One pleasing benefit of Donald Trump’s presidency has been the restoration of the media and the Left’s interest in federalism. How we got here is a slightly embarrassing and winding path back toward admitting that there is a 10th Amendment.
Go back a few weeks, and you’ll see widespread belief among the elites that the federal government had the primary duty to control businesses and public places. Democratic lawmakers attacked Trump for not wielding the powers of a governor or a mayor. Maybe they were simply looking for any reason to attack Trump. Maybe they were acting out of sheer ignorance of the Constitution. Maybe they are just statists engaged in wishful central planning.
Why have an executive branch if it isn’t willing lead at a time like this?
All of these decisions to cancel events, close schools or postpone opening days have been made by state, local and private sector leaders.
Why is everyone else leading, except for our President?
— Chris Murphy (@ChrisMurphyCT) March 12, 2020
Democratic Mayor Latoya Cantrell of New Orleans tried to pass the buck to Washington in an effort to exculpate herself from the folly of allowing Mardi Gras to go ahead. “When it’s not taken seriously at the federal level,” she said, “it’s very difficult to transcend down to the local level in making these decisions.” The devil, it appeared, had made her do it.
U.S. journalists were baffled that states were leading the efforts on closing schools, restaurants, and events. In their eyes, Washington should have been doing such things nationally, and the states were picking up Trump’s slack.
But the most reasonable liberals saw the virtue in federalism and suggested that this crisis provided an argument for further divesting power from Washington to the states.
Our states & cities, governors & mayors, are leading the way & protecting us during this crisis. If we want to counter Trump’s function, National polarization, and strengthen our democracy, devolve power to them. https://t.co/Ihyi7hFvyW
— Richard Florida (@Richard_Florida) March 25, 2020
In the tweet above, Richard Florida was right. And in fact, state leadership on public health responses to the pandemic was fitting. Federalism, as baked into our Constitution, calls for this.
Walter Olson put it concisely in a March 30 Wall Street Journal opinion article: “In America’s constitutional design, while federal law is supreme, the national government is confined to enumerated powers. It has no general authority to dictate to state governments.”
Olson was articulating a position that is not generally popular on the Left or in legal circles these days — that the 10th Amendment has force and thus the federal government is limited to its enumerated powers. In fact, when Barack Obama was president, writers on the Left likened that position to a racist conspiracy theory.
Ian Millhiser called anyone who cared about enumerated powers and the 10th Amendment a “Tenther.” “While ‘birther’ conspiracy theorists dominate the airwaves with tales of a mystical Kenyan baby smuggled into Hawaii just days after his birth,” Millhiser wrote, “these ‘tenther’ constitutionalists offer a theory that is no less radical but infinitely more dangerous.”
It was “fundamentally authoritarian” for conservatives to posit such limits on federal government power, Millhiser spat. Others on the Left loved the nonsensical slur.
But something has happened recently — we got a Republican president, and he made an absurd and unconstitutional claim of absolute federal authority.
The response from Democrats and the media? Why, suddenly, they are all “Tenthers” too!
Vox.com has a piece exalting the 10th Amendment. It’s even good! The highlights: “The federal government’s powers are restricted to a broad-but-limited list of enumerated powers, and the 10th Amendment reserves any power not mentioned on that list ‘to the states’ or ‘to the people.’….
“Because the state and local governments own and operate public schools, the federal government cannot lawfully order those schools reopened. Schools will reopen when governors, mayors, or other relevant state and local officials decide to open them.”
Hear, hear!
Liberal reporter Yamiche Alcindor is also a “Tenther”!
President Trump: “The federal government has absolute power.”
Fact Check: Again, this is definitely not true.
Source: The Tenth Amendment of the U.S. Constitution. https://t.co/m4TwUKo0ss
— Yamiche Alcindor (@Yamiche) April 13, 2020
Perhaps Trump’s most dedicated supporters will decide that the federal government really does have absolute authority over the states. But they’ll be wrong, of course. One position was the correct one all along. It’s truly gratifying to see so many liberals abruptly change their minds and decide that the 10th Amendment is a real thing, not some racist conspiracy theory.
