The Short Life and Sudden Death of Faux Federalism

After more than a century in exile, or maybe banishment would be a better word, the founding principle of Federalism came roaring back into fashion in many Democrat-dominated states in the Trump era, with California and Colorado leading the rebellious pack. The transformation came miraculously and instantaneously on the day Donald J. Trump took the oath of office. It seemed like a sea change of sweeping significance.

Suddenly, seemingly out of nowhere, the party that spent the last century methodically concentrating power in the grasping claws of central government, the party that long dismissed and denigrated conservative support for "states' rights" as a sinister echo of slave-era thinking, the party of one-one-size-fits-all, as long as that size is XXL, rediscovered "states' rights" and even "local control" as rallying cries.

These newly-neofederalist states weren't going to just take orders from the hated Trump administration. They weren't going to follow federal laws and regulatory diktats with which they disagreed. These states now wanted the autonomy and sovereignty they were due under our federalist system of governance. A strong whiff of secessionism filled the air, especially in California. 

Some went even further down the road toward open rebellion by forming a state-led cartel, with California at the helm, to establish stricter-than-federal vehicle emissions standards. Members of this new "Cali cartel" weren't just seeking autonomy under this unworkable two-tiered regulatory scheme; they were (and still are, since this power struggle is now before the courts) hoping to leverage their clout as car markets to make their standard the de facto national standard, effectively turning the federalist idea on its head.

This wasn't federalism but reverse federalism, in which a subgroup of states attempts to impose its emissions standard on all the other states, in textbook wag-the-dog fashion.   

Some rebel states further tested established boundaries my engaging in foreign policy. They vowed to abide by terms of the never-ratified Paris Climate Accord, for instance, a treaty Trump ran against.  California further upped the ante by negotiating a cross-border cap and trade scheme with Canada. 

Such shows of defiance delighted liberals and turned certain Governors (like California's Gavin Newsom) into instant celebrities. But they also constituted a challenge to federal power and prerogatives without parallel in recent history, prompting the Trump administration to push back. The provocateurs then posed as the "victims" of Trump's aggression and iron rule. It was a simplistic morality play some in the press eagerly played up. 

But then -- BAM! -- COVID19 hit and the zebras began showing their statist stripes again. 

Suddenly, America's most Trump-defiant states are the states bleating loudest for federal help, federal bailouts, federal guidelines, federal "leadership" -- even for federal force against states that won't impose Constitutionally-dubious lockdowns of various sorts. And suddenly, states unwilling to join the stampede to trample civil liberties become rogue "holdout states" that must be brought to heel. Trump now finds himself under fire from the neofederalist left for not imposing a national lockdown; for not ordering states to comply; for granting governors the latitude to tailor responses that meet their circumstances.

We're learning a lot about ourselves and our country, good and bad, during this crisis. It's become a gut check that was probably overdue. We're seeing the world more clearly and soberly as a result. True colors become much more vivid in a midst of tough times. Now we can put to rest any notion that Democrats suddenly have seen light on the merits and virtues of the federalist system of governance. We can see that faux federalism was just another pose they struck for partisan purposes.

They are what they've always been; statists to the marrow. 

Coronavirus and Cognitive Dissonance

Most of us by now know the warning signs. A spiking temperature. The raspy cough. Shortness of breath. Then there's the piercing headaches many American "progressives" experience as they sort through a cacophony of contradictory words, thoughts and emotions related to the coronavirus outbreak. These bouts of cognitive dissonance aren't mentioned in any of the CDC medical bulletins I've seen. However, I find the evidence for a link between COVID19 and liberal cognitive dissonance compelling, even if it's anecdotal at this point.

For instance, liberals who once darkly warned of Trump's autocratic and fascistic tendencies now complain that he hasn't been dictatorial enough in confronting the coronavirus crisis, as Rich Lowry points out. And meanwhile, in another brain-straining twist, you have liberal Trump-bashers laying the foundations for martial law and behaving very much like, well, fascists.

Crisis is also exposing the hollowness,  hypocrisy and cynicism of the left's feigned recent rediscovery of federalism, after decades of systematically concentrating unparalleled powers in the federal government. Democrat-dominated states that once blithely and cheerfully surrendered their powers and prerogatives to Washington suddenly grew rebellious after Trump was sworn in. The big bullies in Washington weren't gonna boss-around these states anymore. They were determined to set their own regulatory standards, selectively enforce federal law, and even go their own way on matters of foreign policy. 

But what a change crisis can bring. Suddenly, these same states are looking to the federal government for action, answers, resources and "leadership," leading to this dust-up between President Trump and New York Governor Andrew Cuomo over who is or isn't meeting their responsibilities as the crisis unfolds.    

All the President did on this call, from what I can tell, was encourage governors to take the initiative in terms of rounding up extra medical supplies and equipment, rather than waiting for a hidebound and sclerotic federal government to come to the rescue (my words, not his). Are states to just sit around and wait for federal helicopters to deliver stockpiled surplus respirators to emergency room doors? Or do states have an obligation to be creative, resourceful and proactive in addressing such problems themselves, if they possible can? Trump's suggestion that states had such an obligation reportedly angered and frustrated some governors, including those governors, like Cuomo, who have been leading the anti-Washington rebellion in recent years. 

Some of these indignant governors have operated in open defiance of the federal government during the Trump years. They've refused to enforce federal immigration law and engaged in secessionist-sounding actions and rhetoric. But now, suddenly, when the chips are down, they strike the pose of helpless children who can't function in a crisis without Uncle Sam's (and Uncle Donald's) guiding hand? 

The fauxneofederalists have talked a good game in the Trump era, about how they won't be pushed around or dictated-to by this Republican President. They've adopted the sort of militant states' rights rhetoric one long associated with the right rather than the left. But confront them with a little adversity, push them to show genuine initiative and take actual responsibility, and they default to the whiny, Washington-worshipping statists they've always been.

Liberal cognitive dissonance may not be among the coronavirus symptoms you'll find listed in the medical literature. But there can be little doubt, based on a mountain of anecdotal evidence, that such a link in fact exists. And only time will tell whether a vaccine or a cure can be found. 

The Mild Mild West

I sometimes wish Colorado had a little more of the rebellious spirit you still see in other Western states. We've become tame, compliant and conditioned to accepting federal domination, while a number of neighbors -- in this case, Idaho -- are still bucking under Washington's big saddle.

A little sagebrush rebellion now and again is a good thing -- it helps keep alive the spirit of rugged individualism that once defined the West. But Colorado is now the most Californianized of Western states. While other statehouses in the region are roiling with bills designed to take on the feds (at least symbolically), our legislators seem about as cantankerous and rebellious as those you'd find in Iowa.

The neo-federalist revival we're seeing elsewhere isn't stirring a ripple in Colorado. We're sitting safely on the sidelines while something really exciting is passing us by.

Sagebrush Rebellion Shows Signs of Life

Wyoming would seem to have a lot in common with Colorado, when you look at it on the map. It's directly to our north and about evenly split between mountains and plains. People there wear cowboy boots. Some even still work as cowboys. Both states are home to an endangered species called the Preble's meadow jumping mo . . . . oops . . . . correction: the mouse is endangered in Colorado but not in Wyoming.

But one thing Wyoming still has that Colorado seems to have lost is the wild and rebellious spirit of the old West.

It's hard to imagine a good old-fashioned sagebrush rebellion breaking out in the "new" Colorado. But the desire to be free from Washington's suffocating embrace still burns in the hearts of Wyomingites, judging from the batch of neo-federalist bills under consideration by legislators there.

I've written before about my admiration for Gov. Dave Freudenthal, a Democrat who isn't afraid to buck Washington when it's in the state's best interests. During his state of the state speech Monday, he accused the federal government of trying to "regulate everything." "The states need to be more than empty vessels whose job it is to execute federal policy," said Freudenthal. "And the only way you're going to do that is to take it very delicately and go in and try to re-establish the balance between the federal government and the states."

Can anyone imagine Bill Ritter saying that?

Whether we can "delicately" re-establish this balance is doubtful, in my view. Uncle Sam won't release his grip on Western states without a saloon-style brawl. But some Wyoming legislators seem intent on backing-up the governor's rhetoric with action.

From the AP:

CHEYENNE -- The Wyoming House of Representatives is taking the first steps toward possibly telling the federal government to back off on a range of states' rights issues, from gun control to endangered species management.

A few House members, however, warn that Wyoming shouldn't seek too much independence from a federal system that serves as a significant source of state income.

Rep. Pete Illoway, R-Cheyenne, is the main sponsor of House Joint Resolution 2. It would call on Congress to stop enacting mandates beyond the powers granted to it in the U.S. Constitution. The resolution lists federal laws such as the Endangered Species Act, the Clean Water Act and federal land management statutes as failing to make that cut.

The House voted 50-8 on Tuesday to clear Illoway's resolution for introduction. It takes a two-thirds vote to introduce non-budget matters in the current legislative session.

"Maybe somebody will start to listen to see that the states' rights are being taken away," Illoway said after the House vote, adding that other states have enacted similar measures. "That's really what we tried to do, to say, 'Come on, you're taking away what the Constitution gave to us . . ."

So what's on the agenda?

HB-28, the "Wyoming Firearms Freedom Act," would "provide that firearms that are made and sold within Wyoming would be exempt from federal regulations," reports the AP. House Joint Resolution 5 calls on Congress "to stop abridging states' rights, including gun rights." HB-47 "would direct the Wyoming Attorney General to consider legal action against the federal government over federal agency environmental review proceedings or endangered species issues including wolf management in the state," reports the AP.

Can anyone imagine a majority of Colorado legislators supporting such bills?

Utah legislators are also showing a little of the old piss and vinegar. Last week, the House approved a measure that would make skepticism the state's official position vis-a-vis climate change. It also urges Washington not to pursue cap-and-trade or other carbon control schemes. Beehive State legislators also have picked a fight with Uncle Sam on Second Amendment issues, approving a bill that would exempt firearms manufactured in Utah from federal gun rules.

Best yet, a group of county officials are pushing a trio of bills that would approve the taking of federal land in Utah through eminent domain. Reports the Deseret News:

"A pair of Utah County Republican lawmakers want to shepherd a trio of bills using eminent domain to wrest control of public lands they say are tied up by an out-of-balance, out-of-control federal bureaucracy.

The sponsors, with unanimous support voiced Wednesday by a legislative appropriations committee, not only want to tap some School and Institutional Trust Lands Administration land for development, but also yank back some of the parcels of oil-rich land withdrawn by Interior Secretary Ken Salazar a year ago this month.

Rep. Ken Sumsion, R-American Fork, and Rep. Chris Herrod, R-Provo, said the groundswell of the states' rights movement means the time is ripe for the battle, which they envision playing out before the U.S. Supreme Court.

Citing a quote by Alexander Hamilton, Herrod said it is time to sound the alarm on behalf of the people and be the mouthpiece of discontent. "People in Utah are discontent," he said. "We want to be in control of our destiny."

Naturally, a few ninnies worry that showing a little independence, a little defiance, could lead to federal retaliation and cost the states federal funds -- it's the long green leash that keeps so many of them from straying.

"I agree we have a problem," one Utah official said in reference to federal hegemony over the West. "It is out of balance, and it is out of control, and something needs to be done. … But we work with [the Feds] all the time. The last thing I want to do is get on their short side. … If you are going to take out the king, make sure you do it in the first shot."

Rep. James Byrd, a Democrat from Cheyenne, is afraid Wyoming's access to mineral deposits on federal lands might be jeopardized, and its federal road funding might go away, if it doesn't "work with" the federal government. "So, we have to be careful as to how we phrase things and what positions we take in opposition to the federal government," Byrd told the Casper Star-Tribune.

What a sad day we live in as Americans, and how far we've drifted from the nation's original design, when elected state leaders feel they need to tiptoe around, whispering like UN diplomats, for fear that they'll anger and enrage the sleeping giant in Washington.

Getting Serious about States Rights

You hear more about "states rights" these days than you have in recent years, as some governors react to events in Washington (especially the stimulus package) that seem designed to obliterate what remnants of the federalist system remain. But it’s hard to get a handle on how seriously people take this.

Texas recently caused a stir, for instance, when leaders there suggested that they might secede from the union in response to what’s taking place in Washington. Resolutions passed in other, mostly Republican-controlled states (like secession-happy South Carolina) have vaguely asserting state sovereignty, hinting at nascent rebellion. And I have written in recent years about the rise of what I call "neo-federalism" -- an emerging assertiveness on the part of states, stemming not from the hyperactivity of the Obama administration but from the paralysis that is much more the rule in Washington.

As someone who believes in the federalist system established by the founders, and who cheers almost any sign of its resurgence, I've watched these developments with hope and interest. But I've reluctantly come to believe that much of the most recent states rights talk is mere posturing and saber-rattling, done for rhetorical effect only, to advance narrowly partisan ends -- which threatens to trivialize the serious constitutional issue of how power is apportioned in the country.

Both major parties cynically evoke it when it gives them tactical advantage in the skirmish at hand, but neither takes it seriously enough to apply in a consistent or coherent way.

Yesterday's fight in the U.S. Senate over an amendment designed to expand gun rights offered a good example of what I'm talking about. So blatant was the flip-flopping and position-switching on the issue that even the New York Times picked up on it:

"The debate forced senators to wrestle with issues of states rights, sometimes in ways that seemed to clash with the general philosophies of their parties. Many Republicans, who typically favor limiting the ability of the federal government to dictate to states on social issues, voted in this case to limit the ability of states to insist on their own rules for concealed weapons carried by people from other states . . ."

. . .Critics of the amendment argued that it would undermine state and local gun-control laws, and accused Republican supporters, typically staunch defenders of states’ rights, of hypocrisy.

In their floor speeches and in the lead-up to the vote, Republicans repeatedly sought to rebut that accusation by saying that gun carriers would still have to obey state and local laws."

Typically, the Times focused on Republican hypocrisy, but Democrats are guilty of it, too, since they normally are enthusiastic supporters of expanding Washington's power and control, over virtually every corner of the country, but in this case -- in a laughably cynical fashion -- took the position that the amendment in question would trample states' rights.

The arguments for moving the nation back in the direction of its federalist origins are compelling, in my view, even if the political obstacles to doing so are daunting. And I won't abandon my hopes for a neo-federalist revival, spurred by the desire of states to chart their own destinies and escape Washington's long shadow.

But that effort won't gain real traction as long as Republicans and Democrats continue to trivialize and play games with the issue, batting states rights around like a political beach ball.

Obama's "progressive federalism" a one-way road to more regulation

The New York Times attempted to coin a catchy new phrase recently, when, in a story about President Obama's laissez faire attitudes about states that regulate in excess of mandates Washington imposes, up popped the term "progressive federalism," which seems the very definition of an oxymoron. Here's the context in which it appeared:

"The Obama administration seems to be open to a movement known as “progressive federalism,” in which governors and activist state attorneys general have been trying to lead the way on environmental initiatives, consumer protection and other issues, several constitutional experts say.

A recent decision by President Obama that could open the way for California and other states to set their own limits on greenhouse gases from cars and trucks represents a shift in the delicate and often acrimonious relationship between the federal government and the states, legal experts say, possibly signaling a new view of federalism.

“I think it’s quite significant,” said Samuel Issacharoff, a professor of constitutional law at New York University law school. “It shows the Obama administration’s more benign view of government intervention,” Professor Issacharoff said, and “may indicate a spirit of cooperative federalism” in which Washington will look to the states for new ideas and even a measure of guidance.

Tom Miller, the attorney general of Iowa, who met with the transition team in December to discuss federalism and other issues, said he believed the Obama administration would “usher in a new era in federal-state relations.” Members of the new administration, Mr. Miller said, “are open to what we’re talking about, what we’re thinking.” They also appreciate, he said, the fact that state attorneys general often achieve a level of bipartisan cooperation when they band together to pursue lawsuits.

The general trend under previous administrations had favored federal pre-emption, the belief that the best law comes from Washington, a concept still favored by business leaders. William L. Kovacs, a vice president for environmental and regulatory issues at the United States Chamber of Commerce, said free-for-all federalism was bad for business and would lead to a “patchwork of laws impacting a troubled industry.” Detroit, Mr. Kovacs said, would have to produce different cars for different parts of the country, and the environmental protection agency would grow tremendously to meet the new regulatory burden.

Many liberal thinkers skeptical of states’ rights and state actions since the days of segregation have begun to see that the states, to use Justice Louis Brandeis’s words from the 1930s, can “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”


The phrase "progressive federalism" seems designed to have conservatives and libertarians pulling their hair out, since it is the right, by and large, which has owned federalism (or should I call it paleo-federalism?) as an issue in modern times. Although federalism since the founding has served as an ideological ping-pong ball, it is the right that would like to restore a more equitable balance of power between the central government and the states, allowing the latter (in the famous image evoked by Justice Louis Brandeis) to serve as laboratories for civic experimentation, where "novel social and economic experiments" can be tried "without risk to the rest of the country.”

Far from putting the rest of the country at “risk,” such experimentation can fall to the country’s overall benefit, since states, if freed to be creative, could serve as the incubators for true innovation, as happened with welfare reform in the 1990s.

Not only are states better equipped to tailor policies that meet their particular needs, but under this model, Americans can vote with their U-Hauls for the governing approaches that best conform with their beliefs and values. A bit of this goes on now, when, for instance, we read about fed-up people fleeing California for Colorado. But so great has the uniformity become, as Washington's hegemony had grown, that the latitude for real experimentation is gone and the choices open to Americans are becoming very limited.

The insidious thing about "progressive federalism" is that it is a one-way street, selectively employed in a manner designed to relentless increase, but never decrease, government power and control. Obama and other statists are more that happy to see command-and-control California set higher-than-federal auto emission standards, in a case of wag the dog regulating. But states that decide to go another way, and regulate below the federal standard -- who decide, for instance, to opt out of certain provisions of the Clean Air Act or Endangered Species Act -- are out of luck, and will find the federal hammer coming down on them.

The point is made explicit by William Marshall, a law professor at the University of North Carolina who was deputy White House counsel in the Clinton years, when he's quoted by The Times as saying that federal rules should serve "as a floor and not a ceiling,” meaning that states would be allowed to pile new regulations on, but never remove or renounce them.

So much for experimentation. So much for choice. This "laboratory" is designed to produce only one outcome -- more regulation. "Progressive federalism" is another Orwellian attempt to rob words of their meaning -- and might more accurately be described as "faux federalism."