Democrats Finally Discover Federalism (Washington Examiner) April 19, 2018

After decades of neglect, a federalism bandwagon is rolling across the country, carrying not only conservatives who have long believed in states’ rights, but also gathering up progressives who are out of power in Washington and have rediscovered the appeal of localism. In fact, many of today’s big political battles are, at their base, a federalism tug of war pitting the federal government against state and local governments.

Take immigration, for example. As the Trump administration has tightened up immigration enforcement at the federal level, a number of states, counties, and cities have decided not to share citizenship information with the feds, with some declaring themselves sanctuary areas for immigrants. President Trump pushed back, signing an executive order pulling most federal grants from states and cities that will not divulge information about citizenship as required by federal law. Last month Attorney General Jeff Sessions turned up the heat by suing deep-blue California over its sanctuary laws. An interesting federalism nuance now sees certain conservative California counties and cities joining the federal suit against the state’s liberal sanctuary laws. A federalism fight is on.

Federalism may have found a truce on another key issue: legalized marijuana. Federal law continues to make the use of marijuana illegal, whereas 30 states and the District of Columbia have legalized its use in some way. The Obama-era solution to the conflict was to ease up on federal enforcement in states that legalized marijuana, but Sessions announced early on that the federal government would resume enforcement everywhere. When Sen. Cory Gardner, a Republican from marijuana-friendly Colorado, began blocking Trump’s judicial nominees, the president called and said the feds would back off enforcement in Colorado if Gardner would approve his nominees. Gardner reported this federalism victory, saying, “President Trump has assured me he would support a federalism-based legislative solution to fix this states’ issue once and for all.” For now, a federalism truce is found.

The federalism tug of war has encompassed a number of issues in Trump’s first year. California famously announced its own climate change and environmental policies when Trump pulled out of the Paris accords. State attorneys general challenged Trump’s travel ban. States are now suing over the tax reform limitation on the deductibility of state and local taxes, based on the theory that it violates the equal protection rights of more expensive blue state residents. In fact, by the end of Trump’s first year, Democratic states had brought 35 lawsuits against his administration, compared with 46 lawsuits by Republican states in President Barack Obama’s 8-year term. The federalism tug of war is spreading.

With federalism busting out all over, where might this lead? Republicans have long championed the 10th Amendment (power not delegated to the federal government is reserved to states and individuals) and states’ rights. In the era of gridlocked government and President Trump in Washington, Democrats have discovered “progressive federalism,” especially located in cities, which tend to be governed more by their party than states where Republican governors predominate. Is it possible that federalism might actually unite liberals and conservatives in a drive for greater localism? Perhaps, but it seems even more likely that federalism may simply become the latest tool in the political battle.

Just as President Richard Nixon reportedly said of economic policy, “We’re all Keynesians now,” it seems we are all becoming federalists now. After decades of power moving to Washington, it would be healthy and refreshing to see the pendulum swing back toward state and local governments. But it would be even more promising if federalism became a way of making policy more deliberative and less contentious. It remains to be seen whether this new federalism might accomplish that.

David Davenport is a research fellow at the Hoover Institution.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/democrats-finally-discover-federalism