The eyes of the political world are on the United States as President Barack Obama seeks a second term against the background of a fragile economy. Republicans aim to win the White House and the Senate while maintaining control of the House of Representatives and a majority of statehouses.
Although economic issues are expected to dominate these campaigns, the underlying political debate concerns the role and reach of government, which most Democrats want to maintain — or expand — and most Republicans hope to reduce. Regardless of the verdicts of the voters, both the White House and Congress could have their wings clipped by the U.S. Supreme Court, which is poised to rule in several cases that would limit federal power or require more sharing of it with the states.
Can the federal government require Americans to purchase health insurance, the crucial financing provision of the Patient Protection and Affordable Care Act that Obama signed into law in 2009? Can states empower local law enforcement to determine the immigrant status of persons they detain? May states require voters to purchase photo identification? Has Texas violated the Voting Rights Act in its congressional redistricting?
Pending high court decisions on these issues could, in the words of Tim Storey of the National Conference of State Legislatures, “redefine federalism for years to come.”
“Federalism” is a catch-all phrase denoting the relationship between the federal government and the states. An arcane subject to all but constitutional scholars and political scientists, it is nevertheless a key feature of our governmental system. Federalism’s basic text is the Constitution’s 10th Amendment, which says “the powers not delegated to the United States (government) by the Constitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people.”
These straightforward words, often cloaked in the mantra of “states’ rights,” provoked troublesome conflicts in the early days of the republic and continued to do so even after the Civil War bloodily determined the indivisibility of the Union. The most malignant expression of “states’ rights” was an elaborate and repressive system of racial segregation that the South — and numerous outposts in the North — maintained for nearly a century with the blessings of the Supreme Court.
But there was always a benign side to states’ rights, which freed the creative political energies of Americans to a degree unknown in nations with more centralized authority. This value was thoughtfully elucidated by Supreme Court Justice Louis Brandeis, who said in a 1932 dissenting opinion, that 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 country.”
States have tried out such ideas as unemployment insurance and bank deposit insurance that subsequently became federal law and pillars of the economic safety net. In 2006, acting at the behest of Republican Gov. Mitt Romney, the Democratic-controlled Massachusetts Legislature passed a law providing health care for state residents, financed by a requirement that everyone purchase medical insurance.
As Republican a presidential candidate, Romney is now doing pretzel-turns explaining why that requirement was a wonderful idea for Massachusetts but a terrible one for the United States. His political contortions aside, there is a genuine and unresolved question of whether Congress can compel people to buy health insurance. Every Republican state attorney general in the nation contends this requirement is unconstitutional. Lower courts have split on the issue, with a ruling from the Supreme Court expected early this summer. If the mandate is struck down, the costs of the federal health care law would be unsustainable.
But because health costs are rising anyway, mandatory insurance is unlikely to go away. Presumably, in the absence of a federal law, some states would scramble to emulate the Massachusetts plan, the template for the federal bill that Republicans call “Obamacare.” The Massachusetts law has not been challenged constitutionally.
While the Obama administration is playing defense on the national health care law, it is mounting an aggressive legal offense against restrictive state immigration laws. The best-known of these measures is the 2010 Arizona law that sought to identify and deport illegal immigrants and included a provision, since blocked by a federal appeals court, empowering local law enforcement officials to check the immigration status of criminal suspects they detained.
Many states have emulated Arizona, notably Alabama, which also allowed schools to check the immigration status of their students. This provision, too, has been blocked by a federal court, as have extensive parts of immigration laws in Georgia, Indiana, South Carolina and Utah. In the most recent case U.S. District Judge Richard M. Gergel said South Carolina may not set up a “street-level dragnet” to stop and arrest illegal immigrants. Gergel upheld the Obama administration’s position that immigration regulation is solely the province of the federal government.
The argument against this position is that when Congress last revised immigration laws in 1996 it said states could “cooperate” with the federal government in “the identification, apprehension, detention or removal of aliens not lawfully present in the United States.” States that have passed restrictive immigration laws claim that’s what they’re doing.
Whatever the high court decides, the controversy has called attention to the lack of a comprehensive federal law to secure the nation’s borders and address the status of illegals who have long lived in the United States. Obama promised during his 2008 campaign to introduce such a measure but has not done so.
State efforts to require voter identification as a condition of voting have also come under court scrutiny. Thirty-one states now require voter ID, including eight states that have a strict photo identification requirement. One of the eight is Indiana, whose voter-ID law has been upheld by the Supreme Court.
Republicans say such laws are needed to prevent fraud; Democrats contend they are a ruse to discourage minority voting. The problem, as NCSL’s Jennie Bowser observed, is that “neither side has been able to assemble much evidence to back up its contentions.” Accusations of voter fraud at the polls are rare but so is the evidence that strict voter-ID laws discourage minority voting, which increased in Indiana after its law was passed.
But the Justice Department found a sliver of a constitutional argument when it used the Voting Rights Act to block South Carolina’s strict voter-ID law. The law requires voters to bear the expense of photo identification; a similar law in Georgia that has been accepted by the courts provides voters with a free copy of a photo ID. Requiring voters to purchase identification, the Justice Department contends, amounts to a poll tax, an unconstitutional device once used in the South to discourage African-Americans from voting. The case is expected to reach the Supreme Court.
The high court acted decisively Friday in a tangled Texas congressional redistricting case. Under Section 5 of the Voting Rights Act, Texas is required because of past discriminatory practices to pre-clear redistricting maps with the Justice Department or a federal court in the District of Columbia.
Texas received four new U.S. House seats as a result of the 2010 census. Although Latinos accounted for 65 percent of the population gains, none of the new districts mapped by the Legislature had a Latino majority. Texas sought pre-clearance of its maps from the D.C. court, which is still conducting hearings on the request, while civil rights activists objecting to them filed challenges in a federal court in San Antonio.
Instead of limiting itself to the disputed districts, the San Antonio court redrew redistricting maps for all Texas U.S. House seats and the Legislature. Republicans claimed this was judicial overreach, and in its unanimous decision Friday the Supreme Court implicitly agreed, holding that the San Antonio court had shown insufficient deference to the Legislature.
“A district court should take guidance from the state’s recently enacted plan in drafting an interim plan,” the Supreme Court said in an unsigned opinion that ordered the lower court to take a fresh look at the redistricting maps. The New York Times quoted UC Irvine law professor Richard L. Hasen, an election law expert, as calling the Supreme Court decision a “big win for Texas” that was likely to favor Republicans over Democrats. But candidates of both parties are up in the air since they do not know the boundaries of the districts in which they will be competing. Texas already has moved its primaries to April 3 from March 6.
The Texas redistricting case starkly demonstrates the judicial role in federalism, and Supreme Court decisions on the health-care mandate and state immigration laws could have even greater consequences. The only thing that can be said with reasonable certainty is that no matter what the election results, the last words on federalism are coming from the courts.
— Summerland resident Lou Cannon is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally.