As executive action becomes more frequent, so, too, does states’ resistance to it.
In an attempt to fend off an administration they don’t like, a number of states are taking President Trump to court, suing to counteract his executive overreach. It marks an unexpected return to federalism, a tactic that Democrats have used against the White House several times. First, it was Trump’s travel ban, which barred entry from several Middle Eastern countries. The Ninth Circuit upheld their injunction until the Supreme Court struck it down.
More recently, attorneys general from 22 states filed a lawsuit against the administration for weakening Obama era climate laws. Now, 13 states are suing the Department of Homeland Security over its “public charge” rule, which would deny legal access to immigrants based on their dependence on public, taxpayer-funded services, like Medicaid and food stamps.
This trend of state resistance began during the Obama era, as Charles Krauthammer once noted, when Republican attorneys general banded together to sue and block Obama’s presidential power grabs. Where Congress failed to act, the states stepped in. They successfully blocked Obamacare’s forced Medicaid expansion, though the Supreme Court kept much of the program intact, and they stopped an executive order that would have given amnesty to 4 million illegal immigrants.
Democrats clearly took notes, because they’ve made it clear that they will similarly use the judicial branch to fend off executive overreach.
“The rule is arbitrary, capricious, and an abuse of discretion because — among other reasons — it reverses a decades-old, consistent policy without reasoned analysis,” Washington Attorney General Robert Ferguson wrote in the 169 page complaint.
Ferguson makes an important point: The DHS’s move is an attempt not just to enforce a law, but to redefine it. This is not the president’s job, it’s Congress’s. The legislative body passed the Immigration and Nationality Act and it must set its boundaries. But the problem is that Congress gave up on any kind of meaningful legislative responsibility a long time ago.
Regardless of the lawsuit’s outcome, it seems the states have finally found their spines. Their action marks a remarkable innovation in the system of checks and balances. Congress has largely abandoned its role as a governing body, willfully sitting back as the executive branch takes more power for itself. Someone has to keep the president accountable, and if Congress won’t, the states can at least try.
Trump will complain, just as Obama did, about the states’ attempt to shut his policies down. But functioning tension is far better for American governance than blind obedience. That is, after all, how the Constitution is supposed to work.
