Revive Real Federalism: Red State Challenges and Strategies

The American experiment was an experiment in federalism. While Article I, Section 10, denies the states powers that are reserved to Congress, the Tenth Amendment explicitly declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This was absolutely essential to keeping the fledgling nation together. Can it do so again? We need to understand its benefits properly and how to approach it in our current situation. Recent events in Texas help us get at all these issues. First, however, what are the benefits? Beyond the role of a federal structure in convincing colonies to band together at the Founding, Justice Louis Brandeis famously identified a robust federalism as a positive good in New State Ice Co. v. Liebmann (1932) when he declared that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The states, it was thought, would act like scientists and learn from their own and each others’ experiments in the long run. The English writer G. K. Chesterton admired this quality, declaring of one of his fictional American characters that he “knew whole States which are vast and yet secret and fanciful; each is as big as a nation yet as private as a lost village, and as unexpected as an apple-pie bed. States where no man may have a cigarette, States where any man may have ten wives, very strict prohibition States, very lax divorce States….” Like Brandeis, Chesterton thought this a glorious aspect of American life, even if the smoking, drinking Catholic writer opposed all the examples he attributes to the American states. He, too, thought that Americans would learn from each other. But as at the beginning of our country, keeping and reinvigorating the power of the states is not simply a nice thing that allows us to make a good nation better. It is necessary to keep our country together. Today, we can say it this way: if blue states wish to take on novel and self-destructive experiments (and they do), red states need to be able to take on experiments in common sense that seem novel only to a deeply mad world. Americans have been voting with their feet, fleeing in large numbers from the increasingly foul-smelling laboratories full of broken glass whose door signs read names such as California, Illinois, Minnesota, and New York. As long as there is a valve to release the dangerous pressure in those left-wing labs, there is the prospect of a reverse pressure that can be put to those states to back away from their worst policies. Given that blue states seem hell-bent on proceeding with their own Frankenstein projects based on radical environmentalism, critical theory, and magical left-wing economic theories, it is absolutely necessary just to allow a place where the 74 million people who voted for Donald Trump to call home. But while blue states have been allowed and even encouraged to take on their own leftist vision, with only the prospect of future reversals by state and federal courts, red states are under pressure both from the federal government and from the local Democratic power structures that make cities in red states as dysfunctional as anything in New York, Illinois, or California. Texas’s recent tangles with the irresponsible and lawless Biden administration over immigration control illustrate the former, while the blocking of the so-called Death Star Bill in the Lone Star State demonstrates the latter. The Biden Administration has attempted to stop the use of floating buoys in the Rio Grande that have effectively deterred illegal immigrants from crossing. This week the Administration made the suggestion that they will further attempt to stop red states from sending illegal immigrants to the supposed “sanctuary cities” that have boasted of their openness to them. The suggestion is effectively to redraw the borders of the United States by requiring illegal immigrants who have gained admittance to stay in Texas and Arizona. In other words, border states can’t make the blue states live up to their own boasts. While it is not clear what will happen with the attempt to make border states bear all the burdens of our federal government’s fecklessness with a new “border,” a federal judge this week ordered the buoys to be moved by September 15. Though Texas will appeal this decision, the fact that the state is dependent on the judiciary shows how bad things are. Congressional Republicans have not been willing to act seriously on this issue (or many others). Texas and other red states have to act on their own and in concert with others. The good news is that there is at least some support for fighting the federal government. Not enough support, apparently. For Texas Attorney General Ken Paxton, whose record fighting the Biden Administration in court succeeds at the rate of ninety percent, is being impeached for what look to be purely political concerns. To sacrifice one of the most successful fighters against the tyranny of the Biden regime is insane. But what is worse is that there seems no will to fight against the blue cities that prevent red states from being true laboratories. This summer Texas passed HB 2127, titled the Texas Regulatory Consistency Act, but labeled by the left and their media adjuncts the Death Star Bill. The bill was to establish definitively that Texas counties and cities do not have power to establish laws and regulations without state authorization in areas such as business, labor, finance, agriculture, occupations, and property that are governed by Texas codes. In an article about how a Travis County judge last week struck down the bill as violating the Texas Constitution (the decision will be appealed), The Hill characterized this bill as “restricting legal power of progressive cities.” This is surely right. The aim is indeed to stop Texas cities from continuing to turn their part of the laboratory into the Portland political-chemical spill. Yet as Texas Monthly pointed out, the lawsuit made by three blue cities challenging the bill was aided by friend-of-the-court briefs from Republican cities Arlington, Denton, Plano, and Waco. While it’s understandable that local politicians are jealous of their power, it’s a mistake by Republicans to fight against greater control at the level of the state. Greg Abbott, who signed the bill, has been correct to say that the danger to Texas is turning it into California. Though many on the right and the left might try to justify more local control on the basis of “democracy” or even “federalism” itself, the American ideal, with its roots in the U. S. Constitution that is all about states, is expressed by Dillon’s Rule. Named after the nineteenth-century Ohio Judge Forrest Dillon, it holds that counties and cities are “creatures” and “the mere tenants at will of their legislature.” Our republican and federal system gives the authority to states and not to counties and cities. To allow cities and counties to go their own way is to negate the way in which our democratic federal and republican system is supposed to work. It is to stop the way our laboratories work. And part of the reason for that is because blue cities are simply following what our left-dominated national government wants. At present, leaving cities to go their own way means not more diversity but more outposts of the dreary, dangerous, depressing, and monochrome agenda of our “progressive” regime. Some Republicans might be tempted to fight against bills like HB 2127 as Republicans in Texas did out of a misplaced application of H. L. Mencken’s understanding of democracy as the idea that the people know what they want—and deserve to get it good and hard. But this is a political as well as a legal and constitutional mistake. Red state executives and legislators need to show that they care about those who find themselves in failed and failing cities that may as well be in New York or New Jersey. While these politicians might well lose a few votes in Plano or Waco (though it is unclear if any Republicans other than government officials would defect), they more likely will gain votes from voters who see their neighborhoods and their lives improve through sane economics, better policing, and protection from the chaos of large-scale immigration and from overweening administrative agencies. Federalism can definitely be revived in America, but it will require Republican leaders to wake up to their own need to focus on ways of keeping the Biden Administration and the administrative state at bay, subdue their own blue cities, and (a final point) figure out how to tame their own administrative state apparatus and keep their legislators in charge. Administrative bureaucracies in states are just as left-wing and dangerous as those in Washington. If they do this, Republicans will not only improve their own prospects, but they will make their people’s lives better and maybe keep our no-longer fledgling nation together. David P. Deavel teaches at the University of St. Thomas in Houston, Texas, and is a Senior Contributor at The Imaginative Conservative. Follow him on X (formerly Twitter) @dpdeavel.