It is very common for activists, particularly on the political Left, to demand a favorable outcome at the national level from Congress, the President, or the federal courts (especially the Supreme Court) for a particular constituent group, which is often presented as systematically oppressed.
And then, I think about two major constitutional concepts: separation of powers, and federalism.
For example, regarding DACA, activists are widely protested Trump’s rescinding it and stopping new applications. The president has said that legally this is the responsibility of Congress, not the White House. The president has challenged Congress to take a firm position and establish statutory rules for DACA beneficiaries. The president even says he will reconsider in six months if Congress can’t do its job.
Of course, this puts the lives of many beneficiaries into uncertainty and limbo now, for no fault of their own.
Likewise, in the area of federalism, activists demand that the federal government fix all the unfairness or disorder in health care markets. Projections about the supposed failure of the health care reform proposals by the GOP last spring largely depended on a belief that many “red states” would not use federal grants properly and would leave many more poor at sea. But, of course, the record of these states so far, refusing Medicaid expansion out of ideological reasoning, does not inspire confidence.
Gay activists have depended on courts at the federal level, not only for marriage equality (recently), but for turning off state sodomy laws (back in 2003), revealing history that is already being forgotten.
And the history of the civil rights movement back in the 1960s indeed turned on a rejection of “states’ rights”. And the War Between the States not only turned back slavery, but also on a state’s right to secede (although there has been recent talk in both Texas and California on this matter).
I get irritated at activist groups pounding for so much attention to their narrow focus on some issue (like the Confederate statues).
But I do understand that our system of federalism seems to be eroding. States may be good enough at defining ideas like real property and inheritance and with varying criminal code sentences (like even on the capital punishment); but in this Internet age, the ability of states to do locally what is best for their own people is getting less credible. I can remember back in the late 1970s that people who wanted jobs would move south and west, where the cost of living was lower but were social values were often much more conservative. That sort of “choice” doesn’t really exist now like it did. Yet, we would hardly want a unitary system like China’s.
Separation of powers, though, in an age of Trump-ism, seems more critical than ever. Yet sites like Vox keep saying we would be better off with a parliamentary system!
(Posted: Tuesday, September 12, 2017, at 11 PM EDT)