The opponents of political conservatism are adopting a strategy from an unusual source – conservatives.
The decision of a federal district court judge in Washington State to suspend President Trump’s immigration moves is a clear example of that strategy.
Trump had imposed a ban or “extreme vetting” on refugees from some countries, relying on what he claimed were broad presidential powers over immigration. The Washington attorney general questioned those powers and went to the federal district court in Seattle to get Trump’s actions halted.
Giving itself the time to consider the Washington case without yet deciding on its merits, the court ordered a temporary halt to the new policy. Perhaps surprisingly, the judge ruled his decision applied nationally, though his usual jurisdiction is only western Washington.
The law allows any one of the 677 federal district court judges to apply some decisions nationally. This judge found the Constitution requires a uniform rule on immigration and limiting his order only to his area would disrupt national uniformity.
By what authority did he come to this conclusion? He turned to the case in which a federal court in Texas blocked President Obama’s policy not to expel many illegal or undocumented aliens. That case was launched by the attorney general of Texas, but the decision applied nationally.
When Congress found itself powerless to oppose Obama’s executive orders, some states moved into action. Usually led by Texas, they filed cases in courts they thought would be friendly, seeking at least to delay the president’s policies and in the hope the next president would abandon them.
Texas was usually backed by other conservative-led states. The Washington case is backed by 15 states and, unlike the Texas filings, by top American corporations.
The difference between the cases was that “no-drama Obama” did not protest when he lost, while Trump attacked the judge, an almost unheard of assault by one branch of government against another, and asserted he would win on appeal.
The main similarity was that a state, acting on its own initiative, could take on the president and did it. Like the Texas case, an appeals court upheld the ruling.
Conservatives, advocating a reduced role for the federal government, have long argued that more power should be left to the states. They claim that’s what the drafters of the American Constitution intended. While that view had withered, the Supreme Court has worked successfully to bring it back.
Trump’s victory and GOP control of Congress could result in the federal government backing off a broad range of actions from environmental protection to controls on Wall Street. Their policies could lead to more voter suppression and less health insurance coverage.
On all these issues, the states can step in to fill the gap. The 20 states carried by Democrat Hillary Clinton in the 2016 elections are home to 44 percent of the American population. State action there could have a major impact.
California, already a leader on environmental matters, has made clear its determination to protect and expand its policies. The federal government would have a tough time trying to block state action simply because it does not act nationally.
In the Collins-Cassidy proposal to allow states the option of retaining the Affordable Care Act, the two GOP senators would keep federal funds flowing to them. Even if their party would cut the money off, states could keep Obamacare or even adopt single-payer insurance.
In Canada, where there is now national single-payer health insurance, the program started in only one province with a population even smaller than Maine’s. California, with an economy that would make it the sixth largest “country” in the world, could do it.
It’s unlikely that the financial world would abandon Wall Street for Houston if New York State adopted some of the post-recession financial protective rules that Trump wants to abandon.
States could even decide to upset the Electoral College system of electing the president and replace it with the popular vote without amending the Constitution. States with at least 270 electoral votes could decide to bind their presidential electors to voting for the candidate with the most popular votes nationally.
President Trump seems to see himself as the CEO of the United States, expecting the other branches of government to fall in line with him because he won his election. The Washington court action, perhaps even more than Congress at this point, has provided him a basic course in U.S. government.
Progressive states have begun to assert the very kind of independence of Washington long advocated by GOP conservatives. As the old political saying goes, “What goes around, comes around.”