Democrats are Becoming the Party of States’ Rights

Republicans have long accused Democrats of being the party of big federal government, but blue states are finding themselves in new territory as they advocate for states’ rights. Historically, Republicans have invoked the argument of states’ rights to oppose liberal federal legislation on issues from the Affordable Care Act to gun control to gay marriage, while Democrats have fought for more federal oversight on civil rights and business regulations. Yet, as Democratic states face gridlock in D.C. on issues from climate change to marijuana reform, they are arguing for a different version of the states’ rights argument: The federal government should not stand in the way of progressive state policies, even when they encroach on traditional areas of federal jurisdiction. This “progressive federalism” has led to highly publicized fights between blue states and the Trump administration on immigration, environmental regulations, and state laws legalizing cannabis. While these issues simmered under the surface during the Obama administration, they have been catapulted into the limelight during the Trump presidency.

For Democratic governors facing a Trump administration riddled with climate change deniers, including President Trump himself, climate change has become a powerful arena to assert state independence from federal policy. One such battle is playing out in California, one of the country’s most democratic states. Scott Pruitt, the former head of the EPA, tried to force California to abandon its stringent environmental regulations to conform to federal policies. California, which has long been granted exceptions by Washington to impose strict pollution requirements, was an obstacle for Pruitt’s plan to roll back emissions regulations. The fight in California highlights the flip-flop between Democrats and Republicans on states’ rights – Pruitt was one of the Republican Party’s staunchest defenders of them. In 2013, Pruitt led a lawsuit against the Affordable Care Act, arguing that the federal government’s creation of health insurance exchanges in Republican states which had refused to do so on their own was unconstitutional and “such a clear overreach by a federal agency directly impacts the ability of the states to make the exchange decision as Congress intended.” Yet when he joined the Trump administration’s EPA, he quickly changed his stance on state independence. In his quest to roll back emissions regulations, states’ rights became subordinate to the federal policy agenda. “Federalism doesn’t mean that one state can dictate to the rest of the country,” said Pruitt about California’s emissions laws, which other states have implemented as well.

California’s opposition to the Trump administration is not just an example of Democrats voicing their opposition to President Trump; it also points to a larger effort by the state to fill in the gaps of federal environmental policy with its own progressive climate laws. California has a long history of pursuing more stringent environmental policies than Washington. It has been granted waivers under the Clean Air Act since 1970, allowing it to impose stricter emissions regulations than the rest of the country. As the Trump administration unravels Obama’s climate legacy, California remains committed to its aggressive climate policies. Governor Jerry Brown announced that California would remain compliant with the Paris Climate Agreement, despite the Trump administration’s withdrawal from it, and has worked with foreign leaders on climate agreements.  It remains the only state with its own greenhouse gas emissions cap-and-trade system in the country. In an interview with Rolling Stone, Brown declared that “California is respecting the federal law, but we are doing our part to make sure that federal officials don’t run amok.”

"The “progressive federalism” embraced by Democratic states has allowed states to become laboratories of democracy in a very different way than the Republican Party approached the states’ rights argument."

New York, Washington, Oregon, Connecticut, Massachusetts, and Rhode Island have all vowed to follow the Paris climate accords as well.  These states also have a history of more stringent environmental legislation: When comprehensive climate change legislation failed to pass Congress in 2009, these states began imposing their own policies to reduce greenhouse gas emissions. In 2008, Massachusetts passed the Global Warming Solutions Act, one of the first comprehensive regulatory frameworks to reduce greenhouse gas emissions 80 percent from 1990 levels by 2050. In 2014, Rhode Island passed the Resilient Rhode Island Act, matching Massachusetts’ target reductions in emissions. New York passed the Clean Energy Standard in 2016, which required half of the state’s energy to come from renewable sources by 2030. These stricter regulations, however, have come under federal scrutiny for displacing federal law. In Democratic states, cities which are even more liberal are fighting for progressive climate change action through federal courts. New York City sued BP, Chevron, ConocoPhillips, and Exxon Mobil, among other oil companies, for their greenhouse gases emissions; the city relied on state nuisance laws to argue that these oil companies should pay for the city’s climate change mitigation programs. In 2011, the Supreme Court ruled that the Clean Air Act gave only the EPA the power to enforce and regulate emissions, superseding states’ ability to invoke nuisance laws. The lawsuit was thrown out in federal court because the judge reasoned that climate change must be addressed by the executive branch and Congress. Similar lawsuits have been brought by San Francisco and Oakland and have also been thrown out by federal judges.

The climate policies in these Democratic states promise to restructure their economies in fairly significant ways: Shifting from an overwhelmingly carbon based economy to one sourcing over half of its energy from solar, wind, and hydro sources requires an enormous mobilization of renewable energy. The effects of these policies are not kept within the states’ borders, either: Twelve states have agreed to follow California’s vehicle emissions regulations, effectively making 40 percent of American cars subject to California’s rules instead of federal ones. Similar to Republican states which banded together during the Obama administration to oppose federal action through the Affordable Care Act, Democratic states have joined the United States Climate Alliance in a commitment to the Paris Climate Agreement. Similarly, Democratic states which have legalized marijuana in opposition to federal policies have advocated for the rights of states to do so.

As more and more states legalized marijuana over the last decade, the Obama administration largely gave states the space to implement their own drug policies without federal interference. When Jeff Sessions was appointed Attorney General, the federal government took a very different approach. Instead of turning a blind eye to marijuana legalization, Sessions vowed to prosecute marijuana use as a federal crime and rescinded the Obama-era memo which largely left enforcement of marijuana laws to the states. Effectively, this freed federal prosecutors to enforce marijuana prohibitions in states which have legalized the drug.

Session’s announcement came just as California and Nevada were legalizing recreational marijuana. Democrats responded forcefully in opposition, with Senator Chuck Schumer tweeting “The Attorney General’s decision to rescind the Cole memo was a very bad one…I believe that the States should continue to be the labs of democracy when it comes to recreational & medical marijuana.” Referring to states as the “laboratories of democracy” has been a favorite phrase among Republicans; Schumer’s tweet was a reminder to Republicans of their long standing support for state independence. As Senate Minority Leader, Schumer indicated the Democratic Party’s embrace of state level reforms on drug policy, an unsurprising endorsement considering 74 percent of millenials support marijuana legalization and the Democrats increasingly rely on young voters. Facing a national prohibition on marijuana, Democrats support returning the issue to the states to solidify the popular state-by-state legalization of marijuana.

Senators Elizabeth Warren and Cory Booker supported legislation to officially delegate marijuana policy to the states in 2017. While the legislation did not get much attention, Democratic states have led the way in creating the most liberal marijuana laws in the country. The typically blue states of California, Oregon, Washington, Colorado, Vermont, Massachusetts, and Maine have legalized marijuana for recreational use. The federal government still classifies marijuana as a Schedule I drug, meaning any type of use is prohibited. By legalizing cannabis for medical and recreational use, Democratic states are depending on the federal government not enforcing the prohibition of cannabis. Not only are Democrats advocating for their states to have the independence to pursue new policies without federal interference, but they also anticipate that successful laws on the state level can translate to federal legislation. Experimenting with various progressive programs for marijuana legalization on the state level can provide a blueprint for national drug policy reform.

The “progressive federalism” embraced by Democratic states has allowed states to become laboratories of democracy in a very different way than the Republican Party approached the states’ rights argument. Understanding that an overhaul of marijuana policy or comprehensive climate change legislation is out of reach for the foreseeable future, blue states are not waiting on the federal government. Instead, they have chosen to implement their own progressive policies on climate change and marijuana reform, even when these laws directly clash with federal jurisdiction. The Clean Air Act is back in court, but the players have switched sides: now it is Democrats, not Republicans, arguing against federal overreach. Yet these lawsuits involving Democratic states are very different than the lawsuits between Republican states and the Obama administration: they are fighting to implement even more regulations than the federal government, not roll them back. Democrats have commandeered the Republican arguments for state autonomy for marijuana legalization, putting Republicans in the position of defending federal power over the states. Republicans who once declared themselves staunch defenders of states’ rights find themselves in a reactionary role against Democratic governors who are determined to bring about change through any means possible. This trend is only likely to accelerate, considering the Democrats gained 7 governor’s seats and flipped many state legislatures in the 2018 cycle. The goal of progressive federalism is not to only create more autonomous states, but to also push forward liberal policies on the state level when national action is out of reach. Democrats have different motives to advocate for states’ rights than Republicans, but challenging federal power has pushed forward their agenda in a similarly effective way.

Photo: “Governor Jerry Brown”

About the Author

Cartie Werthman '21 is a Senior Staff Writer for the US Section of the Brown Political Review. Cartie can be reached at carter_werthman@brown.edu

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