Jefferson: The Musical

Daniel Hemel
Nov 9, 2016 · 3 min read

The banner ad on NYTimes.com is for tickets to Hamilton on Broadway, but the banner headline below makes me think that Thomas Jefferson is the Founding Father whose words are most relevant to our moment:

“Were not this great country already divided into states, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority.”

Twenty states and the District of Columbia voted for Hillary Clinton yesterday. Those states are home to 44% of the nation’s population and are responsible for 50% of its gross domestic product. For those of us Clinton supporters living in solidly blue states, tonight’s result will lead us in the short run to despair — and in the long run to federalism.

If President Trump’s Supreme Court nominees tip the balance toward overruling Roe v. Wade, then blue states can respond by enacting reproductive rights laws of our own at the state level. If President Trump and his congressional allies follow through with their pledge to “repeal and replace” Obamacare, then blue states can respond by implementing state-wide Romneycare regimes. If, even more frighteningly, President Trump tries to oust the millions of undocumented individuals living peacefully in our midst, we can adopt “sanctuary city” and “sanctuary state” laws that prohibit our police officers from participating in deportations. Much of what Trump does at the national level, we can undo at the state level — at least up to a point.

Where exactly is that point? What our the limits to federalism’s reach? Well, only about 30% of U.S. carbon dioxide emissions emanate from blue states, so there’s a cap to what we can do about climate change through RGGI-like compacts. We can’t prevent Trump from adding trillions to our national debt. We can’t save NAFTA on our own. When it comes to military matters, we’re pretty much powerless. And, of course, there’s not much we can do to shield our friends and family members in red states from the Trump administration’s blow — except to invite them to move in.

I say “we” here sitting pretty in deeply blue Illinois, where Clinton won by 16 percentage points, but perhaps I shouldn’t include myself in the first person plural. State-wide bills still have to run the state legislative gamut, and in Illinois we have a Republican governor very much willing to wield the veto pen. So too for blue staters in Maine, Maryland, Massachusetts, New Jersey, New Mexico, and Nevada, all of which have Republican governors. I’m upbeat about Maryland, Massachusetts, and Nevada — where Republican governors Larry Hogan, Charlie Baker, and Brian Sandoval (respectively) have disavowed Trump and generally governed from the center. Here in Illinois, statewide politics are so dysfunctional that I can’t be quite so sanguine.

At a time when pollsters and prognosticators are wondering how they failed to foresee Trump’s win, I should give credit for foresight where such credit is due. In 2012, Yale law professor Heather Gerken wrote an article in the journal Democracy titled “A New Progressive Federalism” in which she made the following claim:

State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can ruleat the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

When Gerken’s article was published, I thought that “progressive federalism” was an idea whose time had passed. Then, and for the next several years, we had a progressive President — himself a member of a racial minority — whose agenda on health care reform, immigration, and voting rights was being thwarted by federalism (see, specifically, the Medicaid holding in NFIB v. Sebelius, the Fifth Circuit’s “special solicitude” for the states in Texas v. United States, and Chief Justice Roberts’s appeal to the “equal sovereignty” of the states in Shelby County v. Holder). Little did I realize that progressive federalism was an idea ahead of its time, not behind. Now, the notion that federalism might be the last best hope for progressivism gives us a glimmer of optimism on an otherwise grim day.

Whatever Source Derived

Thoughts on tax and the law

Whatever Source Derived

Thoughts on tax and the law

Daniel Hemel

Written by

Assistant Professor; UChicago Law; teaching tax, administrative law, and torts

Whatever Source Derived

Thoughts on tax and the law