February, 2020
Washington – Barring some unforeseen stroke of good fortune, the months and years immediately ahead look grim around the globe. Breakups of nations are increasingly likely. The United Kingdom is under strain as never before, what with Scotland pressing for independence and Northern Ireland in an untenable situation after Brexit. Australia faces an economic breakup with its fossil fuel industries. The European Union will have difficulty holding together without a strong successor to German Chancellor Merkel. The continent of Antarctica is literally breaking up as record temperatures cause its ice shelves to collapse into the sea.
In the United States, the prospective re-election of Donald Trump as president, a divisive destroyer of democratic norms, will cause many states firmly under opposition party control to re-examine their roles in our country's federal system. The states of the Northeast and West Coast in particular may look at asserting what remaining sovereignty they have left to fend off a national government led by an increasingly autocratic president unconstrained by traditional checks and balances. Areas of likely conflict: environmental protection and climate change, judicial process, consumer protection, immigration, and health and education.
States have sovereignty, sometimes called police powers, to establish and enforce laws protecting the health, welfare, and safety of their populations. These powers are confirmed in the U.S. Constitution's Tenth Amendment. States also have their own constitutions, many of which guarantee rights similar to those in the U.S. Constitution. States have their own statutes, courts, and jurisprudence.
State sovereignty is limited by the U.S. Constitution's supremacy clause, but that clause is itself limited to situations in which there is conflict between national and state governments. There is much waxing and waning of states' sovereign powers over more than two centuries. In recent decades, state sovereignty has been strengthening under federal judges who, looking backward rather than forward, associate it with political conservatism and not with a growing need for a check and balance against an autocratic chief executive.
How would states exercise their sovereignty as a check on the president? States do not have powers of "nullification" of national laws or executive orders, but neither are they bound to use their tax support or law enforcement personnel to support them. This describes the case in so-called sanctuary cities where state and local law enforcement entities do not carry out the directions of the federal Immigration and Customs Enforcement agency, in part out of concern that they violate the rights of persons under state constitutions.
The principle can be applied to other situations where health and safety of state populations are at risk from federal agency directives. As the president relaxes or eliminates controls on dangerous pesticides, for example, states can step in with their own statutory and executive measures, backed by their own law enforcement.
The nation's student loan crisis provides an example wherein state interests in providing consumer protections override the attempts of the U.S. Department of Education to "preempt" the student loan field. The department has argued in federal court, unsuccessfully, that students loans are under sole federal jurisdiction even as they are egregiously mismanaged. The federal supremacy clause is not applicable to this or other areas where the federal government's powers under the U.S. Constitution must yield to state sovereignty.
Some states are looking now at which areas they believe their populations are most threatened by a Trump re-election, and what actions they can take to protect themselves. One answer is interstate compacts, authorized by the U.S. Constitution. An example might be uniform state emission standards for fossil fuels. Although some interstate compacts are subject to approval by Congress and to a veto by the president, they are not if they do not encroach or interfere with the "just supremacy" of the United States.
Therein lies the potential for conflict, even armed conflict. Suppose several states join together in an interstate compact to abide by the Paris agreement on emissions and a governor shuts down a methane-emitting, fossil fuel facility in his or her state, only to see the president try to nationalize the State Guard or use local law enforcement in order to keep the facility open. What would the governor do, allow it or oppose it on grounds of the state's own police powers?
Or suppose the president attempted to nationalize a State Guard to operate detention camps of asylum seekers, whose confinement was a violation of the state's own constitutional protections, which in turn were modeled after the U.S. Constitution's Bill of Rights. This would test the limits of "just supremacy" of the federal government over the states, inasmuch as individuals' rights against the government were themselves developed by a federal jurisprudence that has recognized the importance of state sovereignty as a check and balance in our division-of-powers system of government.
It is a very real possibility that the United States could divide over such questions in the next few months and years. It is plausible in the 2020 elections that, as in 2016, President Trump would lose the popular vote but win the electoral vote and, as in 2018, Democrats would retain power in many large states. This could precipitate movement of populations among states if people begin to feel that the rights and benefits they enjoyed under the federal government are now best protected by the laws and enforcement powers of states that are comparatively more life-affirming than those (many in the heartland) characterized by vicious cycles of deaths of despair.
In recent days, the president has given a glimpse of what his second term may portend: a federal justice system directed by whim and grudge, a federal bureaucracy cowed by fear of reprisals, and an approach to climate and environmental challenges that is nothing if not an existential danger.
Voters in 2020 should think about these matters and ask candidates at all levels of government for their positions on them. So should the news media, which are so attuned to a 24-hour news cycle that they cannot conceive of a possible fracturing of the country only months ahead.
