With A Republican in the White House, Democrats Rediscover the Virtues of Federalism

Give the Republican Party control of the White House and Congress, and it's only a matter of time before Democrats discover the virtues of devolving authority to state and local governments.


"An illegal assault on states' rights" is the phrase that the attorney general of Massachusetts, Maura Healey, is using to describe the Trump administration's effort to strike down California's strict standards for automobile emissions.

Healey and about two dozen other state attorney generals sued the Trump administration to try to get Washington to leave the states alone on this matter.

This is amusingly satisfying in so many ways that it's hard to know exactly where to start, but perhaps the best place is with an "I told you so."

The month Trump was elected, back in 2016, I wrote in a column for the Las Vegas Review-Journal, "It took an election that gave the Republican Party control of the White House, the Senate and the House of Representatives, but at long last the American left is starting to discover the virtues of devolving authority to state and local governments."

Then, back in August of 2018, I wrote, "Could California's liberal Democratic attorney general end up asking conservative justices on the U.S. Supreme Court to strike down the federal Clean Air Act as an unconstitutional infringement on states' rights? It sure looks as though things are headed in that direction."

The lawsuit by Attorney General Healey and the other state attorneys general, including California's Xavier Becerra, was filed September 20, 2019, in U.S. District Court for the District of Columbia.

Healey's precise phrase—"states' rights," rather than federalism or devolution—has its own historical echoes. Hearing it come from Healey—a proudly progressive Massachusetts Democrat—is downright humorous, given that the New York Times has been busily assuring readers that the concept of states' rights is racist. A Paul Krugman column over the summer described the term as a synonym for a racial slur. As part of the Times' "1619 Project" documenting the long-lasting effects of slavery, columnist Jamelle Bouie attributed the concept of states' rights to John Calhoun, a senator from South Carolina who "was a deep believer in the system of slavery … and a committed advocate for the slave-owning planter class." Bouie writes, "Calhoun's idea that states could veto the federal government would return as well following the decision in Brown v. Board of Education, as segregationists announced 'massive resistance' to federal desegregation mandates and sympathizers defended white Southern actions with ideas and arguments that cribbed from Calhoun and recapitulated enslaver ideology for modern American politics."

Perhaps what's most comical about the situation is how brazenly unprincipled and inconsistent both political parties are when it comes to the question of what should be decided in Washington versus what should be decided in state capitals. If this were a Democratic president trying to impose stricter environmental rules on polluting states, the Maura Healeys and Xavier Becerras of the world would be on the side of Washington. When it was the Obama administration trying to set state Medicaid policy, Republicans were skeptical of centralization and top-down mandates from Washington.

As Ronald Brownstein drily observed in The Atlantic, "While Democrats and Republicans both claim to revere the principle of states' rights, each side, while occupying the White House, has at times leveraged federal authority to override state decisions."

The best way for President Trump to underscore that point would be to offer to settle the case, which is known as California v. Chao. (The plaintiff states are listed alphabetically, so California is first, and the defendants, also listed alphabetically, include the secretary of transportation, Elaine Chao.) He could say that he'd agree to let California and Massachusetts set their environmental rules as strict as they want to—so long as the attorney generals agree that the next time a Democrat controls the White House, then Texas, Kentucky, West Virginia, North Dakota, and other energy-producing states can set their environmental rules as loose as they want to.

If states are going to have rights in any meaningful sense, those rights have to exist independent of which party controls the White House, rather than disappearing when the Democrats are in power in Washington and magically reappearing when Republicans take over.

Certain inalienable individual rights are protected by the federal Constitution. In the Declaration of Independence's view, those rights come from the Creator and don't depend on what state one happens to live in. But for other matters, like auto emissions policy, letting local authorities decide makes a lot of practical and theoretical sense.

The automakers and their Washington-based lobbyists sometimes prefer a single national standard for simplicity's sake. That's worth weighing, but it's not dispositive.

Proponents of national standards also argue that pollution in one state may affect air quality, water quality, or even climate, in another state. But there are other ways to address those issues.

The problem with national standards is that when a president or a Congress wants to ratchet them up or roll them back, it affects the entire country, including parts that would prefer a different policy. Healey works in Boston, where, when history of fighting off rules imposed from faraway capitals is discussed, minds turn not to John Calhoun but to John Adams and John Hancock.

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  1. “With A Republican in the White House, Democrats Rediscover the Virtues of Federalism”


    Only when the issue is a local issue that Trump opposes and social liberals support.

    If Reason believes they have discovered principles of some sort and are to be saluted. they are naive if not stupid.

    1. In the time it took to write your comment, you probably could’ve just skimmed the article to see what it said.

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  2. Given that California’s emissions standards could be considered a restraint on interstate commerce. with how they effect how cars are made for the entire country. The Trump administration actions against them may be the proper application of federalism and actual intent of the interstate commerce clause, not letting California do whatever it wants in this regard

    1. Unfortunately I sense Reason is more interested in writing anti-Trump material than in looking for the truth.

      My respect for the magazine is almost down to 0.

  3. “Tony
    September.22.2019 at 2:52 pm
    They never claim to be federalists.

    Republicans do and then they want to tell states they can’t set their own emissions standards”

  4. The flag pictured is racist. Why is it published here?

  5. Democrats have a long history of *pretending* to support states rights.

    When they ran the federal government before the Civil War, they were all about federal supremacy on behalf of slavery, but when they faced the prospect of a President who was not a fan of slavery, not only did they call for states’ rights, they were willing to kill for their version of states rights.

    (In the Confederacy, when some states seemed to take states’ rights a bit too seriously, the Jefferson Davis government pushed back on behalf of nationalism)

    Under Jim Crow, when it came to federal aid to farmers, it was all about federal power, but when it came to federal protection of minority rights, it was all “states rights!” again.

    In short, Democrats have a long and proud history of misrepresenting states’ rights as a one-way ratchet to allow federal oppression while hobbling the feds if they tried to stop *state* oppression.

    The more things change…

  6. Reason is all about federalism. That is why they didn’t want gay marriage forced on all of the states via judicial decree right?

    1. That’s different!

      They love judicial fiat.

  7. The abolition of the electoral college is a major democrat talking point that certainly goes against the main thesis of this piece.

  8. The Left will go with whatever political winds that take them to the most efficient firing squads. For a while maybe it seemed like the Feds were where that was at… not it looks like the state and local level.

  9. As part of the Times’ “1619 Project” documenting the long-lasting effects of slavery, columnist Jamelle Bouie attributed the concept of states’ rights to John Calhoun…

    John Calhoun did not come up with the idea of the states having the authority to declare acts of the federal government unconstitutional, he got the idea from two other virulently racist old dead white men, James Madison and Thomas Jefferson. The guy who wrote the Constitution and the guy who wrote the Declaration of Independence, so you know just how racist they were.

    1. In keeping with the theme of the article here, despite Calhoun’s argument for nullification and interposition in support of slavery, the same argument was used by abolitionists in resistance to the Fugitive Slave Act. So, no principles to see here, merely expediency.

    2. Sure, Calhoun invented states’ rights doctrine. *rolls eyes*

  10. There’s a very apropos quote from Alexander Hamilton that I can’t seem to lay my hands on, about how Thomas Jefferson didn’t want to grouse too much about President Adams’s centralizing tendencies, because Jefferson was an heir who wanted to be sure of inheriting a “good estate.”

    1. More Hamilton baloney. Jefferson cut spending so much (the last president to do so) he did away entirely with internal taxes.

  11. Ask a Republican if it’s OK for states to have safe and legal abortions, equal marriage for gays and lesbians, trans bathroom rights, legal marijuana and physician assisted suicide and you’ll find out that when they say “states rights” they mean “the right to take away your rights”.

    1. This is correct – they are painting with a broad brush. Both parties are guilty of this, dems maybe more than Republicans, and in each party you can certainly find outliers.

    2. I know a lot of Republicans who would take that deal.

      1. Maybe.

        But not enough that they did or will take that deal.

      2. Yep; and here’s another one! Many states have passed legal marijuana and I don’t see the Republicans trying to get federal to tell them they can’t.

        Typical Democrats – always trying to blame everyone else for what they themselves do.

    3. Except what you say makes no sense from a rights perspective. marriage depends on your view of the aim of marriage. Many prefer the state to not be involved at all. Safe and legal abortions is an idiotic talking point. Republicans in general want to protect the dna unique child post 20 weeks like most of the sane world. Nobody has a right to a preferred bathroom dumbfuck. They also dont have a right to invade others spaces based on feels.

    4. Except for the dubious notion that any of the things you mention are actually rights.

    5. I’ll offer what I consider a typical Republican reaponse.
      No to abortions because taking an innocent life is unacceptable.
      Most are done fighting the gay marriage thing, but socially disagree that homosexual marriage is the same as heterosexual. They see it as a slippery slope to incest, polygamy, and even beastiality supporting policy.
      On trans bathrooms, they don’t want dudes in showers and bathrooms with their little girls. If the left wasn’t trying to ram “acceptance” down everyone’s throat then there could be a compromise where everyone is comfortable.
      Legal marijuana is where I strongly disagree with them. They would argue that weed and other drugs destroy personal responsibility and families/communities.
      I have heard a mixed bag on euthanasia. Some argue the sanctity of life and the abuses that can occur allowing the state and others to issue euthanasia orders. I’ve also heard plenty who say a person should be able to end their own pain.
      Ultimately, on all of these issues Republicans I’ve talked to are much more interested in tackling them at the state level rather than forcing their own morality federally

      1. Ultimately, on all of these issues Republicans I’ve talked to are much more interested in tackling them at the state level rather than forcing their own morality federally

        Which is hilarious, because that only became a common position… after they lost at the federal level.

        Folks who only come around to “federalism” once they realize they can’t force something nationally aren’t actually interested in federalism.

  12. Yesterday I saw a Jeep Wrangler with a bumper sticker that had a circle with Don’t Tread On Me printed around it. It had the snake with the police thin blue line. I can’t find a picture of it, but here’s a patch with an identical design.


    So I’m thinking, wtf? Are they telling the cops not to tread on them? Are they telling the rest of the government not to tread on cops? What’s the message here? I don’t get it. If the government starts to tread on you, it’ll be the cops doing it.

    1. Yeah, that’s fucked up. I like the libertarian version that says: “Don’t tread on anyone.”

      1. But that’s not fair to people who want to be trod upon.

  13. Republicans and democrats only “discover” federalism when it becomes an advantage to them.

  14. California was only given the power to legislate more stringent air standards than set by the EPA in the 1970s because of the smog in LA. The attempt by California to set mileage standards is not part of that carve-out, having nothing to do with air-quality. It is in fact an attempt by the state to legislate national standards.

  15. Rules for cars obviously affect interstate commerce, because you drive cars on the interstate. California can’t just go their own way. Or stop thinking about tomorrow, for that matter.

    1. I say — let them dig their own grave!! Have their legislation export all vehicles except bicycles. Sometimes really stupid people have to learn the hard way or just kill themselves from their own stupidity.

  16. This reminds me of how liberals suddenly gained a lot of trust in our intelligence agencies…as long as those agencies were reporting stuff that made Trump look bad.

    1. Liberals, in contrast to conservatives, don’t resort to black-and-white thinking at every opportunity. Intelligence agencies can do both good and bad. We were upset about the bad stuff. I don’t want to blow your mind at the introduction of the concept of nuance.

      1. And what a coinky dink…when its bad stuff about Trump they are doing good work.

  17. And in four to eight years, we’ll have an article titled “with a Democrat in the White House, Republicans rediscover the virtues of federalism/fiscal conservatism/whatever”.

    If this kind of opportunistic hypocrisy is a lesson you still need to learn, and you aren’t a college student or lower, then you’re probably a partisan for life who will never have the introspection and self-reflection necessary to be a fully thinking adult.

  18. Repeal the 17th

    1. Probably end up being about as successful as trying to enforce Article I, Section 8 (the enumerated powers).

  19. California should have the right to legislate just as stupid as they want.. BUT unless manufacturers are in California; they shouldn’t have even a speckle of motivation to abide by California’s stupidity. They already do this with gas generators – The CA models cost twice as much as any other state.

  20. California — (2020) –> (2021) –> (2022) ===== Looks like Detroit.

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