Conservative politicians love to celebrate states' rights, using a rhetorical commitment to local control as an excuse for blocking progressive policies. Standing behind the idea that states should have the final say has become an almost rote response of Republican members of Congress when they are pressed on social issues.
Conservatives emphasized on states' rights when it came to slavery and Jim Crow, and they continue to do so with regard to hot button issues such as gay marriage, abortion, and separation of church and state.
Tellingly, when Vice President Mike PenceMichael (Mike) Richard PenceJan. 6 panel plans to subpoena Trump lawyer who advised on how to overturn election Pence to deliver address on 'educational freedom' in Virginia Obama looks to give new momentum to McAuliffe MORE was asked about the removal of confederate statues, he did not say that monuments to treasonous racists should be taken down, he instead argued, “Obviously, I think that should always be a local decision.” He said the same about the confederates displayed in the U.S. Capitol, the removal of which he said “should be a state decision."
For many Americans, the states' rights argument is attractive, even though (or, sadly, perhaps because) cries to respect states' rights historically were used to defend state practices that discriminated against minorities.
While as a country we imagine ourselves as strivers willing to relocate at will for career opportunities and clichéd accounts of the rural to urban move abound, in fact a sizable percentage of the population is remarkably homebound. According to a recent survey, more than half of Americans live near where they grew up. And prior research shows that almost forty percent of Americans “have never left the place in which they were born.”
No wonder politicians of both parties love to beat up on Washington, D.C. and attack the federal bureaucracy. State governments may be no better, no more efficient, and no less corrupt, but for many people the federal government is “external” or “other” in a way that their local governments and local politicians are not.
There are of course people who identify less with any particular state than with the nation as a whole, but there is a deeply rooted tradition of distrusting and disfavoring federal imposition on state authority.
But however often conservatives drag out the 10th Amendment, there is no hiding the hypocrisy of these arguments in light of the ways in which Republicans are eager to impose federal requirements on states when doing so aligns with their politics.
The U.S. Department of Health and Human Services announced recently that it would no longer accept state applications for waiver of welfare work requirements. The Aug. 31, 2018 information memoranda from the Office of Family Assistance notes that in 2012 the Department decided to allow states to apply for waivers from the general work requirements of the Temporary Assistance for Needy Families (TANF) program.
What makes this policy reversal remarkable is that it flies in the face of conservative rhetoric that local approaches and solutions are best, especially when it comes to tackling poverty. Under this new policy, even if a state determines that educational and training programs would benefit the poor in the state more than the adoption of a work-first approach, the Trump administration will block the states' decision.
The Department blocked Ohio’s application to support workforce programs through a request that the federal government waive some of the welfare work requirements on the same day that the Department announced they would no longer accept waiver requests. Such a decision amounts to an assertion by the federal government that it knows more about the Ohio poor and their needs than does the state of Ohio.
It is worth being clear that deference to local decision making and to states is not always a good thing, nor is it a good idea for progressives to support states’ rights indiscriminately. Following the Republican sweep of the last elections, Democrats and progressives embraced localism and states’ rights like never before. Democrats hope that sanctuary cities and other local sanctuary policies can dampen the force of Trump’s anti-immigrant agenda.
Progressives are defending the right of localities to deny access and information to U.S. Customs and Border Protection agents and are celebrating defiance of immigration raids. But as Yale Professor Christina Rodriguez noted in 2008, localism in immigration policy can run both ways.
Sanctuary cities such as Los Angeles and Takoma Park, even sanctuary states such as California, are one form of immigration localism, but so too are xenophobic city ordinances that make it hard for immigrants to live or work in particular communities. Progressives’ rediscovery of states’ rights reflects more the need for pragmatic ways of resisting Trump more than it does a major policy position on the left.
Put differently, progressives can simultaneously believe federal immigration raids in sanctuary cities would be wrong and that the use of federal troops in response to southern defiance on integration was right.
In the poverty law context, they can support states seeking TANF work requirement waivers and oppose allowing states to impose work requirements on Medicaid recipients. Progressives tend to focus more on helping the vulnerable than on favoring states’ rights so selective, pragmatic defense of localism is not hypocritical even though progressives often favor federal authority. The progressive approach is outcome, not process, oriented when it comes to promoting states’ rights.
Not so for Republicans, who at least rhetorically have long championed states’ rights as something with independent value. Selectively jettisoning states's rights when state policies conflict with other aspects of the Republican agenda is hypocritical and ought to be viewed critically. What is notable about the recent relatively minor policy change by the Department of Health and Human Services is not that Republicans support work requirements, which they have long supported, but the casual undermining of states’ rights.
Faced with the possibility that states might decide to follow a path that conflicts with the party’s commitment to imposing work requirements on welfare recipients, the Trump administration blocked the alternative path. Though particular states' — famously called “laboratories of democracy” by Justice Brandeis — may want to approach welfare differently, when it comes to imposing requirements on the poor, the administration seems all too willing to move away from states’ rights whenever convenient.
Ezra Rosser is a law professor at American University Washington College of Law. You can follow him on Twitter @EzraRosser. The views expressed by contributors are their own and are not the views of The Hill.
The views expressed by contributors are their own and are not the views of The Hill.