The term “states’ rights” often conjures up images of Jim Crow segregation and the Civil Rights movement, of governors, sheriffs and local officials who abuse their power and violate the rights of their citizens. In the past, under those circumstances, we’ve turned to the federal government as a last resort to protect our rights from oppressive state and local governments. But what if the issue of states’ rights is turned on its head, and the states are actually doing the hard work of preserving democracy from an oppressive, overreaching federal government?
Welcome to the new reality of the Trump era. Not very long ago, states’ rights was code for insidious and disastrous policies enacted at the state level, including slavery and secession, bans on interracial marriage, and voter suppression. Haters of democracy have long invoked states’ rights as a justification for the curtailment of liberties. Now the oppression is coming from the federal government; in response to President Trump’s executive orders—the Muslim travel ban, sanctuary cities, withdrawal from the Paris Accord—a cadre of governors and attorneys general are fighting back.
Chief among them is our state’s Josh Shapiro, who joined 17 other AGs who sued the Trump administration over the first travel ban. (Shapiro did not join the AGs who sued over the reworked executive order.) When Environmental Protection Agency Administrator Scott Pruitt announced cuts to regulations on methane and other pollutants, Shapiro and 13 other state AGs sued the EPA to intervene. The Pennsylvania Attorney General joined 19 of his colleagues across the nation in affirming support for the Paris Climate Agreement, and 32 AGs in opposing federal cuts to legal services. And he sued the U.S. Department of Education and Secretary Betsy DeVos for abandoning federal protections on abusive student loan practices.
We’ve long thought of the three branches of federal government as checks on one another. In May, Shapiro delivered the commencement address at Temple University’s Beasley School of Law, and made it clear that perhaps the greatest check on runaway federal power belongs to the states.
“If the President is doing something that protects the rights of the people, I’ll support it,” Shapiro says. “But if he’s undermining it, I’ll always support the rule of law.”
“Fundamental to who we are is that we are not ruled by a king but rather the power of our government emanates from the people whose rights act as specific checks on the powers of our leaders,” Shapiro said. “That principle is being tested again today. But to limit our view of checks and balances as merely horizontal and federal misses a key element of our democracy, which is that states also serve as a check on the federal structure…Here in Pennsylvania, voters elected Donald Trump as President and me—a progressive Democrat—as the Commonwealth’s Attorney General. Perhaps these voters intuitively understood…that State’s rights can not only be a shield against federal overreach, but a sword for protecting and advancing individual rights.”
It seems that Shapiro is actively rebranding the role of a state Attorney General in these Trumpian times. Last month, he appeared at the Aspen Ideas Festival in conversation with Yale Law School Dean Heather Gerken, and made his case: “I think ultimately, attorneys general post January 20th—and I say this with respect to all the other elected officials—are probably the most important elected officials in our democracy.”
Counties getting in front of their state governments on the issues of the day is one thing, but states stepping up and standing up to the federal executive branch is quite another. When I caught up with Shapiro after his return from Aspen, I asked how he came to champion such an activist agenda. Turns out Shapiro has been beating the drum of the burgeoning movement to reconsider states’ rights for quite some time.
“I was talking about these issues through the campaign, on how the states can be a force for progressive change—long before Donald Trump thought he was going to be president,” Shapiro told me. “The states can be a progressive national force for change. It’s not about my policy differences with the president, but about making sure I am protecting the interests and rights of all Pennsylvanians.”
Make no mistake, Shapiro’s thinking represents a sea change in democratic governance. It represents a fundamental shift in our thinking of the Tenth Amendment, which reserves powers for the states that are not delegated to the feds.
If states’ rights can be justified to stand up to federal overreach, as Shapiro argues, is Pennsylvania far from the day when it’s used to restrict the power of Philadelphia to pass its own laws? The danger, in other words, of Shapiro’s states’ rights argument is that state power may be directed downward to the cities.
In fact, Shapiro is well aware that the movement has come to be called progressive federalism, as outlined by Jeffrey Rosen, CEO of the Constitution Center, in The New York Times last year—before Trump was even sworn in. Rosen describes Yale’s Gerken as the movement’s “intellectual guru” and quotes her defining progressive federalism as a way to create a decentralized system “where national minorities constitute local majorities,” thus allowing “minorities to protect themselves rather than look to courts as their source of solace.” In other words, now that all three branches of the federal government have fallen under conservative control, once big-government progressives have no choice but to focus on enacting change at the local level.
“I believe in the states and in states’ rights, and that term may not have been looked to with a positive feeling in the past,” Shapiro said. “But I think that right now, the states can be both a shield against federal overreach and unwarranted encroachment, and a sword to advance the rights of our states. As Justice Brandeis wrote, a state can be a great laboratory for democracy. And you’ve seen states actually advance the ball, and the federal government has followed. A most recent example is with marriage equality. States like Pennsylvania advanced that cause and ultimately the federal government followed.”
Shapiro’s Brandeis reference comes from a dissent in the 1932 case, New State Ice Co. v. Liebmann: “Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous 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.”
“I think that right now, the states can be both a shield against federal overreach and unwarranted encroachment, and a sword to advance the rights of our states,” Shapiro says. “A most recent example is with marriage equality. States like Pennsylvania advanced that cause and ultimately the federal government followed.”
But beware a backlash. Nationwide, Republican state legislatures have introduced 140 measures preempting local government action this year. Nineteen have become law, including three so far in Texas. These so-called preemption measures are bills designed to limit the power of progressive cities to pass their own laws, on issues ranging from immigration enforcement to minimum wage to transgender bathroom choice. In Texas, where eight proposed measures would take powers away from city governments, Republican Governor Greg Abbott has done little to hide his disdain for the progressive city of Austin.
If states’ rights can be justified to stand up to federal overreach, as Shapiro argues, is Pennsylvania far from the day when it’s used to restrict the power of Philadelphia to pass its own laws? The danger, in other words, of Shapiro’s states’ rights argument is that state power may be directed downward to the cities, as Texas Governor Abbott intimated: “Tell me in the [U.S.] Constitution where it mentions cities,” he told thehill.com. “Tell me where it mentions counties. The way the country was created, the way it was designed, the architecture of the United States of America puts states at the centerpiece. States create counties and cities and give them the authority that they can have.”
On one thing Abbott and Shapiro agree: States have vast powers. That’s why, at a time when a senior White House adviser like Stephen Miller can chillingly proclaim that the president’s executive powers “will not be questioned,” Shapiro’s activism is much needed. Yes, it can open a Pandora’s Box in terms of state power restricting local progressive law, but, as Shapiro warns, someone has to step up if Congress isn’t standing up to a lawless presidency. “If the President is doing something that protects the rights of the people, I’ll support it,” Shapiro says. “But if he’s undermining it, I’ll always support the rule of law.”