July 13, 2017
How many of us laughed when then-governor Rick Perry called for Texas to secede from the Union? He famously said, “When we came into the nation in 1845, we were a republic, we were a stand-alone nation. And one of the deals was, we can leave anytime we want. So we’re kind of thinking about that again.”
California or Texas seceding? Unfathomable, right? Perhaps not. What is simmering in the chaos of a Trump presidency is a battle between state rights and the federal government. With hot-button issues like immigration, marijuana, transgender rights, states are no longer content to sit on the sidelines, while their constituents are threatened.
This tug-of-war between state rights and federal law wasn’t invented during the current presidency. It dates back to pre-Civil War rhetoric. Northerners traditionally advocated a strong federal government which provided the legal underbelly for outlawing slavery. Southerners resisted the idea of releasing their livelihood, i.e., their slaves and referred opponents to the Tenth Amendment of the Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This clash resulted in invoking yet another part of the Constitution, the Supremacy Clause, which states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
It seems clear cut, but what happens when state law clashes with federal law? If state law offers greater rights than the federal law, it appears that the state law should technically prevail as the winner. But that always isn’t the case. When there is an opposition between state and federal law, the U.S. government has the right to preempt state law in the case of conflicting legislation. Only in the absence of federal law and where a state affords more protection for its constituents, does the state law have legal standing.
Does this mean that the power of the people is subverted in a Trump regime? Not at all. In the last year, we’ve witnessed a shift in the political landscape at the city and state level with attorney generals of several states filing lawsuits against President Trump and the government. An obscure clause of the Constitution—the Emoluments clause— is enjoying a revival. Under Article I, Section 9, the Emoluments clause was written to prevent presidents from currying favor with foreign governments with gifts and favors. It reads in part, “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign state.”
The resurrection of focus on this clause is warranted since Trump has departed with presidential norms and has not placed his business interests in a blind trust, but instead has elected to transfer his holdings to his sons. Attorneys general in the District of Columbia and Maryland filed a lawsuit on June 12 alleging President Trump violated the clause by accepting money from foreign governments for his D.C. hotel because he still retained possession of these assets when he took office. Maryland’s Attorney General Brian Frosh says, "It's unprecedented that the American people must question day after day whether decisions are made or actions are taken to benefit the United States or to benefit President Trump.” It’s difficult to ascertain Trump’s business interests—he refuses to disclose his tax returns or transfer his holdings to an independent trustee. How do the American people know that he isn’t receiving benefits to his business holdings from the executive orders and policies he is shaping? The lack of transparency is more than a passing concern. D.C’s Attorney General Karl Racine contends "traditional checks and balances are failing us when it comes to assuring that Trump doesn't abuse the presidency for personal gain.”
When asked to defend himself against these allegations, his then-spokesperson Sean Spicer dismissed the veracity of the claims by suggesting that it would be too complicated for the president to sell his business interests and put them in a blind trust. In other words, Trump isn’t planning to embrace transparency anytime soon.
The real question: Will the lawsuits lead to a substantial change? This is unchartered territory. Cases revolving the Emoluments clause don’t typically arise and there is no clear legal precedent on how to proceed. A key part of winning under the clause is to show that the Plaintiff is incurring some kind of harm. District of Columbia’s Racine may have the best chance to prove that. “If D.C. can allege that it has lost economically because of the benefits derived from the Trump violation of that Emoluments Clause, then D.C. could sue,” argued Erwin Chemerinsky, dean of the University of California at Irvine School of Law and an American Constitution Society board member. “And the way to do that would be to show that foreign governments are sending business to the Trump hotel that would otherwise go to D.C.’s hotels.” This, of course, isn’t going to have any immediate impact on what Trump is doing right now. With litigation, there is no predictor on a timeline and the chances are this issue could be at a standstill for many years to come in the justice system.
Even with the possibility of legal action dragging on for years, others are following the same philosophy as Frosh and Racine. New York’s Attorney General Eric Schneiderman, is leading a ten-state lawsuit against the administration regarding stalled pollution rules. He “accuses the U.S. Department of Energy of violating federal law by halting the implementation of national energy efficiency standards for major appliances like air conditioners, ceiling fans and freezers.” Schneiderman believes Trump’s environmental policy has the power to endanger the public health. He isn’t the minority in this position. California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Vermont, Washington, Pennsylvania’s Department of Environmental Protection and New York City also joined him in the suit.
Schneiderman is a formidable opponent for Trump, and is also his Achilles’ heel. For example, although Trump vowed to never settle his University lawsuit, he eventually did for 25 million. Schneiderman believes “This is a president who doesn’t like to see checks on his power and a Congress with “a real reluctance to serve as a check on the Executive branch.” The New York Attorney General has taken a hard stance on immigration too. Trump’s controversial immigration ban, as well as his revision, is receiving significant pushback from not only New York, but other states as well. “As our complaint details, President Trump’s second executive order is just a Muslim ban by another name, seeking to accomplish the same unlawful and unconstitutional goals of the first ban,” said Attorney General Schneiderman. “The Trump administration’s continued intent to discriminate against Muslims is clear—and it undermines New York’s families, institutions, and economy. I’m proud to join my fellow Attorneys General as we marshal our resources to take on this latest unconstitutional executive order.” New York joined Washington, California, Maryland, Massachusetts, and Oregon against the ban. Trump has endured limited success with the ban, with the Supreme Court hearing arguments when it convenes in October.
Another leader against the immigration ban and the climate-control policy is Governor Jerry Brown who is perhaps the most vocal in its opposition, tweeting recently, “Trump is AWOL but California is on the field, ready for battle.”
California prepared to resist Trump the moment he was inaugurated into office, hiring Eric Holder to assist Brown "to protect California's economy and our sensible policies on climate change, health care, civil rights and immigration. “This is a critical moment in the history of our nation,” said Brown. “We have an obligation to defend the people who elected us and the policies and diversity that make California an example of what truly makes our nation great."
Brown also stated that under Trump, sanctuary cities could receive a cut in funding because of their decision to protect immigrants or other people hurt by specific legislation. A Federal Judge has ruled that it would be wrong to punish sanctuary cities because of their lack of compliance with federal law, especially in reference to immigration. This victory might be short-lived because the House introduced a bill, which is a moral blow to sanctuary cities and their push to protect their people. The bill, which will have a bumpier road in the Senate, compels “sanctuary cities to fully cooperate with ICE by withholding federal grants from jurisdictions that fail to respond to detainer requests.”
Cities are not idly standing by either. Seattle and Portland filed lawsuits against the Trump administration for denying them federal funds because of their position on immigration. Portland Mayor Tom Wheeler says, “It’s not merely that our cities’ values are under attack, it’s that these attacks are against the law. Together, we are standing up for our values and the Constitution.” Michael Hancock, Denver’s mayor, is fighting Trump’s policies too. Now legal immigrants committing petty crimes won’t be deported—Denver’s law reduces the penalty for these crimes from one year to less than 365 days. This typically takes these offenders out of the immigration spotlight because authorities are flagging individuals whose crimes carry sentences for more than one year. By advocating this policy, Hancock vows to take “actions that will protect our people’s rights and keep our city safe, welcoming and open.”
The most valiant states and cities are trying to put up measures to stop Trump’s policies from taking effect or having a longstanding impact, but the real fear is that much of this could be litigated for years to come. And as history shows, Trump is not afraid of the law or fighting his opponents in court.
So who really holds the “trump” card? The federal government? Or is it just a “state” of mind? For this administration, at least, apparently it depends on the day, the court case, and who you ask.