By John Daniel Davidson
Thursday, January 26, 2017
California Gov. Jerry Brown is worried a too-powerful federal government will interfere with the good governance of his state, dictate policy from faraway Washington DC, and bring ruination to his people.
Now he knows how conservatives feel.
In his State of the State address on Tuesday, Brown struck a defiant pose against the Trump administration, vowing to resist “climate deniers” and any federal reforms that might affect California’s progressive policies. “We must prepare for uncertain times,” he said, citing threats to environmental regulations, Obamacare, and illegal immigrant policies.
“I recognize that under the Constitution, federal law is supreme and that Washington determines immigration policy,” he said. “But as a state we can and have had a role to play.”
Brown is right, states do have a role to play—a role that should arguably be much bigger than it is. In fact, if Californians are so inclined, they should be able to outlaw private ownership of automobiles, offer universal single-payer health care, and issue as many in-state “visas” for undocumented migrants as might show up on their southern border.
After all, why should Brown be forced to grovel at Trump’s feet just to do what he thinks is right for the residents of his state? Why shouldn’t he be free, with the endorsement of the voters, to turn California into a socialist, climate-conscious utopia with open borders? States like Texas, whose number one source of new residents is California, would welcome it.
A Brief History Of ‘Cooperative Federalism’
At the risk of oversimplifying the principle of federalism, the idea is at its core very simple: states are sovereign entities, so they should look after their own affairs and let the feds look after strictly national affairs. Conservative governors and state lawmakers have been arguing this very point for the past eight years. On issues from health care to environmental regulation, Republican officials at the state level have been pushing back against federal overreach.
A bit of history is in order. Before the rise of the administrative state and the deluge of federal regulations unleashed in the 1970s, this was more or less how it worked. States had (and still have) different priorities and imperatives, and thus ordered their affairs differently. With the creation of programs like Medicaid and massive agencies like the Environmental Protection Agency, this began to change.
Federal bureaucrats realized they could force states to implement policies written in Washington DC by threatening to pull federal funding. They dubbed this scheme “cooperative federalism.” For example, if a state didn’t peg its drinking age at 21, well, that state would lose its federal highway funding. That’s what happened in South Dakota v. Dole, a 1987 Supreme Court case that found it was okay for the federal government to withhold funds from states whose legal drinking age didn’t conform to federal policy.
The problem of federal coercion has progressively gotten worse since then. When the Obama administration’s EPA ordered states to come up with plans to implement the agency’s new Clean Power Plan, 24 states refused on constitutional grounds. Under the Clean Power Plan, the EPA is effectively demanding states reorganize their entire electricity infrastructure, which, according to these 24 states, the agency has no statutory authority to regulate. A legal battle ensued, and a decision from a federal appeals court is pending.
Same thing with Obamacare. As written, the federal health care law required states to expand Medicaid or lose all their federal Medicaid funding—a sizeable chunk of state budgets (in large states, tens of billions of dollars). In the 2012 Supreme Court case NFIB v. Sebelius, the court ruled that the feds can’t just order states to expand Medicaid because Obamacare basically transforms Medicaid into a totally new program that the states never agreed to.
For the first time, the Supreme Court found the threshold for federal coercion of state governments. States that wanted to expand Medicaid were free to do so, but those that refused would not have to surrender their traditional Medicaid funding. It was a huge, if underappreciated, victory for federalism.
States Should Be ‘Laboratories of Democracy’
Fast forward to the Trump administration. At a Senate confirmation hearing last week for Oklahoma Atty. Gen. Scott Pruitt, Trump’s pick to head up the EPA, Pruitt said he could commit to keeping a waiver that allows California to set higher emissions standards than other states.
The irony is that as Oklahoma’s attorney general Pruitt sued the EPA 14 times. The cases involved—you guessed it—federal regulations. Everything from rules governing air quality to wetlands to Obamacare. If anyone should be okay with California regulating emissions standards to the hilt, it’s Pruitt.
Not only that, California should be able to craft its own policies on immigration and climate change and health care. So should every state. Conservative states like Oklahoma and Texas will obviously have different, probably looser, regulatory regimes than progressive states like New York and California.
That’s fine, let them do it. States should be, in Supreme Court Justice Louis Brandeis’ famous phrase, “laboratories of democracy,” in which “a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
For California, that would probably mean radical experiments in socialism and heavy regulation of private industry. In his State of the State address, Brown even hinted at a Pruitt-like approach on climate change. “The science is clear, the dangers is real,” he said. “We can do much on our own and we can join with others—other states and provinces, even other countries—to stop the dangerous rise in climate pollution.”
He should go for it—and take his state-based regulatory schemes all the way to the Supreme Court. If Brown is successful, we’ll get to see an extreme version of “laboratories of democracy.” Progressive and conservative states will be in direct, intense competition.
Brown closed his speech with a promise: “California is not turning back. Not now, not ever.” For the sake of Texas and the other red states, let’s hope not.