One look at the upcoming cases before the Supreme Court and the federal courts of appeal would suggest that states and the national government have a destructively adversarial relationship. Should we be worried about this constant conflict?
In some ways, it is good when state governments and the national government are at odds-that’s one important way to keep each party in check. That’s part of the spirit of federalism. But the other part of federalism, cooperation, seems to be missing as of late.
The duty to defend the rule of law and enforce federalism is what brings together many state attorneys general, and it’s also what brought together four of them for an event at the Heritage Foundation in Washington, DC last week–The Honorable Scott Pruitt of Oklahoma, The Honorable Derek Schmidt of Kansas, The Honorable Luther Strange of Alabama and The Honorable Alan Wilson of South Carolina. Fred Barnes of the Weekly Standard moderated the panel in front of an enlarged copy of the magazine’s July 22 cover featuring “The Last Redoubt,” the editor’s article about state attorneys general who have been opposing the Obama administration in the courts.
Scott Pruitt of Oklahoma noted that no matter who is in the White House, states still need to assert the rule of law and make sure that federalism is respected. It’s unfortunate that the case is, all too often, a matter of partisanship. Considering the venue, it’s no surprise that all of the attorneys general present were Republicans, but when it comes to litigating for federalism, it was an accurate cross-section.
Not every case splits down partisan lines. In the case of regulations coming from the Environmental Protection Agency (EPA), there is a lot of unity among the states. Kansas Attorney General Derek Schmidt detailed the problems with the EPA shifting some of its standards from a “narrative,” which encouraged conversation and cooperation between the states and the EPA, to a numeric calculation, in which hard numbers are used to determine pollution levels. “Federalism is a two-way relationship, and states are a full partner,” he said.
But it seems that more and more, the federal government doesn’t want input from states. The attorneys general recalled the Supreme Court case on the Affordable Care Act and the state cooperation on that front. Although the individual mandate was upheld, Medicaid expansion was seen as too coercive for states. Put another way–the Court was keeping the national government in check and making sure that it could not overpower sovereign states. “Attorneys general are the first and last line of defense,” Pruit said.
“We don’t make policy–we enforce the rule of law,” said Alabama Attorney General Luther Strange. That sometimes includes supporting state residents in their pursuits to enforce the law. In Strange’s case, that includes the Eternal Word Television Network (EWTN) and their lawsuit opposing the ACA’s employer contraception mandate.
All four attorneys general lamented the fact that U.S. Attorney General Eric holder and his Justice Department have not been keen on cooperation between the states and the national government. In fact, the DOJ has been outwardly hostile, such as the way it has been pursuing legal action against Louisiana for its school choice program.
Alan Wilson of South Carolina ended the session by discussing his theory on the federal government, which he refers to as “the blob.” Much like the 1958 film, the federal government “just rolls, consumes, devours” as it keeps entangling states and individual citizens that stand in its path.
That’s not the way federalism is supposed to work, but that hasn’t stopped “the blob” from rolling. Where legislation at the national level fails, state attorneys general and doing what they can to defend their states. Or as Attorney General Wilson put it: “We’re the Steve McQueens.”