Academic journal article Texas Review of Law & Politics

Federalism as a Check on Executive Authority: State Public Litigation, Executive Authority, and Political Polarization

Academic journal article Texas Review of Law & Politics

Federalism as a Check on Executive Authority: State Public Litigation, Executive Authority, and Political Polarization

Article excerpt

INTRODUCTION

State governments have been leading players in the most important political conflicts under both the Trump and Obama Administrations. Occasionally this has occurred through states enacting controversial political stances within their own jurisdictions, as when Arizona adopted its hard-line stance on immigration,1 and California decided to make the entire state a "sanctuary" jurisdiction for undocumented aliens.2 But mostly the states have articulated their dissents from national policy by filing lawsuits.3 Back when he was Texas Attorney General, Governor Greg Abbott famously described his job as follows: "I go into the office, I sue the federal government and I go home."4 But he is hardly the only litigious state politician to make a name for himself by suing to challenge national measures. Massachusetts Attorney General Maura Healey has filed at least fifteen lawsuits against the Trump Administration in 2017 alone.5 These state-led lawsuits-which include the Obamacare6 and Texas immigration litigation7 under Obama as well as the travel ban suits,8 more immigration litigation,9 fights over sanctuary cities,10 and foreign emoluments11 under Trump-are changing the way we think of the states' role in national politics.

We ordinarily think of disputes between states and the national government as necessarily raising questions of federalism, not separation of powers. But with the exception of the Obamacare and sanctuary cities cases, much state public law litigation in the past two administrations has focused either on separation of powers or individual rights as checks on unilateral actions by the executive branch. In Texas's suit challenging President Obama's Deferred Action for Parents of Americans (DAPA) immigration program, the primary claims were that the President had exceeded his statutory authority and failed to comply with the procedural requirements of the Administrative Procedure Act (APA).12 The current suit by "blue" states challenging President Trump's executive repeal of DAPA's cousin, the Deferred Action for Childhood Arrivals (DACA) program, also relies on the APA, but it adds various rights claims that Trump's actions violated the equal protection component of the Fifth Amendment because they were motivated by prejudice against Latinos and Hispanics.13 Neither these immigration suits nor a whole host of other suits brought against the Trump Administration over environmental regulation under the Clean Air Act,14 education policy,15 or national healthcare16 allege that these subjects are off-limits from federal regulation; rather, the claim is simply that particular executive branch actions are inconsistent with federal statutory or constitutional requirements. State public law litigation has become a significant check not simply on national power, but on executive power in particular.

Not surprisingly, all this state litigation activity has increased the salience of a longstanding debate about the desirability of state public law litigation generally.17 So rather than focusing on state litigation's impact on executive authority, I want to address more broadly the role of that litigation in our federal system and, in particular, whether it worsens or eases the polarization that afflicts our politics. Given all the suits by red states against Obama and by blue states against Trump, one might assume that state litigation reflects and probably aggravates polarization. But to the extent that state challenges leave states free to go their own way on divisive issues, state litigation can protect our federal system's ability to be a safety valve when national politics overheats. I hope to offer some generalizations about when state litigation helps and when it hurts, but I might as well admit at the outset that generalizations are difficult in this area.

Polarization, Separation of Powers, and Federalism

"Polarization" can mean a lot of things. One could be forgiven for using it to convey the fact that everyone always seems mad at one another, but the political scientists have a more specific definition having to do with political parties becoming coherent ideologically. …

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