Washington v. Trump
Wednesday, February 8, 2017
WASHINGTON V. TRUMP: Shortly after the November election, the Gristle speculated the Western states may begin a new chapter of Federalism, that time-honored intricate dance between states’ rights and the overreach of federal directives that has defined so much of this nation’s history. For surely the Western states—with their heavy concentrations of Democratic governorships and administrations—are having a different conversation than other parts of the country on issues like human rights; immigration and labor; international trade; about ecosystems and the threats of climate change; about the importance of the regulatory environment in protecting the public from the worst excesses of markets and capital. At its core, it’s a conversation less about fear and grievance, draw-down and reprisal than has gripped other parts of the country. And the actions of our governors and elected representatives, both individually and in tandem among Western states, are certainly allowing that conversation and dance to occur.
Washington state made history last week, the first state to issue a global challenge of President Donald Trump’s Executive Order to restrict immigration from seven majority-Muslim nations and the resettlement of refugees. Other states had filed specific claims on behalf of individuals caught in the rapid implementation of the order, but Washington’s claim rests on constitutional grounds that practices that discriminate based on race, creed, color, or national origin are matters of public concern that threaten human rights and harm public welfare. The suit further argued that immigration is an important economic driver in Washington.
U.S. District Court Senior Judge James L. Robart found merit in the state’s arguments and issued a temporary hold on the executive order. This allowed refugees and migrants from seven Muslim-majority countries to resume travel to the United States, pending further review by the courts. Other states and others vested in the issue—such as the American Civil Liberties Union, constitutional law scholars, and influential companies that recruit, hire and retain gifted employees around the world—have filed briefs in support of the state’s position.
“The state needed to prove that irreparable harm was likely to occur without the restraining order, and that halting the president’s order immediately is in the public interest,” state Attorney General Bob Ferguson explained. “The state also needed to establish that the potential injury to Washington residents caused by leaving the President’s order in place outweighs any potential damage from halting it.”
Attorneys for the Department of Justice demanded that the temporary order be overturned in arguments before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco this week, citing the primacy of the executive branch on matters of national security. A ruling on the demand is expected this week.
In an interview with the Washington Post, Governor Jay Inslee argued that this action has broad significance, suggesting that this effort by the states could provide a model or a template for Democratic governors, states and others to mount further resistance to other aspects of Trump’s agenda on multiple fronts.
“This demonstrates the importance of governors and states in the four-year battle to preserve the fundamental values of this country,” Inslee told the Post. “The nation needs checks against a president who’s prone to rogue behavior, and governors will assume a more important place in the democratic system.”
Inslee suggested multiple ways in which Democratic governors can resist Trump, the Post reported. For example, governors can amplify the argument that the GOP plan to repeal the Affordable Care Act could result in untold numbers of their constituents getting thrown off of Medicaid, if the GOP replacement block-grants the program to the states, making cuts to Medicaid funds over time more likely.
Governors can also push forward with battling climate change and transitioning their states to clean energy economies, even if Trump continues to maintain that climate science is a hoax and tries to roll back carbon-reduction regulations.
“We can maintain an example for the rest of the country to show how you can grow your economy around a clean energy plan,” Inslee said. Many states have already begun to do this by encouraging renewable energy and setting their own ambitious reduction targets for greenhouse gas emissions, he said.
And governors can also help protect so-called “sanctuary cities,” which shelter undocumented immigrants by declining to enforce federal immigration laws against them. If Trump goes through with his threat to try to deny federal funding to sanctuary cities, Inslee said, that will face “a huge amount of litigation,” in part from states.
That protection is important, as cities like Bellingham—a border community highly dependent on travel, tourism and cross-border commerce—contemplate a more direct response to federal pressure to turn the nation inward and close off connections to the larger world.
It’s not just a matter of Bellingham declaring itself a sanctuary city—the city does not spend resources on federal immigration enforcement. Neither does Whatcom County, by policy.
For starters, local communities aren’t experts in federal immigration law and expose themselves to potential litigation by arresting people or holding them based upon their clothing or the color of their skin. On a more fundamental humanitarian level, city officials do not want residents and visitors living in terror of aggressive law enforcement that capriciously targets them based on appearance or mannerisms. This is not difficult to understand.
So whether a city declares itself a sanctuary or just acts as one, it is exposed to a threat of financial sanction. The Trump administration, outlining $10.5 trillion cuts to government spending over ten years, is assuredly not going to make federal law enforcement resources more available to communities. Larding sanction on top of constriction is just cruel.
Bad years are ahead for the states and their cities. Little understood or commented upon, the United States is just one state legislature shy of the necessary requirement for a wholesale rewrite of the U.S. Constitution by an extremist Republican Party with its hands on every lever of power, locked in place with gerrymanders and voting restrictions. We need our Democratic governors.
A new Federalism, a new way of resisting, may be the West’s best recourse.