What is the state of our republic today? If you look at the dark clouds over Washington, D.C., where both presidential and congressional job approval ratings have been at or near record lows, you would say “not so good.” But if you look further, you may see states, cities and individuals gathering the energy to check and balance the power of Washington — just as the Founders intended.
With Republicans in charge of the White House, both houses of Congress and arguably the Supreme Court, Democrats are rediscovering states’ rights and local government powers, as the out-of-power party in Washington often does. And as usual, California is leading the way in flexing state and local power, notably:
On immigration — The nearly 20 sanctuary cities and counties in California refuse to support the enforcement of Washington’s immigration laws, charting their own course at the risk of some federal funding.
On the environment — Gov. Jerry Brown is leading his own charge on climate change policies after President Trump began withdrawing from the Paris Climate Accords. In fact, California has hired an attorney, former Attorney General Eric Holder, to represent the state against federal intrusion on its policy preferences. California’s rules on auto emissions have long exceeded federal laws, and served as a model for other states seeking to clean the air.
Federalism does not stop at one state’s borders. Today, officials from many states are joining together to influence national policy in new and effective ways.
Governors clearly were major players in the recent close votes to repeal the federal Affordable Care Act. U.S. Sen. John McCain, R-Ariz., tweeted that he would remain “firmly behind @dougducey & will support whatever health care plan [Arizona Gov. Doug Ducey] believes is best for the people of Arizona.” Republican governors John Kasich of Ohio, Scott Walker of Wisconsin and Brian Sandoval of Nevada all weighed in on how the repeal of Obamacare would affect their constituents, influencing the final “no” vote.
Attorneys general from 16 states joined together to oppose Trump’s executive orders on immigration and travel bans. In addition, California has banned state-paid travel to states without sufficient LGBT protections, and seeks to use its economic power to influence the civil rights laws of red states.
Meanwhile, Republicans have not fallen asleep at the federalism wheel. While cities, which tend to have more Democratic mayors, take the initiative on increasing the minimum wage, Republicans, who control more statehouses (33), have passed state laws preempting minimum wage policy by making it a matter of state, not local, law. To date, 25 states have such preemption laws on minimum wage, with Missouri most recently moving to preempt an effort to raise the minimum wage in St. Louis.
Agree or disagree, this has led to vigorous debate about both the economic effect of raising the minimum wage, as well as controversy over which level of government should decide it. The core questions of federalism should always be asked:
• Is a matter proper for government action?
•If so, which level (federal, state or local) and which branch (legislative, executive or judicial) should act?
When in doubt, do not delegate up but keep decisions as close to the people as possible.
It is worth noting that federalism 2.0 is not your father’s federalism. For many years, federalism was tainted by its use to defend states’ rights against civil rights laws. Now everything from legalized marijuana, the minimum wage, climate change, immigration, auto emissions, and civil rights is on the federalism agenda. On one issue or another, federalism is now for everyone, from conservatives to liberals, a spectrum represented by the authors.
States, especially, can be powerful players in establishing new policies that remake whole industries. California, for example, has for all practical purposes determined vehicle emission standards nationwide. States are free to do more than federal law requires and, by requiring that cars sold in California meet higher emissions standards, car manufacturers nationwide are meeting California’s requirements rather than producing multiple versions of vehicles. School textbooks are another example of state power: once Texas required more conservative textbooks for its public schools, for example, other states ended up buying them.
All politics is local, the late House Speaker Tip O’Neill liked to say, and that may be more true today than it has been in a century or more. Once citizens and voters see the powerful impact that a city or state policy may have, and with growing frustration over politics in Washington, more people likely will become interested in exercising local and state power. Of course, it also requires a certain tolerance for diversity, and a willingness to let the other side win occasionally, because all states will not govern in quite the same ways.
However, we say vive la différence, and viva federalism.
David Davenport is a research fellow at the Hoover Institution. Lenny Mendonca is senior partner emeritus of McKinsey. To comment, submit your letter to the editor at SFChronicle.com/letters.