Conservative Innovators

How States Are Challenging Federal Power

Ben Merriman

• Publisher: University of Chicago Press
• Year: 2019
• ISBN:
  9780226620459
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

As American politics has become increasingly polarized, gridlock at the federal level has led to a greater reliance on state governments to get things done. But this arrangement depends a great deal on state cooperation, and not all state officials have chosen to cooperate. Some have opted for conflict with the federal government. Conservative Innovators traces the activity of far-right conservatives in Kansas who have in the past decade used the powers of state-level offices to fight federal regulation on a range of topics from gun control to voting processes to Medicaid. Telling their story, Ben Merriman then expands the scope of the book to look at the tactics used by conservative state governments across the country to resist federal regulations, including coordinated lawsuits by state attorneys general, refusals to accept federal funds and spending mandates, and the creation of programs designed to restrict voting rights. Through this combination of state-initiated lawsuits and new administrative practices, these state officials weakened or halted major parts of the Obama Administration's healthcare, environmental protection, and immigration agendas and eroded federal voting rights protections. Conservative Innovators argues that American federalism is entering a new, conflict-ridden era that will make state governments more important in American life than they have been at any time in the past century.

CHAPTER ONE

Choosing Conflict

The Emerging State Challenge to Federal Power

The US federal government grew dramatically over the course of the twentieth century. Congress raises and disposes of sums measured in trillions of dollars. The modern presidency is the symbolic center around which the rest of American political life revolves. Holding the symbolic role entirely aside, the president sits at the head of a bureaucracy of millions. The Supreme Court, which a century ago was occupied mainly with business disputes, is now routinely called on to settle some of the country’s most urgent, divisive political questions. This view of the growth of federal power is a familiar story, and a true one.

However, generations after the New Deal, the civil rights era, and the Great Society, it is worth remembering how much of the ordinary, important business of American government is still conducted by the states. The very fact of a person’s birth in the United States will be recorded in a state-issued document, a birth certificate. The basic means of establishing one’s identity in a host of routine interactions—a driver’s license or the equivalent—is also state issued. Most young people study in public schools operated with heavy subsidies from the state government, which may also have a substantial role in deciding what classes students take, what textbooks they read, and how their academic progress is measured. Most people seeking a higher education will enroll at institutions operated by states.

People who marry will do so under a state’s law; entrepreneurs form their businesses under state law, too. Those who register to vote are most likely to do so at a state office. However they register, their names are duly recorded on a state-maintained roll. Aside from a few elected offices that appear on ballots everywhere, the range of choices voters have about their government will depend on what powers state constitutions have afforded the electorate. It is wholly in the power of states to decide how free local governments are to make their own decisions. For ordinary Americans, federal tax day comes once a year, but, in much of the country, people pay taxes to their state every time they walk into a store.

Although the federal government provides much of the money, the main programs of aid available to people who are poor or in need are administered by states, according to rules over which states have a great deal of control. Many environmental standards are defined federally, but it falls to state government to make sure that the water coming out of the tap is safe to drink. Even in matters like immigration, the federal government is heavily reliant on state and local governments to carry out its policy. Such examples—all of which are relevant to the particular matters of law and policy discussed in this book—suggest that state governments are important and powerful even in an era when politics seems to have become more national. The activity of state officials has, in fact, had a decisive effect on political life in the twenty-first century, and, though the current happenings in the White House and on Capitol Hill seem especially momentous, this book will argue that state government is likely to become more rather than less important in the coming years.

The Obama administration began in 2009 with what appeared to be a strong mandate to change American government. In short order, it was pushing through legislation to jump-start the faltering American economy, reform the finance industry, and dramatically expand access to health care. When the administration ended in 2017, things looked rather different. Important parts of the health care reforms, the Patient Protection and Affordable Care Act (ACA), had never gone into effect; those that had looked vulnerable to repeal. The administration’s environmental protection and immigration agenda remained mostly unimplemented, having spent year after year mired in complex lawsuits. Although the administration had a strong interest in protecting civil rights, many rights protections—especially the right to vote—became much weaker during Obama’s tenure. The two major political parties drifted further and further away from each other ideologically, and bipartisan cooperation, which was not particularly extensive before, seemed little more than a distant memory—American political life had become as polarized as it had been at any time in recent history. This book is an effort to explain what changed in those eight years. That explanation has everything to do with state governments.

The beginning of the Obama administration prompted a rapid intensification of a partisan polarization that had existed before. This quick process occurred after a long period of time in which executive powers had grown. These two patterns, in conjunction, created remarkably favorable conditions for state-level executive officeholders, such as governors and attorneys general, to challenge the Obama administration’s policies. Those state offices grew in parallel with the expansion of the federal government and now provide their occupants with ample resources and discretion over how those resources are used. Especially after the 2010 general election, many occupants of those offices were staunchly conservative opponents of the Obama administration—and of the federal government more generally. Those officials were remarkably successful in pursuing a handful of familiar conservative goals through a blend of new legal and administrative behaviors. Early in the Trump administration, there were signs that those approaches were shifting familiar patterns of partisan disagreement: conflict between different levels of government is becoming more important.

The Conservative Innovators: New Means for Familiar Ends

This book is about a group of state-level conservative political figures who have, in the past decade, used the strong powers of modern state-level executive offices to seek changes in policy at all levels of government. This has included a strong challenge to federal power that has produced important, tangible effects on policy: state litigation prevented the implementation of major immigration reforms as well as major environmental policies such as the Clean Power Plan. A combination of litigation and state administrative behavior slowed and weakened the implementation of the ACA and has eroded federal voting rights protections. Conservative state opposition to the Obama administration also set in motion trends in judicial thinking and political patterns of intergovernmental relations whose eventual outcomes are not yet known.

The political actors at the core of this argument have important similarities. They are nearly all white men somewhere in middle age. They are all Republicans, and, except for a few who might regard themselves primarily as libertarians, they regard themselves as conservatives. A great many of them were educated as lawyers in the period since the emergence of the conservative legal movement within the academy. It is likely that many of them know each other: governors, attorneys general, and secretaries of state have the opportunity to interact within both partisan and nonpartisan organizations meant to facilitate exchange between such officeholders. For all that, there is not much evidence that this group is entirely self-conscious of itself as a movement pursuing a particular program. It appears closer to the mark to say that it is a group of individuals who have an affinity rooted in educational formation, political ideology, and party allegiance and who have acted similarly in response to a similar structure of opportunities. Because these actors do not have a specific name or subscribe to some statement of principles, it is worthwhile to summarize at the start the goals and commitments suggested by their administrative, legal, and policy actions:

1. 1. Continuously reduce taxation and government expenditure, preferably by automatic or compulsory mechanisms.
2. 2. Where possible, use private or market means to provide services currently delivered by government; limit the political influence of public sector labor unions.
3. 3. Reduce the scope of federal agency discretion, particularly in environmental and regulatory matters.
4. 4. Resist the implementation of the ACA; expand state discretion in the implementation of federal health and social welfare programs.
5. 5. Limit federal regulation and increase the state regulation of elections.
6. 6. Limit government oversight of commercial activity and the labor market at all levels.
7. 7. Finally (for some state officials), strictly enforce immigration law by resisting federal efforts at liberalization, expanding state power to undertake enforcement independently, and curtailing local discretion.

This list provides something definite to refer to, and these actors will, subsequently, be described simply as conservative. These ends, plainly stated, reflect familiar conservative aims: relatively unfettered economic activity, limitations on taxation and spending for social welfare or public goods, and devolution of powers from the federal to the state level. The novelty to be found in recent years arises from an expanded repertoire of means used to advance these ends, including changes in administrative behaviors, changes in legal strategy, and a continuous interplay of administrative and legal actions.

Administratively, some state officeholders have shown a new readiness to exercise powers they have always possessed. Many states refused federal funds, most notably federal funding for Medicaid expansion. States have also been more likely to take an uncooperative stance on federal policies that rely on state implementation; the devices of noncooperation are numerous and substantial. In several areas, states have also shown an interest in using interstate compacts as a means of formally coordinating state opposition to federal policy.

Legally, a major feature of the shift is greater state involvement in litigation against the federal government. This possesses several dimensions. First, many states have taken a direct role in cases that might previously have been handled by conservative public interest law firms. Direct state incorporation of these priorities has provided conservatives with the large, stable supply of legal resources available to state attorneys general. It has also made it possible to press certain kinds of legal claims not available to private actors. Second, state-initiated litigation against the Obama administration produced quantitative increases in the number of cases reaching the Supreme Court and in the number of states participating in such cases, either as parties or amici.

The legal arguments and strategies used have also shifted. State litigants have been less reliant on traditional states’ rights arguments or claims grounded directly in constitutional provisions about federalism. Rather, many of their most notable successes have been in cases dealing with administrative law and procedure—the body of statute and precedent that serves, in practice, as the legal framework of the modern federal administrative state. Conservative state litigation has also been more likely to have some grounding in novel positive rights conferred by state laws or constitutions. This is an emulation—very probably conscious—of a state-based positive rights strategy that progressive groups used with great success over the course of the twentieth century.

Further, there has been a continuous interaction between administrative and legal behavior. States have often enacted policies or laws that make it possible to test or revisit a settled question of law, further explore the possibilities of a new ruling, or employ administrative techniques that are newly permissible. In some areas, litigation and state policy activity provide redundant means of seeking the same goal. In others, state policy actions, federal actions, and litigation proceed iteratively. This iteration has been especially powerful because many states have shown a lively interest in searching out lateral applications of new precedents and have no shortage of time, money, or legal will.

Although the past decade of behavior of conservative state executive officeholders tends toward a readily intelligible set of ends, this activity did not necessarily follow a consciously defined strategy; indeed, because so much of the action is responsive to new opportunities opened by litigation outcomes, the current strategy could not have been defined a priori. The state challenge to federal power has arisen from a creative, somewhat improvisational manner of combining means. Thus, even though the legal dimension of this activity has many of the qualities of earlier judicially focused movements, this action does not strongly resemble a campaign or mobilization that is playing for a particular outcome or legal rule. It suggests, rather, the emergence of litigation as a way of political life, an inefficient, slow, costly, but powerful means of exploring the law for different avenues toward a general end.

Federal Power: A Negotiated Institutional and Partisan Arrangement

The state activity studied here is clearly responsive to the policies of the Obama administration and was in important respects enabled by the mobilization of the Tea Party. However, the possibility of this particular approach arises from the interrelated set of arrangements that gave rise to a large national government in the United States over the course of the twentieth century. That institutional and intergovernmental settlement rested on a mix of material self-interest and party consensus; its basis in the Constitution and statutory law is relatively weak and to some degree dependent on the judiciary’s willingness not to consider certain questions about the behavior of the federal executive. Over time, this particular approach to building a large national administrative and welfare state has significantly strengthened the executive at both the federal and the state levels. The manner in which national government has expanded has gradually made it materially and legally easier for states to challenge its activity.

While the US Constitution outlined a schematic structure for government, it included remarkably few details about the practical business of administration. A handful of vague, brief clauses have been the most important constitutional founts of federal power (see Rohr 1986). Nor has the Constitution been subject to later amendment that does much to specify how a national administration should work or how powers are to be allocated between levels of government. The development of a large, functional national government possessing a meaningful measure of legitimacy has therefore been a result of continuous negotiation and adaptation. Two patterns have been especially significant in this development. First, many powers of government are shared rather than exclusively national. The expansion of national government has relied to a great degree on voluntary state compliance, secured by fiscal inducements or states’ sympathy with federal policy goals. Second, political parties have played a large role in producing a reasonably stable intergovernmental consensus; where federal activity has arisen and persisted, it is often because both major parties find it materially or ideologically agreeable, though not necessarily for the same reasons.

Although a country the size of the United States could never have been run without some form of large, continuously administered government (see Mashaw 2012), the present form of American government should not be treated as inevitable. At important historical moments, matters could conceivably have developed differently even if certain paths, once started on, have markedly constrained subsequent developments (Orren and Skowronek 2004). And, although many of the institutions of American government now appear well entrenched, they ought not to be regarded as permanent. They could be disarranged by the simple withdrawal of cooperation by certain political actors—a bold step but in many areas of policy one firmly within the legal power of the states. Serious pressure for the judiciary to scrutinize the legal bases of national government could also yield significant changes. As this book will show, certain of these foundations are surprisingly fragile.

“Fiscal” federalism is widely recognized as a defining feature of the intergovernmental system emerging from the New Deal and the Great Society. But patterns of federalism defined through fiscal transfers and federal investments are much deeper; the intergovernmental politics of spending have always had a defining role in American government structure. The pattern was already visible in the development of a railroad network before the Civil War (Callen 2016), and the exigencies of the Civil War likewise spurred a marked expansion of the federal government (Bensel 1990), shored up to a great degree by expanded power to raise revenue. A negotiated, cooperative federalism sustained by fiscal transfers was already emerging by the opening of the Progressive Era (Johnson 2007), and the creation of a permanent federal income tax in the early twentieth century created a situation in which “the federal government had limited powers but vast funds” (Tani 2016, 4). The period from 1900 to the early 1930s was therefore one that saw a remarkable range of state experiments in social welfare provision (Clemens 1997; Amenta 1998), whose varying success partially dictated the structure of the federal social welfare programs emerging from the New Deal (Howard 2002).

The New Deal rested on a novel and expansive view of the powers of the federal government. The boldest assertions of this power were rejected by the Supreme Court or, in the case of the integrated regional authority model exemplified by the Tennessee Valley Authority, checked by determined political resistance (O’Neill 2002). The arrangement arising from the New Deal, then, was one of state implementation and government restructuring secured—often begrudgingly—by fiscal transfers (Tani 2016). Legally, the period saw a dramatic expansion of state as well as federal powers (Gardbaum 1997). The result has been a complex, non-zero-sum political ecology that includes both bureaucratic and partisan actors (see Zackin 2011, 402–3) and a wide range of lobbies and interest groups that emerged as major political powers immediately before the New Deal (Hansen 1991; Clemens 1997).

Subsequent institutional development has largely continued along these lines. By the latter part of the twentieth century, intergovernmental relations were characterized by a vigorous pattern of jostling and negotiation (Oates 1972; Wright 1982). A defining question in this negotiation is the relationship of funds and mandates; states, predictably, generally prefer maximal discretion in how they can use federal funds and are most often resistant to positive mandates with little or no associated funding (Gormley 2006); at times, the structure of federal mandates has inspired considerable national debate (Mashaw and Calsyn 1996).

This abstract, summary view of intergovernmental fiscal linkages obscures an important reality: governments do not negotiate. Government is a collection of individuals who hold particular offices in which they carry out certain activities; the most important of those figures are elected partisans or appointees of elected partisans. A working administration and a reasonably stable, cooperative model of intergovernmental relations has therefore relied, in part, on the ability of political parties to coordinate officials’ actions, especially where law or formal institutional structure cannot directly mandate or execute this coordination. It has been noted above that the Constitution makes little formal provision for administration. It can be added that the Constitution not only did not contemplate a role for parties in American political life; it was drafted by people who were actively hostile to them and sought to fashion a set of government institutions that would frustrate their emergence and influence (Hofstadter 1969).

Yet parties—and a party system—immediately arose to provide a means to staff an administration, facilitate the interactions between branches of government, and simplify the task of lawmaking (Aldrich 2011). Indeed, before the administrative transformations of the twentieth century, even harsh critics of political parties acknowledged that a working government could not have arisen in the United States without relatively strong party organizations (Goodnow 2002, 164, 197). Although the separation of powers was meant, in part, to weaken parties, in practice parties have served a crucial role in safeguarding the separation of powers (Levinson and Pildes 2006).

Given their enduring role in making government administration function at all, it is unsurprising that parties have played a major role in defining a working intergovernmental arrangement. This is true, first, in the sense that the checks against accumulation of national power have been on the whole political rather than legal (Wechsler 1954; Kramer 2000). State political control over elections is an especially important mechanism (Nussbaumer 2013). At important historical moments, parties or party factions have significantly limited the expansion of the federal government, often for ill. For instance, the New Deal had a limited effect on labor rights or civil rights, in no small part because the southern Democrats in the New Deal coalition strongly opposed this (Hofstadter 1949; Katznelson, Geiger, and Kryder 1993). Indeed, southern Democrats delayed civil rights reforms by a generation (Finley 2008), and the eventual reforms were to a great extent judge made and backed by few direct, federal enforcement powers. Rights expansions in the period after the civil rights era have, likewise, been limited by party competition. New federal positive rights generally come with few associated administrative powers; this pattern of fragmentation and reliance on private enforcement is very much the result of the recurrence of divided national government.

The expansion of federal power, then, has proceeded as far as an implicit bipartisan consensus allowed. The preference of the Democratic Party for a larg...