After Impeachment, It’s Up to the States to Advance Democracy

Pelosi doesn’t want to hand over The Articles of Impeachment, which were fraudulently produced by corrupt politicians like Shifty Schiff in the first place, because after all of these years of investigations and persecution, they show no crimes and are a joke and a scam!- Donald Trump, Jan 9, 2020

Should they whisper false of you, never trouble to deny. Should the words they say be true, weep and storm and swear they lie! — Dorothy Parker

© goodmenproject

Although the focus of the political world, if not the public itself, is on the impeachment hearings, the consequences of this seemingly historical moment are inversely proportionate to the attention received. Only two things are inarguably accurate: first, the President abused his office in a banally corrupt manner, seeking foreign interference to smear an electoral opponent in a brazen attempt to benefit himself in the upcoming election; and second, that despite the first, at the conclusion of the impeachment saga he will remain in office, unbound and unbowed by the charges laid out against him. No matter the facts, the rhetoric, or the determination of the House managers, a substantial minority of the country regards the President as an impenetrable shield against the vision of an America they fear and disdain. Trump’s defenders in the impeachment trial have little but anger and bluster to defend his conduct, but when paired with 53 votes of raw power, they need no more. Metaphorically, Trump has shot the Constitution on 5th Avenue, but no matter: unlike Trump’s aim, impeachment is a bullet pre-determined to miss the target.

The conclusion of the trial, therefore, will impart no new era other than that of a chief executive unconstrained by the one theory of Constitutionalism that exists to deny him the abuses of which he has so cravenly availed himself. This will not be 1974- our long national nightmare will not be over, and no healing mechanism for the country is riding over the horizon.

The country will move on to the election, but no election can solve the massive schism which increasingly widens beneath our feet. Quite the converse, in fact; whatever the result, one side of the country will view the results with the dire portent of onrushing doom, rather than the rough but acceptable give and take of intramural democratic squabbling. Politicians may still clear their throats with bromides about the essential unity of the American spirit, that beneath it all we can work together- indeed, it’s Joe Biden’s central electoral thesis- but evidence for hope is not the same as hope for evidence, and the former is startlingly lacking. We are in a cold civil war, one without a plausible exit ramp.

That cold civil war, at minimum, obliterates any opportunity for meaningful national action via the federal government. The unifying elements which welded different portions of our society together in shared sacrifice, be they the mass-employment factory floor the universal military draft, or even the 6 o’clock network news, are relics of the past, and no reasonable proposal exists to reinstate the amalgamating edifice a national society requires. We live in a world wrought by mobile international capital, and its atomizing effects have broken intranational bonds even where transnational bonds have been forged. A white collar worker in New York increasingly sees a counterpart in London or Singapore as more of a natural confederate than a Wyoming rancher, national ties be damned, and the broken bonds of affinity are returned with equal measure of regret and fury. Our two Americas no longer recognize in each other the binding of shared citizenship.

The vehemence of breakdown apparently hasn’t registered in the Democratic primary, as each candidate seeks to outdo each other in the grandiosity of proposed federal action. Old beliefs die hard. Liberals hold onto the remaining thread in the garment of class-based unity, which purports to provide political demand for federal legislation sufficient to unify the working population and reunify the populace at large. But the last time that liberals held the presidency, both houses of Congress, and a majority of the Supreme Court was during the Johnson administration, now half a century in the past. The top-down, New Dealesque bounty of legislation that liberals pine for to address a variety of social ills simply cannot be utilized in an era (and error) of minority dominance. No matter Trump’s conduct, 42% of the population, give or take a percentage point, remains with him, always and irrevocably. Their love for him is a funhouse mirror of their fear and disdain for the rest of us, and that will not change; in fact, as demographic change inexorably reduces white political power, openness to racial demagoguery will only grow. The Trumpist population further exercises disproportionate dominance by virtue of the contours of the anti-majoritarian aspects of the Constitution. Given the immutable structure, the knot cannot be cut by an ever more reasoned argument. Vindication of the American republic will not come from the dogmas of our quieter, more unified past. Let’s instead preserve what we can.

***

Liberalism has generally eschewed state-based solutions, both from a philosophical belief in the universality of preferred solutions and the historical memory of retrograde state actions in defiance of racial equality. It required, after all, Congressional action and Presidential leadership to pass the legislation to federalize the fight against Jim Crow. Yet liberalism’s quest for the big solution, most recently seen in the battle for ACA, is built on a memory of an unusually unified part of our national past. The New Deal and the Great Society, the poles upon which the big tent of federal liberalism sit, were separated by just thirty years. For the remainder of our history, big-thinking liberalism often foundered on the rocky outcroppings of polarization and conservative opposition. So it is today.

Creativity in solutions is generally a virtue, not a vice. With the paralysis of the national government and the increasing division of many of the states themselves — just how many states are even competitive in the election? — it is blocs of states which may supply the best chance of certain progressive action. Individual states can, and of course do, offer many advantages. But the breakdown into blue and red provides possibility for concerted state action above which we have generally seen in our history.

Of the many genius-level innovations in the American Constitution, the ideal of dual sovereignty is among the foremost. Writing in Federalist 45, Madison assuaged concerns over the new federal government’s power by stating that “ the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty.” Precisely where state’s rights end and the federal government’s begin has been a constant tension throughout our history; the brilliance of the Constitution is that the tension is by design, intended to safeguard individual liberty by sheltering it between the diffused power of federal and state turf battles.

Federalism to fight Trumpism’s odious assault on American liberty and virtue is not a new idea. But individual states often do not have the economies of scale to make a sufficient impact. California, perhaps, but what of state-based health systems in, say, Delaware? Or Vermont, or Maryland? Only by yoking like-minded states together can liberal governance achieve, in this era, the critical mass its more grandiose plans require. If five, ten, fifteen, or even twenty states agreed to join together in shared programs, would we not at least mitigate some of the all-or-nothing harm wrought by the current heckler’s veto era in national governance?

Confederations of states pooling their power has an obvious negative echo, as the most potent expression of states’ rights, drawn together, was the Confederacy. But the idea of states working together has a more benign connotation as well. Interstate compacts, despite being utilized from the very beginnings of the Republic, are generally unknown to the public, an uninteresting concept at the outer rim of governmental amalgamations. In short, an interstate compact is an agreement between two or more states. They have generally been used for the mundane or the limited: to settle border disputes, or coordinate specific actions between states. The Port Authority of New York and New Jersey is perhaps the most notable example of the latter; the interstate popular vote compact, should it ever come into play, is yet another. Far from being uncommon, more than 200 administrative interstate compacts exist today.

The Constitution recognizes them, if in a negative manner. Article I, Section 10 provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Read literally, the Constitution would appear to negate any agreement between states absent Congress’s approval. Yet the Supreme Court has read the Compact Clause narrowly; not all compacts are prohibited, and in fact, compacts need no Congressional approval if they do not interfere in federal authority. Pursuant to U.S. Steel v. Multistate Tax Commission, decided in 1978, the “test is whether the Compact enhances state power quoad the National Government.” Where a compact “does not purport to authorize the member States to exercise any powers they could not exercise in its absence,” Congressional approval is not needed. It’s simply up to the states what they choose to do jointly.

Interstate compact jurisprudence has generally been a dusty backwater, so compacts have not as of yet tested the limits of the Supreme Court’s criterion for legality. The language of US Steel suggests, at least, that interstate compacts are permissible if individual states themselves hold the authority to legislate on the particular issue at hand. Within the test, in theory, lies ample flexibility to build pragmatic regulatory groupings, and perhaps beyond.

Pragmatism isn’t sexy, perhaps, but it can be effective. As the national government disintegrates, the need for coordinated state action rises in prominence. A strong history of federalism and the natural connectivity between political interests among like-minded states should provide a first level inoculation against a federal government increasingly held by insurgent outliers devoted to little else but self-perpetration of minority rule. States could begin to explore the formation of regional blocs which can devise uniform legislation, share costs and create economies of scale. Health care, hamstrung by Republican resistance to Obamacare, might be a natural first step. We know, after all, that ACA attempted to create 50-state solution to America’s health care woes. We know also, of course, that it prompted a virtual paroxysm of resistance and rage, historically more comparable to the Civil Rights Act than Medicare, a rage that hardened the steel of right-wing intransigence and provided a ready-made rallying cry of vengeance divorced from the actual effects of the law. Yet we also know that health care has traditionally been a state-based responsibility. ACA, after all, is famously derived from Massachusetts’ Romneycare system. In theory, an interstate compact by and among blue states, combining the populations and resources of a number of states, could mimic ACA on a smaller scale, and perhaps even improve on it. Given that states themselves also regulate anything from abortion to labor standards to guns to climate, state-based interstate compacts that create regulatory regimes from compliant state blocs could in theory move a progressive project along at a midpoint between federal action and those taken by individual states.

Would they hold up to Supreme Court scrutiny? Possibly; the Court hasn’t struck down a compact for failing to get Congressional approval since 1893. The rich irony of the argument for pushing the boundaries of interstate compacts is that to oppose such blue-state blocs, Republicans must argue against the very notions of federalism that they have often used as legislative mallets to batter down on liberal national dreams. Would Republican administrations actually demand that Courts strike down compacts because, for example, health care should only be a national project, thereby stating full agreement with the very idea that right-wing intelligentsia has viewed as untrammeled anathema? Doing so would almost certainly require an expansive view of the interstate commerce clause, the stretching of which has caused conservative teeth-gnashing for almost a century. That said, hypocrisy is in long supply now, so who knows: the very Court which would render such a verdict only exists in its current 5–4 composition because “Advice and Consent” was interpreted as “Eat Shit and Die.” Yet the delicious possibility of creating a Constitutional trap may well make the squeeze worth the juice. Either the Court confirms any of a number of compacts as legitimate, or it hands a stare decisis tool of inestimable worth to the next generation’s search for truly national solutions. Further, even a do-nothing, paralyzed Congress could be prompted to grant authority for interstate compacts. Red state legislators could find blue-state compacts a reasonable way to cool the temperature within Congress for national solutions, to avoid the Constitutional trap highlighted above, and potentially, to consider red-state counter-compacts as well.

In no way should federal policymaking be abandoned for good: the permeability of state borders makes some interstate compacts a pale and feeble replacement for federal action. Guns can be driven across state lines, and pollution created in one state can waft over another. Further, states can withdraw from compacts, and without an overarching federal government to enforce the compact, penalty clauses may fall afoul of the Constitution. But right now, we in essence face an all or nothing question at a time when even partial solutions to intractable problems may well have inestimable value. If interstate compacts seem divisive and small-bore, consider that the alternative is not the Second New Deal, but deeper paralysis and division. In other words, let’s save what we can, while we still can.

There’s little to celebrate in this proposal; it’s a couple exploring a trial separation rather than celebrating a golden anniversary, more acceptance of torn bonds than attempts to mend them at the point of greatest rupture. But the first step in solving a problem is acknowledging it exists, and the American democratic experiment, particularly at the federal level, is withering. States are intended in our system as, in Justice Brandeis’s words, as “laboratories of democracy.” That role was largely eclipsed in the New Deal and Great Society eras, but the political prerequisites to a dominant federal role were unique to a time now long since past. The states can and should again reclaim their traditional role as such laboratories. Perhaps, with a little thought and creativity, we can simply greatly expand the scope of the laboratories. In these times of hopelessness and discord, every idea, no matter how different from our past, must be on the table. Although we cannot replicate the New Deal, paradoxically the guiding spirit should be that expressed by FDR himself: “It is common sense to take a method and try it. If it fails, admit it frankly and try another. But above all, try something.”

Lawyer by day. Star Wars aficionado by night. Hug a wookie and fight the dark side.

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