Mimesis Law
23 September 2020

How The Trump Resistance Can Learn To Stop Worrying And Love Federalism

January 24, 2017 (Fault Lines)The Trump presidency is about four days old at this point. That’s not too early for 2020 positioning to begin, and it’s not too late to write upon the mostly blank President Trump slate. Josh Blackman recently wrote a piece for the National Review titled, “How the States Can Help Trump Make Federalism Great Again.”

Apparently Josh didn’t get the memo that Jeff Sessions’s Department of Justice is going to be something like the Schutzstaffel. According to the Pink Hats, and their allies, Session is bad for marijuana users, bad for police reform, bad for women, and bad for just about everyone. In particular, civil rights, and the supposed lack of enforcement of them, is a major rallying cry. Fault Lines contributor Sam Bieler discusses this at length here.

Sam, like Josh, points at the other layers of government and calls on them to stop sleeping on the job and oversee the criminal justice system. After all, they have primary primary responsibility for overseeing their police. Plus, Sessions has expressed support for federalism. So, the absence of the feds is not a legal problem; it’s a political one. If we can get hundreds of thousands of people to march on D.C., some while wearing vagina costumes, then it should be no matter to pressure local figures to take up the slack. Right?

Josh argues that the states can actually assist Trump in these areas of agreement. He points to pending litigation against states, where the attorneys general can hammer out a quick resolution or outright dismissal. These cases are likely civil rights and environmental cases. State universities dealing with ‘Dear Colleague’ letters might get some relief thanks to this new found cooperation.

In those cases where the state acts or refuses to act and the feds are agreeable, then signs suggest that Trump will support federalism. But those outcomes represent the easy cases. It is less clear what the administration will do when states acts or refuses to act in ways it finds disagreeable. Josh, like Ilya Somin at Volokh Conspiracy, points to sanctuary cities as being a place of obvious friction.

Presumably, I’ll-build-a-beautiful-wall President Trump will take steps to directly or indirectly attack these cities. If President Trump wants to withhold funds, then the state might try to point to the ACA precedent. Yesterday’s dagger into the heart of a progressive program could be a shield for today’s progressive program. But when you think like a grasshopper, never imagining political winter, you likely overlooked the potential upside of the case.

If President Trump wants to go further and force state actors to participate in mass deportation, then the late Justice Scalia might lend them a hand. Back in the day when firearm restrictions had some political legs, the federal government attempted to commandeer local law enforcement into assisting with background checks. Again, the defeat of a gun control program was a bitter blow, but with the passage of time, that loss doesn’t look so terrible now. Likewise, suits demanding national injunctions were a pebble in the shoe of progressives, but now they represent a weapon to wield against President Trump.

It has been said that the law and politics are downstream from culture. And it’s easier to pass a law, which forces someone to comply at gunpoint than it is to persuade and explain. Together it is a quick couple of steps to arresting and imprisoning someone for refusing to bake a cake for a gay wedding. When “your side” gets to write the rules and order law enforcement around, it’s easy to forget principles. Whether stated or unstated, the raw exercise of power is all that matters.

Ilya Somin has discussed that federalism is a sort of insurance, protecting you when the government falls into the hands of your adversaries. He then quotes Lord Acton:

At all times sincere friends of freedom have been rare, and its triumphs have been due to minorities, that have prevailed by associating themselves with auxiliaries whose objects often differed from their own.

The staunch “Never Trumpers” have taken to calling themselves #TheResistance, while using a notation of an electrical resister for their symbol. Okay. Right on. They can go on and have their little club, marches, and petition drives, and at the end of 4-8 years, they’ll have accomplished little.

The stubborn majority can indeed create change, but only if you have a reason for someone to listen. For example, the Montgomery bus boycott prevailed in large measure because 75% of the paying customers stopped riding—rather than merely something easy done for show. If you’ve ever driven by a union picket line, then you know how quickly you forget those gestures. But when someone hits your pocketbook, you remember.

To that end, there are political issues, the Resistance, libertarians, and Republican Never Trumpers can find common cause on. Criminal justice reform is one of those areas. To date, it appears that a stubborn few, in the right positions, have held up the reform. (There is that idea again.) Instead of having protests and calling opponents names, perhaps cooperation on related matters will bear fruit.

Understandably, those who oppose emptying out the federal prisons often see incarceration as a bulwark against future crime. Another approach might be to simply reduce the number of crimes the feds have jurisdiction over. A strong argument can be made to allow states to handle most drug and gun crime. States can pressure Congress and the Attorney General to stop federalizing local crimes. Moreover, reducing the size of agencies like the Department of Justice will force it to re-evaluate priorities, hopefully leaving more street crime at the state level.

Similarly, no one at the state level wants the feds in their cities, consent decree in hand. But there is considerable pressure to enact police reform and accountability. Rather than try to have a court and an agency in D.C. run a local police department, more qualifications can be imposed on federal grants.

If you didn’t know, the feds kick down a lot of money to state agencies that go to pay overtime for task forces, victim assistance, drug prosecutions, and so on. Requiring police agencies that receive these funds to have a policy to call in outside investigators and prosecutors on police shootings would be an easy way to get reform. And after a while, it becomes the custom and no one looks back.

Medical marijuana is another issue, but probably unlikely to succeed politically. But hey, we now have President Donald J. Trump. It’s become fashionable, thanks to the Institute for Justice, to pass laws abolishing civil forfeiture. Usually part of the new scheme is some provision prohibiting the state law enforcement from getting around this through federal participation. A similar provision could prohibit the referral of medical marijuana cases to the feds for prosecution and providing any voluntary assistance in the case.

All of this lacks the attention grabbing Nazi punching. It lacks the obvious sexiness of eliminating mandatory minimums and pardoning all non-violent drug offenders. But the real question is, do you want to achieve the outcome you want, or do you simply want to virtue signal?

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