One of the most fascinating aspects of American legal and political history is the interplay between state and federal power, and our perception of who’s protecting whom from what. (For a short and over-simplified summary of the backs and forths of this issue, I’ve listed some highlights at the end of this piece.)
Today, in the United States Court of Appeals for the Ninth Circuit, we are watching one of the more interesting episodes of this federalism intersection play out before our eyes. In a case captioned State of Washington et al. v. Trump et al., three states (Washington, Minnesota, and Hawaii) are suing Donald Trump and his relevant Cabinet members for, the suit alleges, violations of federal law and the U.S. Constitution.
As you undoubtedly know, unless you’ve been somewhere very remote for the last ten days, the suit is in response to the President’s Executive Order banning immigration into the United States from seven predominantly Muslim countries, and halting for at least 120 days all immigration of refugees from war-torn Syria, including those who have been fully vetted for entry.
As of the time of this writing, the temporary restraining order issued by Senior District Judge James L. Robart remains in place, with the U.S. government unsuccessfully asking the Court of Appeals above him to undo the order. Robart’s Temporary Restraining Order contained language that should be part of civics lessons everywhere:
“The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. … The court concludes that the circumstances brought before it today are such that it must intervene to fulfill the constitutional role in our tripart government.”
The Department of Justice, speaking for the President, has filed an emergency motion with the Ninth Circuit Court of Appeals, which refused to overturn Robart’s order but asked for briefing for an additional hearing. That’s where we are right now.
And the briefs are flying in. They make for great reading, particularly the “friend of the court” or “amicus” briefs filed by non-parties asking to be heard. The ACLU has filed a brief. Some 200 leading technology companies have filed a brief, as have the Southern Poverty Law Center, the Korematsu Center for Law and Equality, and a group of leading law professors.
The slap-dash way the Executive Order was put together would lead one to believe that the President will not fare well here. And if the Supreme Court weighs in, we could see a 4-4 split but I doubt it. It’s hard to see Justices Roberts or Kennedy blessing an Executive Order that overturns so many decades of settled law and that allows the President so much arbitrary discretion and so much power beyond what Congress has provided for in immigration laws.
In some ways, the more interesting issue is the role of the states in holding the feds accountable to the Constitution. The plaintiffs here are not aggrieved immigrants; they are the state governments themselves, supported by major economic interests, saying that there are some things even a President cannot do.
We wouldn’t have had any civil rights successes in the 1950’s and ’60’s without the feds (reluctantly) coming to act as the protectors of rights. Today, the shoe is on the other foot: the states are rising up and holding the feds accountable to what’s written in the Constitution, saying in effect “you can’t treat our people this way.”
It’s messy, and it’s complicated. But we are a very large and diverse country. And the task of self-government on this scale is bound to be messy and complicated. Those seeking the “blessings of liberty” have to grab allies where they find them. Yesterday the feds; today the states. The hope is that the interplay between the two makes both more responsive to the people over time.
An appendix of sorts:
Some of the backs and forths of federalism:
- Our Revolution was based on an aversion to centralized power in the form of the Crown, and an inherent suspicion of any all-powerful central government.
- Only a few years later, after the failure of the Articles of Confederation, we opted for a centralized, republican form of government, with the interplay between the states and the feds a matter to be worked out over time, but with clarity that federal law would be supreme.
- We included in the Constitution a “Bill of Rights” that would protect individual citizens against any over-reaching by the federal government. (It didn’t apply initially to state governments.)
- The defense of slavery caused the southern states to attempt to “opt out” of the constitutional system, as separate sovereign entities. The question of whether they had that right was settled only by calvalry and cannons.
- In Reconstruction, the feds became (just temporarily as it turned out), the guarantors of individual rights against malevolent state actors, i.e., now the states were the ones from whom the people needed protection.
- So too in the Civil Rights movement, it was to the federal courts and the President and Congress that the movement’s leaders appealed, as the segregated Southern states insisted on maintaining the Jim Crow system.
- Today, we have a situation where it is the states who are joining the charge against an over-reaching federal executive, arguing in court that the President does not have unbridled power to do whatever he wants in immigration policy.
Even We Here 