Progressives have lost power in Washington. Every national institution now lies in the hands of the Republican Party. Given the slim chances of Democrats’ winning back Congress in 2018, many think that the best progressives can do is hunker down for the next four years, blocking legislation on the Hill and challenging it in court. It’s a depressing picture for those on the left. No one wants to be a member of a party whose “victories” are all in the kill, whose only role in national politics is that of the gadfly.
But if progressives can simply look outside the Beltway, they will find that they still have access to one of the most powerful weapons in politics: federalism. Using the power they wield in states and cities across the country, progressives can do a good deal more than mourn and obstruct. They can resist Washington overreach, shape national policies, and force the Republicans to compromise. Cities and states have long been at the center of the fight over national values. And it’s time progressives recognized that federalism isn’t just for conservatives.
Unfortunately, the moment one mentions federalism many progressives stop listening. The language of “states’ rights” has an ugly history, invoked to shield slavery and Jim Crow. Federalism’s checkered past led political scientist William H. Riker to remark in 1964 that “if one disapproves of racism, one should disapprove of federalism.” Even today, many progressives think of federalism as a parochial anachronism, better suited for stymieing change than for effecting it.
But they are making a mistake. This is not your father’s federalism. These days, state and local governments are often led by dissenters and racial minorities, the two groups progressives think have the most to fear from federalism. And this has allowed them to not only take advantage of the enormous power that federalism confers within their own cities and states, but to affect national debates, influence national policy, and force national actors to the bargaining table. Their success shows that federalism is a neutral and powerful tool for change, not an intrinsically conservative quirk of U.S. government.
The call for progressive federalism is not a new one. In 2004, Duke law professor Ernie Young invited liberals to come to the “Dark Side” and embrace the power of the states. (And one of the authors of this essay has spent more than a decade arguing—including in the pages of this journal— that federalism doesn’t have a political valence.) But having a Democrat in the White House was just too tempting for most progressives. They turned their attention to Washington while neglecting what was going on in California, Massachusetts, or New York City. We suspect that most progressives aren’t even aware that the Democrats have lost 27 state legislative chambers since 2008. But perhaps the 2016 election will help progressives shake loose the notion that D.C. is the center of the political universe.
Needless to say, though, the devil is in the details. So below we offer a “user’s guide” that identifies four ways that progressive leaders—from Jerry Brown and Bill de Blasio to small-city mayors—can push back against federal policy and force compromise. And, in doing so, we hope to persuade even the most fervent nationalist to become a fan of federalism. While we fashion this as a progressive user’s guide, it could, in theory, work just as well for conservatives should they lose the presidency in 2020. That’s precisely the point.
Types of Resistance
We often forget that the federal government’s administrative capacity is modest, relatively speaking. Excluding the military, it employs just short of three million personnel. Its 2015 budget (excluding defense, Social Security, and mandatory spending obligations) was less than $600 billion. Together, state and local governments dwarf these figures, with more than 14 million workers and a combined budget of more than $2.5 trillion.
Because of this, Washington can’t go it alone. When Congress makes a law, it often lacks the resources to enforce it. Instead, it relies on states and localities to carry out its policies. Without those local actors, the feds cannot enforce immigration law, implement environmental policy, build infrastructure, or prosecute drug offenses. Changing policies in these areas—and many more—is possible only if cities and states lend a hand. This arrangement creates opportunities for federal-state cooperation. But it also allows for “uncooperative federalism”: State and local officials can use their leverage over the feds to shape national policy.
This means that states can shape policy simply by refusing to partner with the federal government. This form of resistance involves more than mere obstruction. It allows progressive states to help set the federal agenda by forcing debates that conservatives would rather avoid and by creating incentives for compromise. When states opt out of a federal program, it costs the federal government resources and political capital. That’s why President Trump has a lot more incentive to compromise with Democrats in Sacramento than with those on the Hill.
Examples of uncooperative federalism abound. For example, red states and blue states alike objected to some of the PATRIOT Act’s expansive surveillance and detention rules as an attack on civil liberties. Rather than just complaining, they instructed their officials not to collect or share certain information with the feds unless the actions accorded with the states’ constitutions.
Or consider marijuana. Federal dependence on the states is so pronounced in criminal law that Vanderbilt law professor Robert Mikos has argued that states can “nullify” federal marijuana law by withdrawing enforcement resources. Colorado and Washington have already done so. These changes may be entrenched enough that even Jeff Sessions’s marijuana-hostile Department of Justice won’t be able to change the equation.
On other occasions, states have avoided a head-on confrontation with the feds and instead waged wars of attrition. For example, consider the response to the No Child Left Behind Act, perhaps the centerpiece of George W. Bush’s domestic policy. States accepted the federal grant money, but slow-walked reforms and often fudged testing standards. Their recalcitrance won out: The Bush Administration gave up and granted states so many waivers that they effectively gutted the federal program. The war has continued with the Obama Administration, which has struggled to rope states and localities into cooperating with its education agenda.
Next, states can also resist federal policy by engaging in what one might call “overcooperative federalism,” the federalism equivalent of a union “working to the rule.” Labor unions understand that a strike isn’t the only means of protest. They can achieve the same results by diligently heeding every safety and quality control regulation so that factories grind to a halt. Similarly, states can thwart federal mandates by insisting on following the law to the letter. Policies that require states and cities to run health and safety inspections as a prerequisite to federal action (in the housing voucher and environmental contexts, for example) are particularly susceptible to overcooperative federalism.
Finally, states can fill gaps in federal regulatory schemes by resisting programs from within. In the early 1990s, Michigan and Wisconsin, led by Republican governors, used federal money to enact “Welfare to Work” schemes within the very welfare programs they sought to topple. The results of their experiments won over Bill Clinton and led to national welfare reform. Congress never anticipated this result. But, like any administrative scheme, the states had discretion, and, in this case, red states used their discretion to great effect.
The last example should steel progressive backbones in advance of the coming health-care wars. If congressional Republicans succeed at repealing and replacing the Affordable Care Act, their plans will likely devolve substantial authority, largely in the form of grant money, to the states. Blue states can use this money to preserve their favorite parts of the current law, pushing health-care policy leftward from within the Republicans’ own framework.
Cities, too, have an uncooperative role to play, especially in the immigration context. The federal government relies heavily on city police departments to enforce federal law. Often, cities refuse to assist in deportation efforts—either because they disagree with those efforts on principle or because they believe that undocumented residents will be less likely to report crimes if they fear immigration consequences in the face of such uncooperative localism, there is little the federal government can do.
That’s presumably why the Trump Administration is so panicked about so-called “sanctuary cities.” These municipalities have refused to assist with certain types of deportation efforts (for instance, instructing police not to ask about a person’s immigration status). They now stand to stop Trump should he try to implement draconian deportation policies. Republicans have responded to this challenge by abandoning their stated commitment to decentralization and threatening to strip all federal funding from sanctuary cities. (Their proposal would cost New York City, for example, $10 billion.)
The Constitution, though, will stand in their way. Two important Supreme Court decisions—both supported by conservative justices—will make it difficult for Republicans to carry out their defunding threat. The first, Printz v. United States, decided in 1997, stands for the proposition that the federal government may not “commandeer” state and local workers by forcing them to carry out federal policy. In that case, the Court struck down a gun-control provision that required local law enforcement to carry out background checks, effectively ensuring that uncooperative federalism would be here to stay.
The second decision involved the Affordable Care Act. In a coda to the decision upholding the constitutionality of the Act’s individual mandate, Chief Justice John Roberts (with six other Justices in agreement), held that the Obama Administration could not force states to expand Medicaid by threatening to strip them of all Medicaid funding. The Court was troubled by the magnitude of the threat and the weak connection between the existing Medicaid program and the changes made by the ACA. If stripping federal funding for a program enacted within the same statutory scheme is a problem, then there’s little chance that Congress can strip all federal funding across all programs simply because states refuse to take part in one of them.
So, as a result of the federalism doctrine created by conservative justices, President Trump and the GOP-dominated Congress don’t have many sticks with which to bludgeon uncooperative states and cities. Their best bet for getting things done mostly involves carrots. This creates a heavy incentive for moderation and compromise. If Trump and his allies want to enact national policy, they must build a national consensus. At the very least, they will need to compromise enough to make their policies palatable to the other side. Just ask the Obama Administration, which had to grant red states waivers and other incentives to persuade them to expand health-care coverage.
To be sure, uncooperative federalism will not always result in a progressive victory. If President Trump spends enough political capital, he’ll surely win some of his battles against blue cities and states. But he cannot win the war. The federal government doesn’t have the resources to carry out all of the new Congress’s proposals. Spending time and money to crack down on marijuana, for example, takes resources away from fights over immigration or climate change.
The federal government cannot hire its own cops or teachers or put its own bureaucrats at every desk. Even if Trump doesn’t have to make nice with Democrats on the Hill, he’ll need the support of America’s progressive enclaves to actually get things done. A federal program that doesn’t affect California, New York, and Illinois—to say nothing of Houston, Atlanta, and Phoenix—won’t touch a huge portion of America. If progressive leaders hold their ground, they can shield their constituents from the policies they most oppose and maybe even force the new Administration to seek compromise.
Enforcing Federal Law
Uncooperative federalism won’t work for everything progressives care about. The Trump agenda is largely deregulatory—coal companies and Wall Street alike are looking forward to less federal regulation and enforcement. Often, Washington Republicans won’t bother to repeal a statute or undo a regulation, because doing so takes time and risks legal challenges. Instead, they’ll simply announce that they won’t enforce the law, just as the Obama Administration has done with certain marijuana and immigration laws.
If cities and states care about the laws that Trump plans to abandon, they should figure out how to enforce those laws themselves. Here, they might take guidance from California, the “superstate” of the progressive federalism pantheon. California prohibits businesses from engaging in unlawful, unfair, or fraudulent activities. Because “unlawful” is defined to include those that violate federal statutes and regulations, California’s Attorney General can sue over many violations of federal law; if he wins, he can shut down the unlawful practice and seek substantial fines.
Better yet, California realized that its attorney general’s office cannot keep every business in the state in check all by itself. So it empowers all counties, as well as large cities, to bring suit to enforce this law. When these cities and counties do so, they act on behalf of the State of California and can seek the same expansive remedies as the attorney general. The San Francisco City Attorney’s Office, with which both of us work, has used this power to great effect: It has sued tax preparers, mortgage lenders, and prescription drug companies for violating federal law.
California’s statute allows city and state officials to protect their residents from harms that a municipal ordinance or state law might not cure. It creates, in effect, a standing army of civil attorneys to enforce federal laws that have fallen through the cracks. These lawsuits often reach beyond California’s borders, allowing city and state officials to play a role in shaping nationwide policy.
Blue cities and states can learn from the San Francisco model. If they were to pass a law like California’s, empowering state attorneys general and city attorneys to sue in order to enforce federal law, they could do the work that the Department of Justice might neglect in the coming years.
Promising areas to start include the environment and consumer protection. For all Trump’s bluster about repealing the Environmental Protection Agency’s Clean Power Plan and other regulations, the rollback process may take years, if it happens at all. Until then, these regulations will remain on the books, and cities and states can work to keep businesses in compliance, even if federal enforcement is lax. Similarly, even if congressional Republicans succeed at neutering the Consumer Financial Protection Bureau, many of its rules will remain in effect, and state attorneys general will be able to enforce them. Protecting a state or city’s residents from financial fraud is an effective—and sure-to-be popular—method of progressive resistance.
Even when the Trump Administration repeals a statute or rescinds a regulation, leaving no law to enforce, states and cities can often make law themselves. As they do so, they can take advantage of another powerful weapon in the federalist toolkit: the “spillover.”
When one state regulates, it often affects its neighbors. When Texas insisted that its textbooks question evolution, for instance, its market power ensured that textbooks used in blue states did the same. When Virginia made it easy to buy a gun, guns flooded into New York City despite its rigorous firearms prohibitions. When West Virginia failed to regulate pollution, toxic clouds floated over Ohio.
Spillovers, like federalism, aren’t just the tools of conservative governments. Economists would call spillovers an “externality,” and externalities can be positive or negative depending on your point of view. Just as there are spillovers conservatives cheer, there are some spillovers for progressives to celebrate as well.
Consider car emissions. Even if the Trump Administration were to lower environmental standards to protect gas-guzzling cars, it wouldn’t matter. Why? Because California has set higher emissions standards than the federal government. No company wants to give up on the California market. As a result, all cars, whether sold in San Francisco or Texarkana, meet California’s high standards.
California is an unusual state. It is the biggest in the nation, with almost 40 million residents. Were it a country, it would be the sixth-largest economy in the world. Its economic significance means that it can enact sweeping nationwide regulation even though it nominally regulates only itself. Democrats have won a super-majority in both houses of the California legislature, and its governor, Jerry Brown, seems to be spoiling for the fight against Trump. The state is more than capable of sending some more spillovers other states’ ways.
Like uncooperative federalism, spillovers are a form of agenda-setting—they force debate on issues Washington might want to avoid. But they are also a tool for encouraging compromise. If left to their own devices, politicians in red and blue states will rarely negotiate with their colleagues on the other side. But when a liberal policy spills over to a conservative state (or vice-versa), the other half of the country is impossible to ignore. Politicians must reach out across state or party lines to fix the problem. Spillovers thus force politicking, negotiation, and moderation. They force politicians to do their jobs, in other words.
The possibility of progressive spillovers answers another progressive objection to federalism. Liberals are often concerned that federalism leaves too many people behind. They worry that those who are most in need of government action are unaided by blue-state policies. But sometimes that worry is misguided. If New York regulates lead in toys, children everywhere will be safer because of spillovers. If Illinois increases its minimum wage, that may pressure businesses to raise salaries nationwide.
Cities can create spillovers, too. Here, liberal municipalities might take guidance from Portland, Oregon. Portland was concerned about income inequality and wasn’t willing to wait for Washington to act. So it enacted a tax surcharge on all publicly traded companies whose CEOs are paid more than one hundred times its median worker. The tax will affect hundreds of companies that do business in Portland and would be easy for other jurisdictions with business taxes to adopt. If enough cities do so, they’ll affect inequality far beyond their borders.
Winning the War of Ideas
As mentioned, many think of federalism as a means of entrenching the worst aspects of our politics. But it can also be a tool to change our politics for the better. Many of the best progressive ideas were born in cities and states, and social movements have long used state and local governments as testing grounds for their ideas.
The most remarkable example in recent years has been the same-sex marriage movement. LGBT advocates realized that nationwide marriage equality would be a heavy lift. So instead they started local—first in Hawaii, then in Massachusetts, then in San Francisco. Some early state and local battles were lost, but same-sex marriage proponents used those fights as staging grounds for organizing and debate. This process built popular acceptance of same-sex marriage and explains why the Supreme Court’s nationwide ruling in Obergefell v. Hodges—a decision that would surely have caused intense controversy before states started to act—was greeted enthusiastically by an overwhelming majority of Americans.
Many crown jewels of the national progressive agenda are similarly the product of progressive federalism. The Affordable Care Act, for example, has its origins in Massachusetts, where it was enacted by then-governor Mitt Romney. A regional initiative of ten northeastern states laid the groundwork for the Clean Power Plan. If the next Democratic presidential nominee pushes for universal pre-kindergarten, he or she can look to states and cities for support: Places as different as Oklahoma and New York City have successfully implemented the policy.
If progressives want to take a lesson from the conservative handbook, they will have to consider which parts of the equality project—reforming immigration, policing, sentencing, to give just a few examples—they can directly advance. They should remember the crucial lessons of the same-sex marriage movement: In the United States, change generally comes from the bottom, not from the top. And they should remember that working through state and local institutions to enact progressive ideas is just as important as opposing whatever comes out of Washington. Social movements need pragmatic insiders, forging compromise from within, not just principled outsiders putting pressure from without.
Finally, states and cities should remember that they have the power to set the agenda. In the Obama years, red states took full advantage of their power to shape the national conversation. They enacted tough abortion limitations that forced that issue to the front of the political agenda. They sought to reframe the same-sex marriage debate into one about bakers and florists by enacting expansive religious freedom legislation. And they liberalized gun regulations at a time when the national consensus seemed poised to shift the other way.
These states understood that action can grab headlines and shape debate in a way that protest alone simply cannot. If blue states and cities wish to follow suit, they should take early lessons from Jerry Brown and Michael Bloomberg. The former made headlines in December by boldly claiming that California would launch its own satellites if the federal government abandoned its climate research. The latter drew attention to environmental issues by pledging that progressive cities would seek to join the Paris climate agreement if the Trump Administration withdraws. These sorts of bold pronouncements are not mere bluster. Rather, they’re essential for keeping important issues in the news and for denying President Trump sole control of the political agenda.
We don’t mean to suggest that federalism is a cure-all for either progressives or conservatives. During the next four years, many of the President’s actions will be hard to counter. Heavily indebted cities and states may find fighting the federal government is too expensive. And local politicians will always have to devote time and resources to addressing local concerns.
But progressives would be foolish to treat cities and states as nothing more than enclaves sheltered from national policies they don’t like. They can use all the tools we’ve suggested to encourage moderation and reshape the national conversation. Federalism is for everyone, and it’s time that liberals took notice.