Democracy Upside Down

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4 days ago

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Last month, President Donald Trump's administration scrapped a long-standing Texas law that provided access to financial aid for 'Dreamers'—undocumented immigrants, brought into this country as children, who grew up here, graduated from local high schools, and are committed to becoming permanent residents. The administration's allies tried and failed to persuade the state legislature, which is controlled by Republicans, to repeal the law, which has had nearly a quarter century of bipartisan support. So the administration made an end run around Texas's democratic process: The Department of Justice hatched a plan with Texas Attorney General Ken Paxton to kill the law, filing a joint motion that asked a federal court to declare the Texas Dream Act unconstitutional. A judge approved the motion the very same day. The whole process took just six hours. Whatever one's views are on Dreamer policy, the fact is that this maneuver went against the will of the people of Texas.
The organization I lead, Democracy Forward, has, along with several other groups, filed a motion to defend the law. Texans deserve to have the constitutionality of their Dream Act judged in court, not killed off via a collaboration between the president and the state attorney general. And even more alarming than the Trump administration's dismantling of this law is that it's part of a broader effort to short-circuit democracy at the state level.
State-level democracy is essential to America's federalist system. During another time in U.S. history when a majority of the Supreme Court was imposing barriers to the public's ability to self-govern, Justice Louis D. Brandeis famously observed, 'It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.' Later, Justice William Brennan argued that states have the 'power to impose higher standards' under state law 'than is required under the Federal Constitution.' Throughout America's long history, state-level innovations have pushed the country forward: Some states abolished slavery long before the Civil War, granted women the right to vote before the Nineteenth Amendment was adopted, and legalized marriage equality years before the Supreme Court's Obergefell v. Hodges ruling.
Of course, states have not always been on the side of human freedom and progress. Appeals to 'states' rights' have served as rallying cries for enslavers, segregationists, and others seeking to deny the rights of people and communities since the nation's founding. 'No state,' the Fourteenth Amendment proclaimed after the Civil War, shall 'deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' When America's system of government works as it should, the federal government steps in to prevent states from undermining human freedom.
[David Frum: The courts won't save democracy from Trump]
That's what America saw in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard to implement a Supreme Court ruling to desegregate schools; the governor, an avowed segregationist, had refused to comply. President John F. Kennedy similarly federalized the Alabama National Guard to carry out desegregation orders at the University of Alabama, again over the objection of a pro-segregation governor.
Now the president and his political appointees, not a state's governor, are ignoring federal-court orders. In April, a federal court found that the government had exhibited 'a willful disregard for its Order' that planes carrying migrants who had been denied basic due process be turned around until the court could hear the migrants' case. (Democracy Forward and the ACLU represent the migrants in that matter.) Two months later, in early June, Trump federalized the California National Guard and deployed active-duty Marines to Los Angeles without the approval of Governor Gavin Newsom, who argued that local law enforcement was fully capable of managing anti-ICE protests. Trump's move was a federal flex that made a mockery of state sovereignty and democracy, and created more chaos than it solved. Los Angeles Mayor Karen Bass said that what she saw in a local park 'looked like a city under siege, under armed occupation.'
To justify its actions in California, the administration invoked Eisenhower's 1957 move to enforce federal-court orders on civil rights. Yet Trump's actions aim for the opposite of Eisenhower's. Instead of using federal power to protect people's rights, Trump is misusing federal power to undermine them. That is democracy upside down.
Similarly, when Maine insisted that it would defend transgender athletes' participation on women's college-sports teams, the president brazenly interfered. Maine was following the law as it argued was set forth in Title IX and the state's Human Rights Act, but Trump sought to force a new interpretation of the federal law through executive actions, including a February order. That month, Trump pronounced, 'We are the federal law,' at which point the administration began a process to cut off funding to Maine's public-school meal programs as punishment—funds appropriated by Congress to help children in need. 'See you in court,' Maine Governor Janet Mills told the president. She did, and Maine won.
The administration has also attempted to usurp the power that the Constitution provides both Congress and the states. Article I, Section 4 of the Constitution mandates that only states and Congress can make or alter the 'times, places, and manner' of holding federal elections. Ignoring that, Trump, in an executive order, has sought to impose federal time, place, and manner requirements that create barriers to the ballot box. Much of this executive order has been blocked by two federal courts in response to litigation filed by 19 states, among other parties. One federal judge found that the requirements Trump is seeking to impose would create time-consuming burdens on states and could chill voter participation— 'the antithesis of Congress's purpose in enacting' federal election laws. (The Trump administration is also pressuring Texas Republicans to redraw congressional districts in the middle of the decade, outside the normal cycle, to skew the midterm elections.)
[Adam Serwer: Trump is wearing America down]
The Trump administration has called lawsuits filed against its actions 'frivolous' and 'vexatious.' But as with so many of Trump's attacks, this is really a confession. The Texas ploy is just one of many ways the administration is undercutting the checks and balances in the U.S. constitutional system. The administration has eviscerated agencies and programs created by Congress, attacked judges and the legal profession as a whole, and attempted to stifle a free and open press through intimidation tactics. It's all in keeping with a theme: To empower one man, you need to disempower everyone else, everywhere else—including in states where laws are counter to the president's political agenda.
What's happening in Texas, California, Maine, and other states goes beyond normal political disagreements or turf spats. This isn't the typical tug-of-war of federalism. The Trump administration is undermining foundational democratic principles and turning what are supposed to be 'laboratories of democracy' into laboratories of repression—something that should have no place in a nation founded on the promise of human freedom and the pursuit of happiness.
Article originally published at The Atlantic