State Net Sign-on Page
State Net Product Page
December 17 -- The New Federalism
Sign-up today for your complimentary subscription to the State Net Capitol Journal to stay up-to-date on the latest news from America’s statehouses.
Managing Editor: Rich Ehisen
Editor: Korey Clark
Editorial Advisor: Lou Cannon
Contributing Editor: Mary Anne Peck
Graphic Design: Vanessa Perez Design
Ideas and suggestions are always welcome. Please let us know how we can improve your newsletter! We welcome your feedback.
HomeSpotlight Story | Bird’s Eye View | Budget & Taxes | Politics & Leadership | Governors | Hot Issues | Once Around the Statehouse Lightly
Last fall, California Gov. Jerry Brown (D) joked that if then-GOP presidential candidate Donald Trump won the election, the Golden State “would have to build a wall around California to defend ourselves from the rest of this country.” He was quick to emphasize that he was kidding, but with just days from Trump ascending to the presidency few in deep blue California are laughing. As the state with arguably the most to lose from the policies of a Trump administration, Brown and Democratic lawmakers are gearing up to resist the incoming president on numerous fronts.
Democratic lawmakers have already introduced a number of bills intended to counter two of Trump’s most controversial campaign vows: his stated intention to deport millions of unauthorized immigrants and to build a massive wall along the southern U.S. border. Those measures include: SB 54, authored by Senate President Kevin de León (D), which would bar state officials from cooperating with U.S. Immigration and Customs Enforcement on deportation cases and create so-called “safe zones” in public schools, hospitals and courthouses where federal immigration laws would not be enforceable; AB 3 (Bonta) which would create regional centers paid for by the state to train attorneys on immigration law; SB 6 (Hueso), which would create a state-funded program where court-appointed lawyers would represent people facing deportation; and AB 21 (Kalra), which would require federal immigration officials to notify public college and university administrators before they go on campus.
Immigration policy is not the only area of concern for lawmakers. Brown has made combatting climate change a focal point of his time in office, and he has said California will continue its ongoing efforts to reduce greenhouse gas emissions with or without federal cooperation. Just over a week after those bills were introduced in a brief one-day session on December 5, Brown told a gathering of global climate scientists in San Francisco that should Trump move to block the gathering of climate data by federal scientists – as some on his team have suggested could happen – California is prepared to take matters into its own hands.
“If Trump turns off the satellites, California will launch its own damn satellite,” he said. “We’re going to collect that data.”
Brown, however, hedged on that a bit during his annual budget release press conference last Tuesday. When asked by this publication if he still intends to launch a satellite if the Trump administration stops collecting climate data – and where the money to pay for it will come from if he does - he said “I don’t see any evidence yet the [president–elect] is going to stop collecting climate data.” He ascribed such talk to someone on Trump’s transition team and not the incoming president himself, but added he “would not rule out any initiative” to ensure data gathering continues.
Earlier that day Brown also acknowledged he is expecting a wide array of confrontations with the Trump administration, from health care to the environment. But if and when California’s efforts turn to legal action, they will come with a new attorney general at the helm. With former AG Kamala Harris (D) now in the U.S. Senate, Brown’s nominee to replace her, former state lawmaker and longtime Congressman Rep. Xavier Becerra (D-California), vowed to “advance and defend the rights – big and small – of all Californians.”
Under questioning from an Assembly committee meeting to consider his nomination, Becerra took great care to note the difference between federal laws and those that originated in California. The federal government would have to prove, he said, that in pre-empting a state law it is not violating the civil rights of the people of that state. He also said that while he would not go looking for a fight with the Trump administration he would not shy away from one either.
“I’m not a litigious guy,” he testified, “But I’m not going to let someone roll over me.”
He will have some help, at least in the beginning. Earlier this month the legislature hired former Obama administration Attorney General Eric Holder to help them with any legal challenges to new federal policies. The hire drew sharp criticism from Republicans, who said Democrats were being wasteful of taxpayer money by presuming what Trump would do before he has even been sworn in.
But de León defended Holder’s $25,000 per month price tag, saying, “It is a minimum investment because of what’s at stake here: Tens of billions of dollars that may be lost because of a hostile administration toward the policies of California and the people of California.”
These measures are all part of what Yale Law School Professor Heather Gerken calls “uncooperative federalism.” In an article written for Vox last December, Gerken noted that since the federal government relies so heavily on state and local cooperation in implementing federal laws and objectives, states “can influence policy simply by refusing to partner” with them, adding that defeating that kind of resistance often “costs fiscal resources and political capital the federal government would rather employ elsewhere.”
Gerken notes that cities may also practice their own “uncooperative localism,” particularly over immigration policies they dislike. In that regard, the city of Los Angeles – home to about 1 million of the state’s estimated 2.67 million unauthorized immigrants - is already well ahead of the legislature. The Los Angeles Police Department announced last November it would not aid federal officials in any future mass immigration sweeps. Mayor Eric Garcetti (D) also vowed to defend immigrants against any Trump administration actions the city deemed harmful to Angelenos.
“If the first day, as president, we see something that is hostile to our people, hostile to our city, bad for our economy, bad for our security, we will speak up, speak out, act up and act out,” Garcetti told the Los Angeles Times.
Several big city mayors from around the nation, including New York City, Philadelphia, Seattle and Minneapolis, have expressed similar intentions to protect their immigrant communities. And while Trump has threatened to cut off federal funding to cities that don’t do as he wants, a 2012 ruling that kept the Obama administration from similarly threatening to cut off federal dollars to states that didn’t go along with the Affordable Care Act may not allow him to do so.
None of this is particularly new. States have invoked federalism to resist federal policies they don’t like for generations. Until recently segregationists most famously used states’ rights as a mantra for resisting the advance of civil rights. But such tactics became commonplace during the Obama administration as red states sought to push back against the Affordable Care Act, federal clean air policies and other federal initiatives they disliked. Ironically, it will now be large-government blue states like California looking to embrace their inner Thomas Jefferson. Their success or failure is yet to be determined, but in a statement shortly after the election in November Assembly Speaker Anthony Rendon (D) made clear he and his colleagues are ready to rumble.
“Californians should be wary of the national calls for unity and healing,” he said. “Unity must be separated from complicity. We must be defiant whenever justice, fairness, and righteousness require. Californians do not need healing. We need to fight.”