“After the 2016 election,” a recent video about the New York Senate primary begins, “New York State acted fast to pass these measures to resist Trump’s agenda: universal, single-payer healthcare; fully funded public schools; strong environmental safeguards; and sanctuary state legislation to protect all immigrants. Just kidding! That didn’t happen.” But, narrator Edie Falco continues, it could with the election of state legislators who would make “New York a real blue state, like California,” and might “inspir[e] other States of the Union to resist Trump too.”
Tip O’Neill famously insisted that “all politics is local,” but the aphorism has been flipped on its head in the three decades since he served as Speaker of the House. The New York video assumes all politics is national: it treats a state election as an opportunity to repudiate the sitting President; it argues that state legislation is the nation’s best hope for progressive policymaking; and it casts a group of Democratic states—from self-appointed leader California to unspecified “other States of the Union”—as the critical check on a Republican-controlled federal government. Similar arguments, in both red and blue, have sounded across the country in recent years. The same national issues dominate campaigns for state office. Voters in state races are driven by their national partisan identities. Ballots in subnational elections closely track those in national contests. As the 2018 midterms approach, gubernatorial races from Maine to Florida, state legislative races from New Hampshire to Nevada, even elections for city council and school board are being fought as chances to oppose or support Donald Trump.
Scholars and pundits have been quick to pounce. Building on his important earlier work, David Schleicher argues on this blog that “Federalism Is in a Bad State.” I share some of his concerns—although my list of democratic failings would be led by voter suppression rather than state laws governing parties—and I might take the critique further. “Things aren’t going that well” at the national level either, to adapt a different Schleicher title, and if second-order state elections are exacerbating national polarization, we should worry more about that effect.
But I’m less worried for federalism’s sake. For one thing, Schleicher may be asking too much of state elections. If his autonomous state politics would include the disparate domains he invokes (a merely partial list: healthcare, housing, infrastructure, pensions, education, labor, environment, licensing), voters would still depend on heuristics, and what “state legislatures actually [did]” in any particular area would still have “little effect on whether they [were] reelected.” That doesn’t mean pulling state issues apart from contentious and, on Schleicher’s telling, “extremely distinct” national issues couldn’t help. But Schleicher is comfortable with party-line voting at the national level, so the force of his argument turns on how separate state and federal policy really are.
Today, they are not that separate. Many of the substantive areas Schleicher cites, and more he does not cite, involve joint state-federal regulation. The state side of this policymaking has become increasingly important as polarization has sidelined Congress. At the federal level, major legislation now emerges only during brief periods of unified government, when both houses of Congress and the presidency are controlled by one party. The one significant law to have been enacted during the Trump years, the Tax Cuts and Jobs Act, received zero Democratic votes in the House and Senate. President Obama’s signature legislative achievement, the Patient Protection and Affordable Care Act, received zero Republican votes in the House and Senate.
Major legislation is, in any event, the exception rather than the rule. Far more often, during periods of unified and divided government alike, policy is set by the President and administrative agencies. Today, those on the political left tend to decry presidential power, while those on the political right tend to decry federal agency power insofar as it is not beholden to the President. But these critics all recognize that federal decisions come from the executive branch more than Congress. From Medicaid expansion to work requirements; the Clean Power Plan to its proposed repeal; protection for Dreamers to deportation, Congress has been sitting out major domestic policymaking. These and other executive decisions raise concerns not only about regulatory whiplash, but also about unchecked unilateralism, concerns that have been heightened by the Trump Administration’s corruption and cruelty.
The same polarized partisanship that hamstrings Congress, however, has also made the states critical to national policymaking. Not as a “minor league for national politics,” hoping for a shot at the majors someday (per Schleicher’s characterization of my prior work), but as a force setting national policy right now. Congress may have sat out recent decisions on Medicaid expansion, the Clean Power Plan, and the status of Dreamers, but the states have acted. From healthcare, the environment, and immigration to abortion, drugs, guns, and more, states advance national partisan commitments.
Our federal government “is in a bad state,” and federalism may be its best hope.
From a national perspective, today’s partisan federalism accomplishes three main things. First, partisanship spurs the state-federal contestation that has long been assumed by doctrine and theory: blue states fight the federal government when it is in Republican hands, and red states fight the federal government when it is in Democratic hands. In Madisonian terms, the partisan commitments of state and federal actors are the “opposite and rival interests” that animate checks and balances. Some of this opposition seeks to curtail federal action, but states also engage in their own affirmative policymaking. Resistance, to use the idiom of the day, may mean offering an alternative. Colorado legalized recreational marijuana notwithstanding the federal Controlled Substances Act. Arizona passed immigration-enforcement measures notwithstanding the federal Immigration and Nationality Act. California adopted net neutrality rules notwithstanding the federal Communications Act. Especially as polarization impedes new federal legislation, state laws and policies rejecting the status quo may be more important than state challenges to federal action.
Second, states shape the distribution of power across the federal government and provide a needed counterbalance to the President in an age of executive dominance. When our only separation of powers is the “separation of parties,” we may not have the former in any meaningful sense. Consider the woeful absence of congressional oversight of the Trump Administration. But states partially assume Congress’s role. Because some states are always controlled by the party that does not hold the White House, they can be counted on to contest federal executive action when Congress lacks partisan incentives to do so. Sometimes states make the connection explicit: much recent litigation has involved states purporting to defend congressional decisions from presidential overreach. Other times, state policymaking counters federal executive action. States may enact their own laws and regulations or engage in uncooperative federalism to push back from within federal programs. When states have challenged presidential immigration policies, for example, their greatest resource has not been lawsuits; it has been refusing to assist the President and Department of Homeland Security.
Third, because they advance national partisan positions and challenge federal executive decisions, states have become repositories of national identity. As the federal government has entered most domestic policy areas; as media and commercial markets have become national, even international, in scope; as travel has grown easier and interstate movement commonplace, commentators argue that state distinctiveness has been lost and, with it, a reason for individuals to care about the states. The second-order elections critique also suggests a void where state identity once was. But national partisanship itself provides important reason for individuals to care about the states.
Although we live in an “increasingly United States” in the sense that state elections have nationalized, “increasingly united” is almost certainly not the phrase that comes to mind to describe contemporary American politics. “Sharply divided” is more likely. Once consequence of our identity-based, mistrustful, polarized partisanship is that individuals’ national identification varies depending on which party is in control. Losing the presidency, especially, can entail a threat to feelings of belonging to and affinity with the United States. But because some states are always controlled by the party out of power in Washington, they become alternative sites of national identity. State politicians have readily embraced this possibility. Texas officials described the state as a preserve of the real United States during the Obama years. Immediately after Trump’s election, California’s legislative leaders proclaimed, “We will lead the resistance to any effort that would shred our social fabric or our Constitution. California was not a part of this nation when its history began, but we are clearly now the keeper of its future.” As these politicians appreciate, polarization inspires Democrats and Republicans to look to the states for meaningful political representation, especially when the other party holds the White House.
All of this suggests that the Edie Falco video has it right: voters should see choices in state elections as ways to express national partisan commitments and to affect national policy. Healthcare, immigration, education, and environmental protection are on the state ballot. And on November 6th, state legislative elections will matter more for the short-term prospects of national progressive policymaking than the congressional election.