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California’s Bully Federalism: Travel Ban Seeks To Impose Its Policies On Other States (Forbes.com) June 28, 2017

Posted by daviddavenport in Op/Eds.

Federalism—the idea that it matters which level (federal, state, local) and which branch (legislative, executive, judicial) of government should act on a matter–is a funny thing.  Philosophically conservatives love it since they hate big federal bureaucracies.  Liberals like it less since they adore federal mandates.

But a strange thing happens when both conservatives and liberals get Beltway fever in Washington.  Suddenly federal power seems like a really good idea, federalism be damned.  Since we have the power in Washington, and we can trust ourselves, they reason, we should enact things here and now.  That’s how we end up with federalizing classic state and local matters such as education (No Child Left Behind) and health care (the Affordable Care Act) only to come to our senses later and try to return things to the states.

So now liberals, who are out of power in Washington, have rediscovered federalism’s state and local powers, with California, as always, leading the way.  Indeed, California has hired President Obama’s former Attorney General, Eric Holder, to help defend its progressive policies against Trumpism and the federal government.  From sanctuary cities to stricter emission controls and its own climate change foreign policy, this is a time for “progressive federalism” in California.  All of that is well and good, defended by the same Tenth Amendment to the Constitution (powers not delegated to the federal government are reserved to the states or the people) that conservatives champion at other times for their favorite issues.

But now California has discovered a new kind of federalism:  bully federalism.  In addition to using federalism as a shield to protect it from the federal government under President Donald Trump, it has found a way to wield it as a sword to try to impose its policies on other states.  By instituting a travel ban on state money being used for travel to eight states that do not, in its judgment, provide sufficient legal protection to gay and transgender rights, California hopes to bully those states into submission.  North Carolina, which lost its NBA All-Star game and other money-making opportunities under a similar ban, knuckled under to just this kind of economic pressure.  As the sixth largest economy in the world, and the largest state budget, California has economic power to burn.

Federalism as a shield comes under Article I of the Constitution (supplemented by the 10th Amendment), which enumerates federal powers.  But California’s bully federalism would be understood with reference to a different provision of the Constitution, Article IV.  Here states are required to give “full faith and credit” to the public acts, records and court decisions of other states.  Reading between the legal lines, Article IV defines a certain respectful relationship among the states.  Indeed, one of the beauties of federalism is that the states may decide to take different approaches to things, providing what former Supreme Court Justice Louis Brandeis called “laboratories of democracy.”

Except that California, in its superior wisdom and with its superior power, has decided that its laboratories are right and other state laboratories and cultures are wrong in this matter.   California’s travel ban smacks of the sort of elitism—we will not even visit your state with our money—that has soured the electorate.  And indeed, if I lived in one of those eight states, as I once did, which kind of power would I rather be subject to:  federal power, where I at least have a voice and a vote, or California power, where I have no say at all?  Is it really California’s place to tell Kansas what kind of policies it should have?

If not the letter of the law, California’s travel ban violates the spirit of federalism and of the “full faith and credit” principles of the Constitution.  Once again, California is on the “bleeding edge” of reform, but this time its sword seeks to cause other states to do the bleeding.

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