AIF Blog

States vs. Federal Government: Who Wins?

Nov 15, 2017
CATEGORY: Society, U.S.A.
Josh Shapiro, Heather Gerken, and Elliot Gerson speak at the Aspen Ideas Festival in June.
What happens when the states and federal government don’t agree? Conflict between these institutions stretches back to disputes between Alexander Hamilton, a champion of federal authority, and Thomas Jefferson and James Madison, who supported states’ rights. In a talk at the Aspen Ideas Festival, Heather Gerken, dean of the Yale Law School, and Josh Shapiro, Pennsylvania Attorney General, discussed the power of states' rights in the modern era, and why they’re important in holding the federal government accountable.
States are “ground zero” for civil rights.
Immigration policy, legalizing marijuana, same-sex marriage, and now, sanctuary cities—all of these are examples of modern-day clashes between states and the federal government. In the case of same-sex marriage, Heather Gerken says federalism, the distribution of power between the states and federal government, is good for dissent. “Right now, ground zero for the fight for civil rights is in the states,” says Gerken. She says supporters of same-sex marriage relied on state and local power to leverage their movement. When San Francisco and Massachusetts began issuing marriage licenses to same-sex couples, it fundamentally changed the debate. “That was an incredible moment because for years people had been talking, rallying, and lobbying about the issue, but that was the day that everything changed.” The same-sex marriage success is an example, Gerken says, of using power at the state and local levels to build a national movement. 

The sanctuary city fight.
Philadelphia is one of the largest cities in America that has declared itself a sanctuary city. In July, US Attorney General Jeff Sessions visited Philadelphia, delivering a speech where he railed against cities deciding to protect undocumented immigrants. “A lot of what the Trump administration is trying to,” says Pennsylvania’s Josh Shapiro, “goes beyond the bounds of a strict, or conservative, reading of the Constitution.” Shapiro thinks progressives could use decisions from conservative Supreme Court Justices John Roberts and the late Antonin Scalia. “At the end of the day, the tool that progressives are going to use to push back on Trump’s sanctuary cities policy, or some of his other policies that we have yet to see, are going to be these decisions written famously by conservatives.”

UPDATE: Federal courts have largely blocked an executive order President Trump issued in January that threatens to eliminate federal grant money to so-called sanctuary cities. The latest action was in September when a federal judge in Chicago sided with the argument that penalizing cities for protecting undocumented immigrants is unlawful and unconstitutional.
States and localities are powerful today. 
Yale Law Dean Heather Gerken says the federal government heavily depends on states and cities to put federal policy into place. States and localities have a much bigger and developed apparatus to carry out the implementation of laws. So when it comes to implementing federal guidelines like Trump’s sanctuary cities policy, Gerken says “The federal government does not have enough boots on the ground. It simply cannot do it if states and localities are not partnering with it.”
Watch the entire conversation.

Written by Marci Krivonen, Associate Editor/Producer, Aspen Ideas Festival