angeles, the country’s second-largest city) have both made it completely clear that they have no intention of cooperating in any way with federal demands. President Trump, very controversially, nationalized the California National Guard in order to aid ICE in enforcing presidential dictates. Courts have split on the constitutionality of Trump’s action; the Supreme Court has not weighed in. In the meantime there is only acrimony from both sides. The Trump Administration finds it far more difficult to achieve its policy goals; the oppositionist states are frustrated by the necessity to tolerate the presence of mask-wearing ICE enforcers who are described by some of their opponents as an American Gestapo.

The clear limits of litigation

One doesn’t have to believe that litigation – based on the constitutional parameters of federalism – is irrelevant. Liberals are cheering a number of judicial decisions from so-called “inferior” courts upholding claims that the national government is overreaching by, for example, trying to force states to deny transgender women the ability to compete in athletic events. The Supreme Court has taken two such cases, one from Idaho, the other from West Virginia, and will presumably decide them next year. But such losing litigation often serves the purpose of building political movements supporting the underlying opposition to the national government. Thus, for most liberals today, far more hope is being directed at the upcoming 2026 elections, where every member of the House of Representatives and a third of the Senate will be running for re-election than on the prospects for winning great victories before a Supreme Court composed of six political conservatives, three of whom were appointed by Donald Trump.

A major issue of the moment, especially for those of us who live in Texas, is whether the Texas Legislature will adhere to the strong demand by Donald Trump that it redraw the legislative districts by which representatives to the United States House of Representatives are elected in a way that will guarantee the election of five additional Republicans and thus help to maintain the Republicans’ fragile hold on the House. (This, of course, is an illustration of what some might describe as his own “will to power.”)  The Constitution assigns a great deal of authority to states in constructing their electoral systems, including the design of the single-member districts that a congressional law passed in 1842, and not the Constituiton itself, requires. The Supreme Court has declared that so-called “partisan gerrymandering,” aptly described by Sam Issacharoff and Alex Aleinikoff some years ago as allowing representatives to choose their voters rather than the converse, is “non-justiciable.” There is, then, no real incentive of political partisans to adhere to the “forbearance” that Harvard professors Steven Levitsky and Daniel Ziblatt, in their book How Democracies Die, described as essential to maintaining a liberal constitutional order in a pluralistic society.

Democratic members of the legislature have fled to Illinois, New York, and other states in order to deprive the legislature of the necessary quorum to pass the legislation. But Democrats are also encouraging the legislatures of Democratic states in effect to retaliate by similarly partisan redrawing of their own legislative districts in a way that will neutralize whatever the Texas legislature finally does. There is no doubt, for example, that Texas Governor Greg Abbott, a rabid supporter of Donald Trump, can keep calling “special sessions” of the legislature until the Democratic opposition is worn down or, as he is currently trying to do, they are deprived of their seats for failure to meet and carry out their duties as “representatives.” This is a mixture of what Mark Tushnet labeled “constitutional hardball” – the maximum use of arguable legal authority to achieve partisan goals – and the political dimensions of the American federal system that can be used to engage in what some would describe even as warfare.