Trump’s tumultuous presidency reminded us yet again why the rights of the states need to be protected against an encroaching federal government. In only 4 years, the states sued his administration 138 times, far more than any other president.
Where to draw the line between the powers of the federal government and those of the states has been a major issue in American politics from day 1, with the debate being just as fiery today as it was in the beginning. The Trump administration’s abuse and/or misuse of power, though, made it clear why the founding fathers gave the states enough power to stop the federal government in its tracks.
These are the 9 examples where the states stood up to the Trump administration’s overreach: election meddling, preventing investigations, rolling back environmental protections, creating callous immigration policies, removing protections for transgenders, bullying governors during the pandemic, deploying federal agents in Portland, targeting marijuana laws, and shielding for-profit universities. In all of these examples, state governments stopped Trump and/or his allies just as the founding fathers intended.
First, a Quick Civics Lesson
The debate on how to separate federal and state powers began during the Revolutionary War, while the 13 original colonies fought for their independence from Britain. At the Second Continental Congress in 1777, state delegates debated and drafted the Articles of Confederation and Perpetual Union, and, in 1781, state governments ratified the document, making it the law of the land. This document gave Congress the authority to maintain an army, make treaties, and to coin money, all of which were wartime necessities. However, in subsequent years, it became apparent that the national government didn’t have anywhere near enough power to handle the many challenges of the young country, particularly the authority to levy taxes and regulate commerce. Shays’ rebellion highlighted the federal government’s inadequacy because it couldn’t pay for troops, with the rebellion having to be put down by state and local soldiers.
This prompted many to push for a new founding document, in which the power of the federal government would be heavily expanded. In 1787, during the Constitutional Convention, state delegates drafted the US Constitution, giving the federal government very specific powers over the states, known as the enumerated powers, found in Article I. The seminal document was ratified in 1789. Amendments were eventually passed to ensure this power was kept in check. Despite this, the push and pull between the federal government and the states is never ending, as the provisions below are open to interpretation.
The provisions recognizing states’ rights:
The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Many of the state delegates were not happy with Constitution, as they believed it was not specific enough in regards to the rights of people. They agreed to ratify the founding document on the promise that a Bill of Rights would be passed, in which basic liberties would be clearly listed. However, some objected because, as Alexander Hamilton put it, a Bill of Rights “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” In other words, he feared it would tip the balance of power towards the federal government. The solution was the 10th Amendment, which makes it abundantly clear that the powers of the federal government are limited to only what is listed in the Constitution. All other powers are left to the states and their residents.
Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.” This means the power to alter the Constitution was given exclusively to state legislatures, 34 to call the convention and 38 to ratify a new amendment. So far, only 27 amendments have been agreed upon, the last one being in 1992.
The 11th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The meaning of this amendment is ambiguous, but in this context lawyers and scholars have generally interpreted it to mean that federal courts cannot hear cases against a state because they have sovereign immunity unless the state consents. However, parts of a state, such as government officials and departments can be sued.
The provisions limiting states’ rights:
Article VI (“The Supremacy Clause”): “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” In Federalist №33, James Madison explained that the federal government holds power over the states and their residents only in matters specifically mentioned, and, “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
Article I, Section 8 (“The Commerce Clause”): This gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” On the surface, this authorizes Congress to impose tariffs on foreign goods, enter into trade agreements with foreign nations, resolve disputes between states, and to ensure smooth interstate commerce. This also means states have limited ability to regulate their own commerce, as the Dormant Commerce Clause dictates that “states cannot discriminate against interstate commerce nor can they unduly burden interstate commerce, even in the absence of federal legislation regulating the activity.”
Article I, Section 8 (“The Necessary and Proper Clause”): This gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Also called the “Sweeping Clause” or the “Elastic Clause,” this is considered by some to be the most important and controversial part of the Constitution, as it is the source of the majority of federal laws due to various interpretations of the word “necessary.”
Article I, Section 10: “ No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility… lay any Imposts or Duties on Imports or Exports… lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. “ Seemingly just a list of prohibitions for the states, these are necessary to create a coherent nation, as previously the states operated more or less independently. Instead, this provision gives such powers exclusively to the federal government. This provision has also been in the crosshairs of numerous Supreme Court lawsuits, particularly the “Obligation of Contracts” part.
The 14th Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In the wake of the Civil War, the 13th, 14th, and 15th Amendments were passed, together called the Reconstruction Amendments. The 13th made slavery illegal, the 14th prevented states from depriving people of their rights, and the 15th forbid racial discrimination in elections. However, the 14th Amendment has been the subject of several Supreme Court cases, particularly the “due process” clause.
The above Constitutional provisions have been used to advocate for both sides of the states’ rights debate. Though, the case for states’ rights has faltered over the years, as the power of the federal government has expanded mainly through the use of the commerce clause and the necessary and proper clause. However, the presidency of Donald Trump has made it clear why states’ rights need to be preserved.
Trump demonstrated his willingness to play dirty during and after the 2020 election, and, if not for states’ rights, he could have done significant damage.
The power of the president has grown substantially due to the Unitary Executive Theory, in the which some lawyers have successfully argued that Article II of the US Constitution gives the president absolute control over the executive branch. Trump used this power to put Republican donor Louis DeJoy in charge of the US Postal Service, which had 711 high-volume sorting machines removed in the months leading up to an election with record numbers of mail-in votes, the majority of which were expected to support Biden. Trump also left the Federal Election Committee impotent, as he refused to fill committee seats, meaning they were unable to properly regulate the election. Likewise, Trump installed loyalist John Ratcliffe as the Director of National Intelligence, whose job it is to oversee the intelligence committee, the entirety of which agreed that Russia meddled in both the 2016 and 2020 elections. However, both Trump and Ratcliffe refused to acknowledge and prevent it.
Furthermore, when it became clear that Trump had lost the election to Biden, he tied up the courts with numerous lawsuits claiming the election was fraudulent. Judges threw out nearly all of these due to lack of evidence. He is also consistently attacking press outlets that don’t support his narrative, making disputed or outright debunked claims, undermining experts that disagree with him, etc. Lindsey Graham, one of Trump’s most outspoken supporters, called Georgia’s Secretary of State to ask him to find ways to throw out legal votes while the state was in the middle of a recount.
All of this demonstrates Trump and his allies’ willingness to win at any cost. Thankfully, though, the president and his supporters in the federal government can do very little to control an election, as choosing the president is firmly in the hand’s of the states. Article II, Section 1, Clauses 2 and 3 of the Constitution spells out the Electoral College, which has been the source of controversy since the beginning. Even today, there is a growing movement to abolish it. However, imagine what Trump and his allies could have done if the election was not protected by the states.
A lawsuit filed by New York, New Jersey, and Hawaii against Louis DeJoy and the USPS claims “The United States Postal Service has been thrown into chaos. Thanks to a series of sweeping policy changes beleaguered by partisan meddling, the independent agency has become a political football set to undermine a federal election.” This again demonstrates the power the states have to keep employees of the federal government from abusing their power.
Trump, his organization, and his allies are not immune from investigations because state attorneys general do not answer to the US Justice Department.
Perhaps the most important of these investigations is New York’s Attorney General Letitia James’ investigation into the Trump Organization allegedly inflating the value of some assets to save money on loans and insurance, while deflating the value of others to avoid real estate taxes. In particular, the investigation focuses on 4 properties: the Seven Springs Estate, 40 Wall Street in Manhattan, the Trump National Golf Club in LA, and Trump International Hotel and Tower in Chicago. James claims “For months, the Trump Organization has made baseless claims in an effort to shield evidence from a lawful investigation into its financial dealings. They have stalled, withheld documents, and instructed witnesses, including Eric Trump, to refuse to answer questions under oath.” The investigation is also looking into Trump’s former lawyer Michael Cohen.
Likewise, Letitia James charged Wayne LaPierre and three other seniors managers with “taking millions of dollars of allegedly undisclosed compensation from the NRA and its vendors, in the form of free yacht trips, private jet flights for his family, exotic safaris and other benefits.” These allegations are based on 18 months of investigating. The National Rifle Association is a major donor to Republican candidates, and in the 2016 election contributed over $30 million to the Trump campaign.
Furthermore, Steven Bannon, Trump’s former lead strategist, has been charged with diverting over a million dollars to himself from his fundraising campaign “We Build The Wall.” The lawsuit alleges that he and 3 others misled donors into thinking that all of the money would go towards building a wall on the border with Mexico. The indictment said that one of the others being indicted “spent some of the over $350,000 he received on home renovations, payments toward a boat, a luxury SUV, a golf cart, jewelry, cosmetic surgery, personal tax payments and credit card debt.”
All of these lawsuit are outside the jurisdiction of the federal government. If the power to investigate was held only with the federal government, these investigations would likely never have happened, as Attorney General William Barr has already proven himself willing to go along with Trump’s agenda, as shown by his selective redaction of the Mueller Report.
Rolling Back Environmental Protections
The states also pushed back against the Trump administration’s attempt to limit their rights to set their own environmental standards.
For example, 23 states have sued the Trump administration over not allowing California to set their own emission standards for cars and trucks, which many other states use as a guideline. The National Highway Traffic Safety Administration issued a regulation that was designed to subvert this ability, which had been granted to them since the 1970s, to which California’s Attorney General Xavier Becerra responded “President Trump should have at least read the instruction manual he inherited when he assumed the presidency, in particular the chapter on respecting the rule of law.”
Becerra also filed a lawsuit with 21 states that alleges Trump’s Environmental Protection Agency has limited their ability to protect their water quality. The lawsuit, which is headed by California, New York and Washington state claims, “that the regulation changes violate the federal Clean Water Act and decades of legal decisions and administrative precedent.” The states claim that their ability to review, put conditions on, or even block federal projects like oil pipelines has been substantially hindered.
The State of Colorado is also suing Trump’s Bureau of Land Management for planning to increase mining, drilling, and fracking on public lands. The lawsuit claims the Trump administration is “pursuing a land-management plan for fossil fuel development that ignored environmental risks to agriculture, climate and endangered species.”
Trump’s lack of concern for the environment is well-document. The New York Times created a list of more than 100 policies the Trump administration rolled-back or tried to roll-back. If Trump had more control-if the states didn’t have their own EPAs-it is safe to assume that his environmental damage would have been even more severe.
Creating Callous Immigration Policies
The states have unleashed numerous lawsuits against the damage created by Trump’s immigration policies.
First, in March 2017, 17 attorneys general sued to stop Trump’s executive order 13769 because it “negatively impact universities and medical institutions, has a depressing effect on tourism — causing lost tax revenue — and amounts to an anti-Muslim order.”
Second, 15 states sued to prevent the Trump administration from ending the Deferred Action for Childhood Arrivals program, which protects children of illegal immigrants from deportation. The lawsuit claimed “Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments — whether personally held, stated to appease some portion of his constituency, or some combination thereof — to punish and disparage people with Mexican roots.”
Third, thousands of children have been separated from their parents along the border under the Trump administration. 17 states sued to stop the practice. New Jersey Attorney General Gurbir Grewal said “Every day, it seems like the administration is issuing new, contradictory policies and relying on new, contradictory justifications. But we can’t forget: the lives of real people hang in the balance.”
Fourth, 16 states sued Trump to prevent him from diverting funds towards his border wall. When he could not get the funding from Congress, Trump declared a national emergency, which allowed him to redirect funding. Becerra said, “We’re suing President Trump to stop him from unilaterally robbing taxpayer funds lawfully set aside by Congress for the people of our states.”
Fifth, in the middle of 2020, in midst of the Covid-19 pandemic, the Trump administration deprived international students of their visas if they continued university online, prompting many including university leaders to accuse the administration of trying to force campuses to reopen. 17 states sued to reverse the policy. Harvard and MIT filed their own lawsuits as well. Massachusetts Attorney General Maura Healey claimed “The Trump administration didn’t even attempt to explain the basis for this senseless rule, which forces schools to choose between keeping their international students enrolled and protecting the health and safety of their campuses.”
If it wasn’t for the states keeping the Trump administration in check, what other ill conceived immigration policies would he have tried to get away with?
Removing Protections for Transgenders
One of the provisions of Obama’s Affordable Care Act was designed to prevent discrimination based on gender identity. However, the Trump administration was able to strike this down beginning on August 18th, 2020. As a response, 23 states being led by Letitia James sued to prevent this, as they believe it relies on illegally redefining ‘sex.’ The Supreme Court has already ruled that discrimination against the LGBTQ community is illegal, but Trump’s Health and Human Services department said that it will enforce sex discrimination “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” James believes “This is just the latest attempt by President Trump and his administration to unlawfully chip away at health care for Americans after failing to repeal the ACA time after time.” She also believes Trump’s actions are intended to limit access to abortion and deprive non-English speakers of information.
Thankfully, the states are able to push back against a blatant attempt to discriminate.
Bullying Governors During the Pandemic Response
When the Covid-19 pandemic began to ravage the US, some state governors chose to impose lockdown orders to stop the spread. However, Trump butted heads with them, as he pushed for the states to remain open, despite virtually all medical advice to the contrary. He said during a press conference that he “calls the shots” and that “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be.” When asked for a legal basis, he was unable to provide one, as the president has limited ability to circumvent a governor’s authority on these matters. As a response, governors have taken matters into their own hands, with several banding together to coordinate their responses. As of this writing, the US has surpassed 250,000 cases due to a lack of scientific understanding and conspiracy theories, many of which are supported by Trump and his followers.
Given the above, it’s safe to assume that the pandemic would be even worse had the governors not been able to overrule the Trump administration.
Deploying Federal Agents in Portland
In May, 2020, protests and riots broke out in Portland, Oregon in response to the police killing George Floyd by kneeling on his neck. Because of the damage being done to the city, Trump sent in agents from the Department of Homeland Security. On one hand, the federal government is within their rights to defend federal property, but they are not allowed to interfere with city or state matters. Portland and Oregon have filed a lawsuit, claiming that agents were engaged several blocks from federal property, had unlawfully deputized local police officers, and erected a fence over city property. The lawsuit claims that these activities are “a distinct and meaningful policy shift to use federal enforcement to unilaterally step in and replace local law enforcement departments that do not subscribe to the President’s view of domestic ‘law and order.’” In particular, the lawsuit claims that they are a violation of the anti-commandeering doctrine of the 10th Amendment.
With this in mind, it’s worth wondering how far Trump would have gone if states’ rights didn’t exist.
Targeting Marijuana Laws
In the early days of his presidency, Trump signaled support for allowing states to make their own marijuana laws. He said in numerous interviews that he would not touch the Obama-era Cole memo, which advised federal prosecutors to “generally not pursue action against individuals for state-legal cannabis-related activity, except under a limited set of circumstances.” However, in 2018, marijuana and states’ rights advocates were alarmed when Attorney General Jeff Sessions rescinded the memo. Furthermore, the Justice Department then won a court case to force California to disclose documents on licensed marijuana businesses; U.S. Citizenship and Immigration Services made working for a marijuana dispensary grounds for denying citizenship to immigrants; the Justice Department made misdemeanor possession grounds to deny seeking asylum; the Trump appointed leader of the Department of Veterans Affairs spoke out against legislation that would grant greater access to medical marijuana for veterans and legislation for increased research; and Trump created a secret committee to help federal agencies deter public support for marijuana reform.
However, because of states’ rights, the states are continuing the push for legal marijuana, despite the efforts of the Trump administration. On November 3rd, 2020, voters in Arizona, Montana, New Jersey, and South Dakota voted to legalize marijuana for personal use, joining 11 other states and DC.
Shielding For-Profit Universities
19 states sued Secretary of Education Betsy DeVos for allowing for-profit schools to use predatory practices on students. Massachusetts Attorney General Maura Healey said that “Since day one, Secretary DeVos has sided with for-profit school executives against students and families drowning in unaffordable student loans.” The Borrower Defense Rule was designed by the Obama administration to protect borrowers, with wide reaching effects for state universities, but DeVos has refused to abide by the legislation.
Thankfully, states’ rights allowed state attorneys general to stand up to DeVos.
As of this writing, the Trump administration has been sued 138 times by the states. For comparison, Obama was sued 78 times and Bush 76 times during their 8 years in office. One of the reasons for this is the growing political divide in the country, but this also demonstrates Trump’s authoritarian tendencies, which is exactly why the founding fathers put the true seat of power with the states.
Unfortunately, though, both parties change their opinions on states’ rights depending on what they need at the moment. For example, at the moment, a lot of Democrats are pushing to abolish the Electoral College. While there are good reasons to do so, it puts way too much power over elections into the hands of the federal government, the representatives of which would benefit from its manipulation. However, the majority of the lawsuits discussed above are from Democrats. Likewise, Republicans sued the Obama administration because of federal oversteps numerous times, yet they are the ones enabling the Trump administration’s oversteps. In other words, states’ rights only matter when it’s convenient.
Going forward, it’s difficult to say if anything will change for the better. The power of the federal government continues to grow, and states’ rights increasingly get overshadowed. In particular, the executive bureaucracy has ballooned in recent decades, and the president’s authority over it is virtually unquestioned due to the Unitary Executive Theory and party loyalty. The solutions perhaps are to stop ignoring the importance of states’ rights to suit a particular agenda, to allow more Congressional oversight over the executive branch, and to stop putting party over country. Otherwise, future Donald Trumps will only wield more power.
Originally published at http://thehappyneuron.com on November 19, 2020.