States’ rights make a comeback as Republicans rush to defy Washington

 

States’ rights make a comeback as Republicans rush to defy Washington

 

Several red states are rejecting the authority of not just the federal government – but also the conservative supreme court

 

David Smith

David Smith in Washington

@smithinamerica

Sat 29 Jul 2023 11.00 BST

https://www.theguardian.com/us-news/2023/jul/29/states-republicans-defy-washington-supreme-court

 

The message was blunt: “Texas will see you in court, Mr President.”

 

The words of defiance came from Greg Abbott, the governor of Texas, making clear that he would not comply with a justice department request to remove floating barriers in the Rio Grande. And Abbott is not the only Republican governor in open revolt against Washington.

 

In May Ron DeSantis of Florida signed a bill allowing the death penalty in child rape convictions despite the supreme court banning capital punishment in such cases. Earlier this month, Kay Ivey of Alabama signed into law a redistricting map that ignored a supreme court ruling ordering the state to draw two Black-majority congressional districts.

 

The disobedience is sure to score points with the Republican base. It reflects a trend that has seen state parties embrace extreme positions in the era of Donald Trump and Maga (Make America great again). And while there has always been tension between states and the federal government, it now comes with the accelerant of political partisanship and blue (Democratic) v red (Republican) state polarisation.

 

“This is an onslaught against the federal government’s reach, power, effectiveness,” said Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota. “We’re seeing it across the board in immigration, healthcare, education – it is defiance. If you think about America breaking into red and blue states, this is like the culmination. It’s literally the red states separating from the federal government and the rule of national law.”

 

With Democrat Joe Biden in the White House, Republican governors are seeking to assert their independence, with red states such as Florida and Texas styling themselves as bulwarks of resistance even if that means rattling America’s increasingly fragile democracy.

 

In Texas, Abbott has been testing the legal limits of states’ ability to act on immigration for more than two years, erecting razor-wire fencing, arresting migrants on trespassing charges and sending busloads of asylum seekers to Democratic-led cities in other states. The governor recently introduced a roughly 1,000ft line of bright orange, wrecking ball-sized buoys on the Rio Grande to stop migrants from entering the US.

 

This week the justice department sued Abbott over the floating barrier, claiming that Texas unlawfully installed it without permission between the border cities of Eagle Pass and Piedras Negras, Mexico. The White House has also raised humanitarian and environmental concerns. Abbott sent Biden a letter that defended Texas’s right to install the barrier and tweeted: “Texas has the sovereign authority to defend our border, under the US Constitution and the Texas Constitution.”

 

The lawsuit is not the first time the Biden administration has sued Texas over its actions on the border. In 2021 the attorney general, Merrick Garland, accused the state of usurping and even interfering with the federal government’s responsibility to enforce immigration laws after Abbott empowered state troopers to stop vehicles carrying migrants on the basis that they could increase the spread of Covid-19.

 

But it is not just a Democratic president feeling the backlash. Even the supreme court, now heavily tilted to the right by Trump’s appointment, is facing defiance from states over rulings that they do not like.

 

The court made a surprise decision that upheld a lower court ruling that a map in Alabama – with one Black-majority district out of seven in a state that is 27% Black – probably violated the Voting Rights Act by diluting the voting power of Black residents. But six weeks later the Alabama state legislature approved a new map that failed to create a second majority-Black congressional district.

 

A group of voters who won the supreme court decision say that they will challenge the new plan. A three-judge panel has set a 14 August hearing and could eventually order a special master to draw new lines for the state. The outcome is likely to have consequences across the country as the case again weighs the requirements of the Voting Rights Act in redistricting.

 

Chris England, a state representative and Black Democrat, noted that change in Alabama has often happened only through federal court order. “Alabama does what Alabama does,” he said in a speech. “Ultimately, what we are hoping for, I guess, at some point, is that the federal court does what it always does to Alabama: forces us to do the right thing. Courts always have to come in and save us from ourselves.”

 

In Florida, meanwhile, DeSantis declared that the supreme court had been “wrong” when its 2008 ruling found it unconstitutional to use capital punishment in child sexual battery cases. He signed a law – authorising the state to pursue the death penalty when an adult is convicted of sexually battering a child under 12 – intended to get the court, now under conservative control, to reconsider that decision.

 

The posturing comes within the context of years of anti-Washington rhetoric from politicians led by Trump, who has long railed against the “deep state” and vowed to “drain the swamp”. Other Republicans have used Washington as a punchbag, a symbol of political elites out of touch with ordinary people.

 

Jacobs added: “This has been a battle that’s been going on for hundreds of years. At this moment you’ve got this toxic mixing of state resentment of the national government when in the hands of the other party along with this really virulent populism. What’s unique about this period is pushing back against and defying Washington is now good politics. Ron DeSantis’s main campaign theme is: I said no to Washington.”

 

Trump has also spent years sowing distrust in institutions and fanning online conspiracy theories. Loss of faith in elections led a violent crowd to storm the US Capitol on 6 January 2021. The supreme court has compounded the problem with a series of extremist rulings and ethics scandals. A recent Quinnipiac poll found that the court has a 30% approval rating among registered voters – the lowest since Quinnipiac first asked the question in 2004.

 

Edward Fallone, an associate professor at Marquette University Law School in Milwaukee, Wisconsin, said: “The integrity of the court has definitely been eroded. Both liberals and conservatives have less faith and feel less obligated to follow its rulings. It’s entirely a situation of the supreme court’s own making.

 

“The justices have been acting politically, the shadow docket [where the court rules on procedural matters], the refusal to be transparent about ethics and gifts, and some of the comments that Justice [Samuel] Alito for example has made in public forums that sound more like a politician’s comments.

 

“When the court acts politically then people see it as a political institution. It just follows as night follows day. It’s going to be difficult to have state governors and legislatures follow supreme court rulings when they have less faith in the integrity of the body and the general public has less faith.”

 

Yet until recently, talk of rebellion against the government had seemed to belong only in the history books. The supremacy clause in the US constitution says the federal government, when acting in pursuance of the constitution, trumps states’ rights.

 

In the mid-19th century, southern states believed that they had the right to nullify federal laws or even secede from the Union if their interests, including the exploitation of enslaved labour, were threatened. With the north increasingly turning against slavery, 11 southern states seceded in 1860-61, forming the Confederate States of America. It took four years of civil war to reunite the nation and abolish slavery.

 

A century later, the landmark supreme court case of Brown v Board of Education declared racial segregation in public schools unconstitutional, but many southern states resisted integration and refused to comply with the decision. President Dwight Eisenhower sent federal troops to enforce the desegregation of Little Rock Central high school in Little Rock, Arkansas, in a case known as the “Little Rock Nine”.

 

In 1963, the Alabama governor, George Wallace, declared “Segregation now, segregation tomorrow, segregation forever” and stood in a doorway at the University of Alabama to express resistance to the court-ordered integration. In response, President John F Kennedy federalised national guard troops and deployed them to the university, forcing Wallace to yield.

 

Daniel Ziblatt, co-author of How Democracies Die, said: “Sometimes we have the idea that the local level is where grassroots democracy thrives but actually, in the history of American democracy, federal power has been used for ill but it’s also been used as a democratising force. We haven’t seen this confrontation reach this same level since the 1950s, 1960s.”

 

Ziblatt, a political scientist at Harvard University, added: “The major breakthroughs in American democracy have come when the federal government has either passed national legislation – think of the Civil Rights Act or the Voting Rights Act – or had to intervene.

 

“Major moments of backsliding have happened when the federal government turns a blind eye to what’s happening in the states. The 1890s are replete with examples of the supreme court essentially turning a blind eye to abuses at the state level. So in a way the confrontation between the states and the federal government is a confrontation over democracy.”