The United States is a weird place in a lot of ways, and one of the weirder things about our system of government is its federalism. The doctrine of federalism establishes dual sovereignty between states and the federal government; everyone in the United States is governed both by the state they're in, and the laws of the entire nation. Where those laws conflict, the federal law controls. Anything the federal law doesn't address explicitly -- no matter how weird or random -- is supposedly left to the states. For example, my constitutional law professor once said that he'd spent a lot of time researching it and he was pretty sure that federal law would allow any state in the Union to actually require its citizens to be armed at all times. Not just allow it; require it. Of course, the states' rights issue everyone knows about is slavery. Before the Civil War, states reserved the right to ban or legalize human trafficking and involuntary servitude, without interference from the federal government, or other states. That doctrine had an important exception, that we'll get back to shortly. For now just keep it in mind as an example of what federalism can mean in the U.S. No state law too dumb or inhumane; if it isn't barred by federal laws or regulations, states can do it.
The thing some Americans have been demanding since time out of mind is basically maximal federalism; let the states make as many decisions as possible. Keep the federal government out of people's business. In the case of slavery, that was obviously unacceptable to abolitionists. Letting states make those decisions meant leaving millions of people in bondage. In the case of abortion, federalism was unacceptable to the Burger Court. And, having overturned Roe v. Wade, some Republicans are now trying to impose a federal law banning abortion across the entire country. Immigration is turning out to be one of those areas where state and federal interests diverge dangerously. But, for the most part, what MAGA Republicans are trying to sell the American people is a retreat of federal authority, and a return of that authority to the states.
The problem with federalism is that nobody has ever had a principled commitment to it. The antebellum slave states didn't believe in states' rights, for their own sake. They lobbied aggressively for the Fugitive Slave Act, which not only required states without slavery to enforce the "property" rights of human traffickers, but levied criminal penalties and fines against citizens of non-enslaving states, who could be shown not to have actively pursued escaped trafficking victims. The Fugitive Slave Act also commandeered the jails and taxpayer funded law enforcement officers of non-enslaving states, to return escaped trafficking victims to their attackers. If a trafficking victim showed up in New York, federal law required New York cops to arrest that victim, put them in a New York jail, and then arrange a prisoner transfer to a state where slavery was legal -- all at the expense of New York taxpayers, regardless of the fact that New Yorkers were explicitly against slavery. In the modern era, those of us who are in favor of states legalizing weed are just as appalled by the repeal of Roe v. Wade — even though what Roe did was to override existing state laws with a novel interpretation of the Constitution. We don't give a shit about states' rights for their own sake. Nobody does. We care about the policies we believe in, and federalism sometimes gives us latitude to do a thing in one jurisdiction that we can't get done in another.
This is going to be a problem with Republican federalism. Because Republicans talk a good game about states' rights, and local government, and federal interference. That's their logic for destroying the federal government, and removing federal regulation; let the states decide. But once they've destroyed the federal regulatory apparatus — and possibly even during the process of doing so — they're going to start blocking states from regulating based on principles of federal preemption.
Federal preemption comes in two flavors: express, and implied. Express preemption is exactly what it sounds like: a federal law declares states aren't allowed to legislate or regulate in a given area, and federal law controls. Implied preemption can be either be what's called field preemption or conflict preemption. Conflict preemption is when complying with federal and state laws or regulations simultaneously is impossible. In that case, the federal law or regulation controls (e.g. federal regulations say bananas must be peeled, state regulations say bananas may not be peeled, federal regulation wins; bananas must be peeled). The more dangerous one, for our purposes, is likely to be field preemption. That's one where a pervasive scheme of federal regulation implicitly precludes supplementary state regulation, or when states attempt to regulate a field where there is a sufficiently dominant federal interest. Detroit automakers have routinely attempted to use versions of this — with varying degrees of success — to keep California from independently regulating air quality and safety requirements for cars operating in the state. California has won most of those, historically, but the fact that Detroit has tried it should give you an idea of what’s possible in this area.
Field preemption is what Republicans are going to use to prevent the State of Washington from regulating its own environment, once Republicans have dismantled the EPA. They're going to claim that, having chosen to dismantle the EPA, Congress intended to create a pervasive scheme of federal regulation — meaning that the regulations remaining to the dismembered EPA are the only environmental regulations Congress wants, anywhere in the U.S. This is going to be used for product safety, employer liability, labor laws, maternity and family leave, you name it. All the stuff the Republicans are planning to get rid of at the federal level, they're then going to try to use field preemption to keep states from doing at the local level.
Of course, there's a lot of precedent on this stuff that mostly favors the states. State environmental agencies have laws in place that nearly mirror federal ones — state-level Environmental Impact Assessments are probably the example most regular people have encountered. But Trump-appointed federal judges are clearly prepared to overturn a lot of precedent, so those old rulings aren't necessarily safe.
For what it's worth, my personal beef with all this has always been that I'd like someone to just pick a side and stick with it. Not just for reasons of principle, but for practical reasons. If Democrats like federalism, then when we're in power we should, actually, be trying to pass laws that explicitly move the power for a lot of this stuff to state governments. Hell, here's a fun one: pass federal laws that allow states to offset up to 100% of their federal income tax obligation with state taxes, on a one-for-one basis. If Washington wants to use its money for mass transit, water quality, clean energy, and environmental protection, let them tax themselves to do it, and let Washingtonians take that money directly out of their tax obligation to the fed. In a couple of years, blue states would all be taxing themselves to pay for the stuff we like, and red states would be shit out of luck. Because most of them are net-negative on federal tax payments versus federal expenditures in their state.
But we don't do that, or anything like it. We continue to walk the line, between federalism and a unitary national government, and Republicans continue to claim states' rights, in order to be free of regulation, and a unitary federal government when states try to regulate, or when it's time to send tax dollars from New York, Massachusetts, California, and Illinois to Kentucky, Mississippi, and Alabama. I have nothing against the people of Kentucky, Mississippi, and Alabama in principle, and I'm happy to pay taxes that go to their healthcare or whatever. But if we're going to get rid of the federal government, we need to let states assume those functions if they want to. Otherwise we're not getting rid of the federal government so much as we're getting rid of all government. Republicans need to put our money where their mouths are: stop taking federal block grants if they aren't willing to staff the federal bureaucracy, accept federal regulations, or even allow the federal government to spend some of the tax dollars in the states that generated them. That would be a fine position for Democrats to adopt.
What we're going to do instead will likely be some version of what we've been doing for 65 years: Republicans are going to break a bunch of stuff while they're running the country, then Democrats are going to take office and spend their entire term fixing all the broken things. Voters will resent them for "not getting anything done " — when in reality they're the only reason we continue to have roads and water and the FBI — and then voters will put Republicans back in, to break some more shit.
Democrats need to at least have an open conversation, in public, about whether this is what we all want to spend the rest of our lives doing. In the meantime, be ready for Republicans to suddenly discover they love federal regulations, if states try to take up any slack from this culling the GOP is planning in the federal bureaucracy. It’s one of their favorite one-two punches: remove the federal government’s ability to do a thing, then use the federal government to block states from doing it. That’s the one to keep an eye out for.