Trump’s Intervention in Portland Shows that the Republican Party Has Lost Its Way on States’ Rights

There was a time, not long ago, when I was a lawyer for the Tea Party. I was part of a legal team representing 42 Tea Party organizations stretching from coast-to-coast. I was proud of the cause and my clients.

The cause was just. We filed suit challenging the Obama-era IRS’s systematic targeting of Tea Party organizations for extraordinary scrutiny, designed in part to improperly identify their sources of funding and monitor their political activities. Many of my clients were fascinating. They carried pocket Constitutions, the were freshly conversant in books like Friedrich Hayek’s The Road to Serfdom (which decries central planning), and they were united in the conviction that the federal government was too big, power was too concentrated in Washington, and that a free people should govern themselves – with authority pushed down to the lowest level, to states, cities, and towns.

I agreed. I still agree. The United States is a vast, pluralist republic. It’s extraordinarily diverse by every meaningful measure – including by race, religion, ideology, ethnicity, and geography. That means that different communities will have different values. They’ll have different economies. They’ll have different approaches to governance. One size does not fit all.

At the time, I thought I was a part of a movement that was pushing the United States closer to a solution for our increasing polarization. By increasing local autonomy, I thought, ultimately we could de-escalate the stakes of national elections and increase each individual’s degree of political control over the policies (and leaders) who most impact their lives.

But that movement is vanishing. The dream itself is barely alive. And it’s dying at the hands of the very people who once proclaimed it so boldly. We see its death throes right in front of our eyes – when federal officers serving a Republican administration intervene in cities like Portland over the objections of governors and mayors, when a Republican governor bans cities and towns from taking even the simplest, common sense step – mandating masking – to preserve public health, and when a Republican president declares that “when somebody is the president of the United States, the authority is total and that’s the way it’s got to be.”

But of course the movement was vanishing well before the present crises. The fiscal restraint of the Tea Party vanished in in 2018 and 2019 in the face of the largest deficits ever in times of peace and prosperity. A Republican senator introduced a bill that would put a federal commission in control of political speech on large social media platforms. The most popular right-wing personality on cable television, Tucker Carlson, endorsed parts of Elizabeth Warren’s economic plan. Commitments to federalism and local control melted away in the face of state and local immigration “sanctuary” policies.

The example of immigration is worth dwelling on. Few Americans remember, but there was a time when conservatives heralded a federalist approach to state immigration policy. In President Obama’s first term, Arizona passed a law – S.B. 1070 – that, among other things, made it a state misdemeanor to violate certain aspects of federal immigration law and permitted state officials to arrest individuals suspected of committing federal immigration violations.

The Obama administration sued, claiming that Arizona’s individual attempts to enhance immigration enforcement were pre-empted by the federal government’s comprehensive immigration authority. In response, Arizona and the conservative movement mounted a comprehensive defense of federalism.

Federal immigration law was untouched, they argued. Arizona was merely enhancing its ability to protect itself against an influx of illegal immigrants. The state’s unique circumstances merited a tougher approach.

Arizona lost the case. The Supreme Court – over Justice Antonin Scalia’s spirited dissent – held that federal authority over immigration was supreme. There was little room for federalism in immigration enforcement, even when different states face dramatically different challenges.

Fast-forward to the next Republican administration. The Trump Department of Justice immediately went on the offensive against California’s own federalist attempt to enact so-called “sanctuary state” laws. California took the opposite approach to Arizona. It wanted to be more welcoming to illegal immigrants, so it passed laws limiting the degree to which state officials could cooperate with federal immigration enforcement authorities.

Moreover, if you think that the Trump administration’s legal offensive against California was somehow required by the Obama-era precedents – that it was merely doing what it had to do – think again. The Trump administration lost. The Ninth Circuit ruled against it, and last month the conservative-dominated Supreme Court denied review.

So what’s going on? Was the Tea Party nothing but a ruse from the beginning. Did the Tea Party ever really believe the political values and principles it so loudly proclaimed?

I reject the idea that the Tea Party’s commitment to limited government, local control, and fiscal restraint was a lie or a con or a ruse. I know too many of the people and spent too much time with them to believe that their arguments were anything but sincere at the time. It’s more accurate to say that their beliefs were untested. During the Obama administration, they were easy to hold, and they in many ways meshed perfectly with partisan Republican interests.

When a Democrat held the levers of national power, and many of the smartest people in American politics were heralding a so-called “coalition of the ascendant” – the coalition of young voters, minorities, and women that elected Obama twice – then federalism in many ways represents the last line of defense for conservative governance. “Hands off our states” is a defensive tactic.

You see the same defensive tactic from progressive states today. California is a prime example. It’s not only forged its own path with sanctuary state laws, its attorney general has sued the Trump administration at least 50 times, and it consistently passes environmental laws in defiance of federal standards.

Yet there are not many progressives who are advancing federalism as a national political principle. The Joe Biden-Bernie Sanders unity task force recommendations do not reflect federalist priorities. They consistently call for a more energetic and larger federal government. Instead, the better description is that progressives are using federalism as a defensive tactic to stymy an administration they oppose.

The Tea Party (and much of the Republican Party), by contrast, proclaimed federalism, fiscal restraint, and limited government as principles, but when push came to shove – and dedication to those principles would have imposed a partisan cost – they were revealed as tactics.

Fiscal restraint requires sacrifice – especially in entitlement spending – and hard choices with the defense budget. Defending federalism actually requires permitting progressive enclaves to govern themselves, and that’s often intolerable to a highly-polarized public that sees any progressive (or conservative) victory anywhere as a threat to their own partisan project.

The best test of whether a person wields any constitutional doctrine as a weapon versus advances it as a principle is relatively easy to apply – will you defend the doctrine when even your political opponents attempt to use it? Or is it functionally “for me, but not for thee.”

Lost in this endless partisan back-and-forth, however, is the underlying merit of the original Tea Party argument. Is the federal government growing too large and too centralized to effectively govern a population that is increasingly diverse and increasingly divided? Shouldn’t we de-escalate national politics (where every presidential election is “the most important election of our lifetimes”) by pushing as many key decisions as we can to local decision-makers, those people who are directly accountable to their communities?

In other words, if the mayor of Atlanta wants to respond to a pandemic with a masking order, shouldn’t that rest within her authority? And if her voters don’t like it, shouldn’t they hold her accountable?

Not only does this argument have merit, I think embracing it is essential to navigating America through and past its present polarization. Increased federal power and increased federal centralization are in many ways incompatible with increased American diversity and increased American polarization. Or, to put it bluntly, so long as each state and municipality protects the core constitutional rights of their citizens, let California be California, and let Tennessee be Tennessee.

In fact, the ability of different communities of people to build their own distinct homes was a core aspiration of the Founders. You see it Federalist No. 10, James Madison’s ode to pluralism. And you see it consistently in the words of George Washington. Almost fifty times in his writings, he quoted the Hebrew prophet Micah, “Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid.”

There used to a movement that – for all of its flaws and foibles – would have heard those words and cheered in enthusiastic agreement. It no longer exists. It’s lost. It has succumbed to the lure of power and has wholeheartedly embraced Donald Trump. Who is left to pick up the torch?