Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a new wave of states’ rights advocacy, giving the impression – at least some of the time – that a historic shift could be underway.
THE STATEMENTS AT ISSUE:
“The states disagree with the Secretary of Homeland Security’s exercise of enforcement discretion and have invoked the judicial power to countermand it. But their claims are, at bottom, policy disagreements that must be resolved through the political process; they are not an Article III case or controversy. Indeed, to reach the merits of the states’ claims, the district court was forced to stretch the limits of Article III well beyond the breaking point.”
– Argument made by the federal government in a legal filing on March 30, urging a federal appeals court to clear the way for enforcement of the Obama Administration’s new policy to delay deportation of non-citizens who are living illegally in the United States.
“At bottom, the states’ quarrel is not with Colorado but with the federal government’s view of federal enforcement obligations under [federal drug laws]….It is Colorado’s sovereignty that is at stake here: Nebraska and Oklahoma filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree….The states have failed to demonstrate, by clear and convincing evidence, that Colorado has directly and seriously injured their sovereign rights.”
– Argument made by the state of Colorado in a legal filing on March 27, urging the Supreme Court not to permit Nebraska and Colorado to sue Colorado in the Supreme Court in an attempt to stop a major part of their neighbor’s new policy of legalizing recreational use of marijuana. The two states claim that the policy is creating crime across their borders with Colorado.
WE CHECKED THE CONSTITUTION, AND…
America has been debating, since before the Constitution was ratified, how to divide up the powers of government between the national and state levels. Each era in the nation’s history, it seems, has its own version of this struggle, but it never gets resolved in a definite way. In this era, a revitalized jealousy among many states about their powers is leading to a host of new controversies, with the federal courts being called on anew to protect states’ prerogatives.
Just a partial list of court controversies in modern times illustrates the trend:
Encouraged by President Ronald Reagan’s call for a “New Federalism,” states began suing to regain powers they believed they had lost, and they found the Supreme Court under Chief Justice William H. Rehnquist quite sympathetic to their claims.
Disturbed by the massive growth of federal power, especially among the so-called independent agencies (they derisively called those agencies the “unelected bureaucracy”), states fought back with energetic attempts to curb those agencies’ authority. When the Supreme Court became more conservative, those attempts had more success.
The rise of a conservative legal movement, with well-funded advocacy organizations able to hire talented and committed lawyers, gave rise to a determined “limited government” campaign that soon encouraged states to join in that fight. Borrowing the tactic that had for so long helped liberal forces advance their cause in the courts, the “limited government” forces began filing lawsuits of their own more often.
Sweeping victories in federal elections gave new power to conservatives in state legislatures and in Congress, and a new energy flowed into the “states’ rights” cause. The rise of the “Tea Party” with its suspicion of concentrated government power contributed to the political gains.
By the time a decidedly liberal government took over the Executive Branch, with President Obama’s election, the stage was set for major new power struggles over centralized authority.
It was a group of state governments that led the fight against Obama’s sweeping overhaul of the national health insurance system. They were partially successful in the Supreme Court in 2012 in paring back the expansion of Medicaid, and came close to a sharp blow at the individual insurance mandate.
Again, it was the states that added their legal teams to the mounting legal challenges to the system of federal subsidies that were vital to the economic functioning of the new health care insurance markets – an issue that is still unfolding in the Supreme Court.
And, when the government last November, frustrated that Congress would not act on a new immigration policy, undertook to reshape that policy in a major way, it was group of 26 states that filed a lawsuit in Texas, before a federal judge known to be a critic of immigration policy. The government plan to delay deportation of more than four million undocumented immigrants, giving them a chance to live legally in the country, was blocked by that judge. The government scrambled to try to get the program back on track, but hasn’t yet been able to do so.
The immigration case produced a ruling by the Texas judge that gave state governments a broad new opportunity to sue the federal government, on the novel theory that the states would be harmed by the federal government’s perceived “abdication” of its duty to enforce existing deportation policy.
Demonstrating that lawyers for the states were becoming increasingly adept at fashioning new legal theories to press in the courts, the states of Nebraska and Oklahoma boldly asked the Supreme Court to step in and put a halt to Colorado’s experiment in allowing the widespread marketing of marijuana for recreational use.
Those two states were proceeding on a theory like that in the states’ challenge to the new immigration policy: that the failure of the government to enforce federal laws (this time, the drug laws) could produce an impact when one state used that lax enforcement to adopt a policy that would cause harm to neighboring states.
This combination of new circumstances, and new energy in the offices of state attorneys general, clearly was creating a new wave of states’ rights advocacy, giving the impression – at least some of the time – that a historic shift could be underway, with the courts centrally involved in making it happen.
