Analysis: In Trump era, Democrats and Republicans switch sides on states’ rights

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By Dan Levine | SAN FRANCISCO

SAN FRANCISCO Five years ago, Oklahoma Attorney
General Scott Pruitt, now President Donald Trump’s nominee for
administrator of the Environmental Protection Agency, sat in the
front row as the U.S. Supreme Court debated the contentious
Affordable Care Act.

He was part of a coalition of Republican attorneys general
fighting President Barack Obama’s health law – better known as
Obamacare – based on a core party principle: that states’ rights
trump federal powers, and that programs like Obamacare represent
a radical overreach by the federal government.

Now, as Trump looks to undo Obama’s legacy and begin
constructing his own, Pruitt and other administration
Republicans are showing little interest in protecting states’
rights. Instead, they are embracing sweeping new environmental,
healthcare and immigration policies that are to be imposed on
all states.

At the same time Democrats, who over the last half-century
have zealously defended sacrosanct federal laws – such as the
Civil Rights Act of 1964 that tackled segregation – against
arguments that states should be allowed to chart their own way,
are now making plans to employ some of those very states’ rights
positions to fend off Trump administration policies they
disagree with.

“If (EPA nominee Pruitt) is going to argue states can go
their own way, then certainly we should be allowed to make the
exact same argument,” Hawaii Attorney General Douglas Chin, a
Democrat who opposes Pruitt’s nomination, told Reuters.

Pruitt’s office did not return repeated requests for
comment.

SPRAWLING FLIP-FLOP

The two parties’ switching of sides is evident across a
range of issues, including so-called sanctuary cities, the
environment and healthcare.

Sanctuary cities – an unofficial description of places where
local law enforcement refuses to report undocumented immigrants
to federal authorities – could be an early test, as Trump moves
to beef up federal immigration policies.

Trump threatened to cut federal funds for such cities on
Wednesday, as part of an executive order clamping down on
immigration..

Lawyers planning to challenge that action told Reuters they
will base part of their legal argument on one successful
approach Pruitt and his fellow attorneys general took against
Obamacare in the Supreme Court in 2012.

In that case, the court held that federal authorities could
not take away a state’s Medicaid funding for refusing to expand
the program. Although they won that part of the case, Pruitt and
his group failed to stop the national rollout of Obamacare.

Immigration advocates hope the logic employed by the Supreme
Court in that case will protect sanctuary cities against
threatened funding cuts.

However, Ken Cuccinelli, the former Republican attorney
general of Virginia who launched the legal challenge to
Obamacare, told Reuters he doubts courts will apply that ruling
to protect sanctuary cities.

Still, Cuccinelli said the new political dynamic will expose
Republican politicians who ran for office on a states’ rights
platform because it fit their policy agenda, rather than because
they were true believers.

“We may find out (which) folks were doing it for legal
reasons and purely political reasons,” he said.

Another early battle highlighting the reversal of positions
on states’ versus federal rights is likely to be the
environment.

California, as its governor made clear in a speech on
Tuesday, will fight any attempts to rein in the state’s sweeping
environmental laws, which go far beyond federal mandates. During
his confirmation hearings, Pruitt, on the other hand, refused to
commit to keeping a decades-old federal waiver that allows
California to set stricter emissions standards.

CONFLICT AS OLD AS THE COUNTRY

The debate over how power should be shared between states
and the federal government goes back to the founding of the
United States, when Federalists led by John Adams and Alexander
Hamilton argued for a strong central government, while Thomas
Jefferson’s Democratic-Republican Party saw states’ rights as a
necessary check against tyranny.

Jefferson’s faction eventually morphed into the Democratic
Party, which backed states’ rights to allow slavery leading up
to the Civil War of 1861-1865. The Democrats moved toward
greater reliance on federal powers in the 20th century, as they
fought battles over civil rights and regulating industry. Since
then, the two parties have been fairly consistent in their
stances, though on some issues they have occasionally swapped
positions.

Tension between states’ rights and federal power played out
time and again during Obama’s presidency, with states’ rights
supporters achieving a mixed record.

Republican-led states challenged Obama’s Clean Power Plan as
an example of federal overreach, in a case that is continuing.
Republican state attorneys general, including Pruitt,
successfully blocked an Obama executive order allowing work
permits for millions of undocumented immigrants, known as
Expanded DACA.

The Fifth U.S. Circuit Court of Appeals ultimately struck
down the Expanded DACA policy, and an evenly divided U.S.
Supreme Court let that ruling stand last year.

Harold Koh, a Yale Law School professor and a former adviser
to Trump’s presidential challenger Hillary Clinton, said that
even though he disagreed with the court’s reasoning in that
case, it could now be used to at least slow down new Trump
executive orders on immigration and beyond.

“The argument against DACA could come back to haunt them,”
Koh said.

Embracing states’ rights could also end up haunting
progressive groups during the next Democratic administration,
whenever that might be, said Julia Wilson, chief executive of
legal aid organization OneJustice.

“That is exactly what’s under conversation right now in the
community,” she said.



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