States’ rights was formerly a buzz word for defying the federal government—in all the wrong ways. It was used to justify racist policies, and sometimes held up by the Supreme Court. For example, Confederate states opposed states’ rights when it came to the Union states’ right to oppose slavery.
Since the Republican Party seized control of the country in 2016, some states are defying the federal government—using legal means—to protect citizens from draconian laws and policies (note: policies are not laws). Some states are making sure that one’s immigration status has nothing to do with obtaining a driver’s license. Some are passing common-sense gun regulations and finding ways to relax marijuana prosecutions without violating federal law.
It would seem that as long as the 10th Amendment to the Constitution remains intact, New York can proceed with its progressive agenda, and when necessary, sue the Trump administration (again) for its abuse of power and violations of the Constitution.
Fly in the ointment: the Bill of Rights is the first 10 amendments to the Constitution, but in 1833 (Barron v. Baltimore), the Supreme Court held that the Bill of Rights didn’t apply to state governments, just the feds. The court said protections were provided to the states by the constitutions of each state.
The 10th Amendment says, “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.” In other words, the federal government has only those powers specifically granted by the Constitution. This is supposed to protect us from big, intrusive federal government action. However, state constitutions are subject to federal law. How’s that working out for us?
The law that applies when state and federal laws disagree is the Supremacy Clause (in article VI of the Constitution). It contains the doctrine of pre-emption, which says that in the case of conflicting legislation, the federal government wins. It’s the “supreme law of the land.” A federal court can make a state stop behavior that the court believes interferes with, or is in conflict with, federal law.
BUT according to the Supreme Court, the federal government/Congress can’t make law enforcement agents enforce federal regulations. So any time ICE muscles a local law enforcement agency into cooperating in Trump’s immigration “policy” (again, it’s not a law), ICE actually is breaking the law. Federal law.
Basically, if a federal and state law contradict, when you’re in the state you can follow the state law, but the feds can decide to stop you. Since the Supreme Court has the final say on any issue of federal law, including constitutional interpretation, and can overrule decisions by state courts, where the heck are our states’ rights here?
The answer lies with state attorneys general—and the courts. For example, in 2018 New York sued to prevent a question about citizenship being used in the 2020 Census. The U.S. District Court for the Southern District of New York decided that Secretary of Commerce Wilbur Ross’s decision to add the question was unlawful. New York is just lucky that the court was reasonable.
New York didn’t fight the battle alone—it headed a coalition of 34 states, cities, and the U.S. Conference of Mayors, and the suit was joined with one brought by non-profit groups. Nevertheless, whatever New York can do to alleviate the damage done by the Trump administration is down to states’ rights.