Republicans won the House in 2010 mid-term election, retaining the House in 2012 and claiming the Senate in the 2014 mid-terms. The Republicans continued their climb back to power in 2016 by retaining the House and Senate and adding the Presidency as Donald Trump won a resounding electoral college victory claiming 30 states. Though he lost the popular vote, President Trump moves into 2017 with a populist victory, a conservative agenda and control of the Congress to roll back President Obama's liberal policies.

Federalism for the Left and the Right

from The Wall Street Journal,

People across the political spectrum are turning to states and localities to deal with contentious issues such as immigration, law enforcement and education.

President Donald Trump has issued a series of controversial executive orders on immigration that are now tangled up in federal courts. Judges in Hawaii and Maryland have blocked the president’s ban on travelers from six mostly Muslim countries, and another judge in Seattle has blocked his executive order threatening to remove federal funding for “sanctuary cities” that refuse to cooperate with federal immigration agents.

If this contest between branches of government sounds familiar, it should. President Barack Obama also tried to use executive orders to push through his own very different immigration policies, and he was similarly rebuffed by the courts. They held that he lacked the unilateral authority to shield millions of undocumented immigrants from deportation. There’s a lesson in the symmetry of these two examples, and figures from across the political and ideological spectrum are increasingly embracing it: Many of the issues that recent presidents have tried to decide at the national level through executive orders are best resolved at the state or local levels instead. In an era of fierce partisan divisions, all sides are beginning to see the virtues of our federal system in accommodating differences—and encouraging experimentation—on issues such as immigration, law enforcement and education. Federalism has long been a cause on the right, but now it’s just as likely to be a rallying cry on the left. Rep. Zoe Lofgren, the top Democrat on the House Judiciary’s immigration and border-security subcommittee, recently said: “The Constitution, specifically the Tenth Amendment, protects states’ rights, and it prohibits federal actions that commandeer state and local officials. When it comes to immigration, these principles seem to be overlooked.” The framers of the Constitution would be pleased with this emerging consensus. By creating a national government with limited powers, they intended to allow the states and local governments to pursue a range of different policies on matters within what used to be called their “police powers”—that is, their authority to regulate behavior, maintain order and promote the public good within their own territory. The founders considered this arrangement the best way to protect liberty and diversity of opinion, as well as to defend political minorities from nationalist tyranny and concentrated power.

Of course, from the earliest days of the republic, the framers debated what form this division of powers would take. Alexander Hamilton famously urged the national government to assume more powers and to assert them aggressively against the states. Thomas Jefferson (and his close ally James Madison) resisted this centralizing impulse, pointing to the rights reserved to the states under the Tenth Amendment and the limits on congressional power. This debate has defined the boundaries of constitutional argument since the Founding era, but it doesn’t map neatly onto partisan politics, then or now. Throughout American history, Hamiltonians and Jeffersonians have come in many forms, left and right, and they have often found broad areas of agreement on issues of federalism, if sometimes for different reasons. Consider, for example, the Supreme Court during the Progressive era. Under Chief Justice William Howard Taft, who served from 1921 to 1930, justices from across the ideological spectrum upheld limits on federal power. Justice Louis Brandeis, a proud Jeffersonian, famously praised the states as laboratories of democracy. As he wrote, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Today, as during the Progressive era and the long resistance of the South to national efforts to end segregation, the embrace of federalism and states’ rights can be opportunistic, even cynical. The current rediscovery of states’ rights on the left is driven, in some instances, by the election of Mr. Trump and the fact that Republicans now control both houses of Congress. The states are their last enclaves of resistance. For their part, conservatives often invoke the Constitution’s Tenth Amendment, which says that powers not given to the national government are “reserved to the States, or to the people,” but they haven’t been consistent defenders of federalism either.

All postwar presidents have tended to amass federal power rather than to devolve it. And opposition parties have always defended states’ rights as a way of protecting dissent and their own policy agendas. At the same time, the courts have increasingly repudiated attempts by presidents—from George W. Bush and Barack Obama to Donald Trump—to use executive orders to implement policies that they can’t persuade Congress to enact. Today’s effort to revive federalism acknowledges and builds on these institutional and political realities. What does it mean in practice? Immigration is a good place to start, since at first glance it might seem like an obvious area of far-reaching federal control. But the Constitution’s grant to Congress of the power to establish a “uniform rule of naturalization” leaves a great deal of room for local variety.

In a 2014 article in the journal Democracy, Cristina Rodriguez of Yale Law School argued that leaving key immigration decisions to the states needn’t be “scary” to progressives. Some border states might stress enforcement, she pointed out, but other states would be free to adopt more permissive policies. She pointed in particular to a bill signed in 2013 by Gov. Jerry Brown of California that constrained police in the state from cooperating with federal immigration agents. It is a precedent with particular force today, as California and other Democratic states have moved to resist the Trump administration’s immigration crackdown. Some conservatives also have favored a decentralized approach to immigration.

Meanwhile, states have other options, which they have been exercising since well before the Trump administration. A 2014 article in National Journal by Andrew Wainer and Audrey Singer noted that the previous year had seen a 64% increase in proposed or enacted local and state laws on immigration. They pointed, for example, to a proposal by Gov. Rick Snyder of Michigan, a Republican, to attract 50,000 high-skilled immigrants to Detroit. A more expansive variation on this theme is now being promoted by Sen. Ron Johnson of Wisconsin and Rep. Ken Buck of Colorado, both Republicans. As they told an audience at the libertarian Cato Institute in early May, states should be able to hand out thousands of guest-worker visas to the recipients whom they consider most deserving. Policing is another area where federalism could have a salutary effect.

Less federal interference in policing may lead to better policy in the long run. Policing has always been a state rather than a federal responsibility, and the most innovative new strategies in law enforcement have come from localities dealing with practical problems on the ground. The next wave of reforms—on issues like eyewitness investigation and the videotaping of police encounters with citizens—will emerge from the many different ways in which police departments and city and state legislatures try to strike the right balance between privacy and public safety. Or consider education, another area traditionally left to the states. Here the Trump administration has struck a blow for federalism by launching a review of Obama-era regulations and guidance for school districts. The executive order directs Education Secretary Betsy DeVos to modify or repeal measures that she considers to be federal overreach. “For too long, the government has imposed its will on state and local governments. The result has been education that spends more and achieves far, far, far less,” Mr. Trump said in announcing the order. Trump critics such as former Gov. Jeb Bush of Florida have been pleased.

These moves away from federally imposed priorities also have won the support of liberals in recent years. During the Obama administration, California’s Gov. Brown, for example, was a strong critic of national testing standards, telling a group of technology leaders in 2013 that they were “just a form of national control.” A more controversial aspect of education policy is the recent debate over bathroom policies for transgender students. In this area, there is vigorous disagreement about how to read the federal civil-rights law. Neither Mr. Obama nor Mr. Trump has been able to get Congress to address the issue, and both tried to do so through executive action. The Supreme Court may ultimately decide whether federal law supports one side or the other. Meanwhile, assuming that Congress continues to ignore the issue, it will percolate at the local and state level, as it should.

It’s hard to know what form the new dispensation on federalism might take in the years ahead, especially if the Supreme Court returns more prerogatives to the states. But a preview of sorts can be seen in a recent online discussion sponsored by the National Constitution Center (which I direct). For the libertarian legal scholar Randy Barnett of Georgetown University, a principled return to federalism offers the possibility of “keeping social issues local” and avoiding “a war of all against all.” As he observes, “A rich diversity of preferred lifestyles can only be achieved at the local level.” Elevating such issues to the national level is a recipe for “more contentiousness, bitterness, and ‘gridlock.’ ” For her part, Heather Gerken of Yale Law School, the leading advocate of “progressive federalism,” argues that in contested areas ranging from health care to the environment, the states and federal government govern best when operating shoulder-to-shoulder. “Take a look at telecom, the AFDC [antipoverty program], Medicaid, drug enforcement, workplace safety, health care, immigration, even national security law,” she writes. “In these integrated regulatory regimes, the states and federal government have forged vibrant, interactive relationships that involve both cooperation and conflict.” A respect for federalism and state autonomy is perhaps the only way that all sides can peacefully coexist in today’s political environment. With dysfunction now reigning on Capitol Hill and federal courts increasingly ready to strike down the unilateral action of presidents, Americans will at least be able to take some comfort in local autonomy and control. In these polarized times, citizens who strongly disagree with each other may be able to unite around the goal of making federal power less intrusive and national politics less of a contest where the winner takes all.

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