Jon Margolis is a VTDigger political columnist.
The governor of California calls his domain a “nation-state.” The governor of Maryland used his National Guard to make sure federal agents didn’t make off with coronavirus test kits. The governor of Washington accused the president of “fomenting domestic rebellion,” and the governor of New York called one of President Donald Trump’s ideas “a civil war kind of discussion.”
Even the governor of tiny little Vermont made clear last week that he and his advisers, not the president of the United States, would decide when and how Vermont relaxed its Covid-19 restrictions.
“It didn’t take federal action to spur us into action and it’s not going to be the federal government that determines when we take appropriate steps here in Vermont,” said Phil Scott, rather bluntly.
Some of these governors are getting downright uppity.
So what else is new? Tension between state and federal power first arose during the presidency of George Washington. But for most of the last 230 years, when governors resisted federal authority they did so as conservatives, if not reactionaries. “States’ rights” were employed to battle racial equality, clean water, labor unions.
What is new is that states are challenging federal power from the left, and Vermont, in its own small way, is among those challengers. No one is going to describe Republican Phil Scott as a leftist; leftists do not veto minimum wage bills. But in dealing with the pandemic, Scott is employing the powers of state government more robustly than the conservative president finds tolerable.
As in the other states asserting more restrictive (hence comparatively “liberal) policies, it seems to be working. The latest polls show that voters in New York, Ohio, Maryland and California overwhelmingly approve of the way their governors (two Democrats, two Republicans) are dealing with the virus. There has been no recent public polling in Vermont, but both Democrats and Republicans in the state agree that most Vermonters approve of how Scott is handling the pandemic.
Before the novel coronavirus, even before the Trump presidency, liberal-leaning states like Vermont were challenging federal authority over marijuana use, immigration, and environmental policy. Where the federal government would not act, they created inter-state cooperative agreements, such as the Regional Greenhouse Gas Initiative (Vermont is part of it) to fight global warming.
“This is not your father’s federalism,” wrote Yale Law School professor Heather Gerken in the leftish journal “Democracy” in 2018. Progressive mayors and governors, she said, have been able to “take advantage of the enormous power that federalism confers … to affect national debates.” Federalism, she said, “is a neutral and powerful tool for change, not an intrinsically conservative quirk of U.S. government.”
Like so many political debates, disputes over “division of power” have often been obscure, esoteric, and theoretical. Sometimes they’ve been downright fraudulent, starting with the claim that 11 states seceded in 1861 because they were committed to states’ rights. They were committed to slavery.
Since then neither the left nor the right has been entirely consistent in the federalism debate. Both sides care more about what is done than about which level of government does it. Conservatives approve the broad use of federal power when they like the results (military expansion, stronger patent and copyright protection); liberals want states to enact tougher environmental laws.
Abstract though it may be, the federalism argument must be important or so many smart people wouldn’t have spent so much time and energy debating it for more than two centuries. And there is some reason to wonder if it is approaching one of its periodic turning points.
Vermont Law School law professor Peter Teachout noted that constitutional scholar Bruce Ackerman of Yale Law School has argued that there have been “constitutional moments” – after the Civil War, the New Deal, the 1960s civil rights revolution – when public insistence on dealing with pressing problems effectively forced the courts to reinterpret the Constitution.
Teachout said it was too early to say whether the liberal embrace of the kind of state assertiveness they used to oppose was a sign that another such “moment” was in the offing. But he noted that some recent events may have raised the question.
As an example, he noted that the Trump administration is in the process of reversing 98 environmental rules. Many of these rules have broad public support.
“This puts a burden on states to adopt laws or to act collectively with other states to adopt protections that the federal government is no longer providing, and to take the initiative where the initiative is clearly not coming from the federal government,” Teachout said.
But he noted that such action was not without risk.
“Vermont could impose pretty strict environmental regulations,” he said. “But it would make Vermont businesses less competitive. That’s why the traditional view is that this really needs national regulatory control.”
So, probably, does the pandemic. So does global warming. On both issues, it isn’t just majorities in liberal states like Vermont and California calling for tougher policies than the federal government is willing to consider. Polls show that most Americans agree with Phil Scott and the scientists instead of with Donald Trump about the pandemic, and that two-thirds of Americans accept the reality that human activity is making the world hotter.
If these majorities hold and if the federal government continues to bungle the pandemic response and deny the global warming crisis, public opinion could force states and localities to take stronger action. No wonder liberals are taking another look at federalism.
