Remarks on the Role of States in the Trump Era

On Tuesday, Sept. 12, 2017, Senator Eric P. Lesser gave the following remarks at Western New England University School of Law.

Thank you to Western New England Law School for welcoming me today. A special thank you to my friends Dean Eric Gouvin, Professor Art Wolf, and Professor Sudha Setty. I appreciate the kind invitation.

It’s an honor to be here, and to be at this law school in particular, given its long and proud history as an incubator for public servants and social justice.

That mission is especially important now, at a vexing and challenging time in our nation’s civic life.

It seems like every day we are stunned by a new development, a new tweet, a new pronouncement that challenges each of us and drives wedges between us.

For law students, in particular, turning on the news feels like living through a real-life issue spotter:

Can a President actually fire an FBI Director, no matter the reason or motive? Do the provisions of the Paris Climate Agreement actually allow the U.S. to immediately withdraw?

How far does the power to pardon extend, and what impact does it have on the Separation of Powers if it nullifies a court injunction?

What is the Emoluments Clause of the Constitution?

All these vexing legal questions have come up just in the past few months. So now you can never say your legal education is irrelevant.

This is certainly no ordinary time.

While it’s trendy to blame the current tumult in our political system on our current President, the reality is that our civic life has been deteriorating for a long time.

This is especially true for our generation. After coming of age during the Clinton Impeachment, September 11, the wars in Iraq and Afghanistan, the financial crisis and the Great Recession, it’s easy to understand why millennials are cynical, even angry, with a political system that has let us down and left us out.

But with all that said, I come to you with a challenge . . .

Because of your education, because of your inherent smarts, each of you has a lot to contribute. And especially because of your legal training, each of you will have immensely powerful tools at your disposal to help your fellow man and contribute to restoring our country’s civic fabric.

So at this point, you may be saying to yourself, ok, I know this is all very important, but what can I do about it?

Well, first, study and focus on school. But next, if you want to influence public policy in a meaningful way, focus on your local city and state.

States are the traditional “laboratories of Democracy,” the place where new ideas and approaches can be experimented despite the paralysis in Washington.

In our Federal system of government, the residual power not included in the Constitution rests with the states, not with the Federal government.

You are all familiar with this concept from law school. For example, as a 1L you learn about the Erie Doctrine, which explains that there is no Federal common law because power lies with states, so in the absence of a specific federal question, it’s state law that prevails.

This concept goes back to the founding of our country, which began as a group of 13 individual colonies under a loose Articles of Confederation.

After Shay’s Rebellion (which occurred just up the road at the Springfield Armory), the weakness of this system was revealed. Under the leadership of George Washington, the 13 separate colonies convened and setup a Constitution that created the United States. Thus, sovereignty in our system runs from states up to the Federal government, not the other way around.

Our Framers did not want, nor did they design, a system that would put political parties in competition with one another. There is not a single mention of “Democrats” or “Republicans” anywhere in the Constitution.

Instead, our Framers intended to design a system that would put the states themselves, and the three branches of the Federal government, in competition with one another. The idea was that through that very competition, between the Judiciary and the Presidency, the Congress and the State Legislatures, the Governors and the Judges, two things would happen.

First, freedom would be protected because no single authority would become absolute.

Second, just like competition in the free market economy, competition between states, and between the three branches, would allow the best ideas to bubble to the surface while continuously being refined and improved.

This system, obviously, does not work perfectly. And the institutions that make it possible are under strain. But even in this challenging political environment, we’ve seen the Founder’s vision play out in virtually every sector of American life: healthcare, civil rights, environmental protection, wage and hour laws, tax policy, immigration, you name it.

During my time working for President Obama and in the State Senate, I’ve been exposed to just a few specific examples:

Immigration

President Obama pursued a more open immigration policy, setting up DACA, expanding H1-B visas, and pushing for comprehensive reform in Congress.

Not everyone agreed. Arizona, for example, passed SB 1070, which began in Arizona’s State Senate (SB literally stands for “Senate Bill”). The law allowed Arizona state and county law enforcement to investigate and enforce Federal immigration laws. I was working for President Obama when this Arizona state law was passed.

The Obama Justice Department sued, and ultimately, parts of the Arizona law were deemed unconstitutional because they promoted racial profiling. So a Federal judge ordered an injunction stopping Arizona from enforcing certain parts of the law.

Maricopa County Sheriff Joe Arpaio refused to follow the court’s injunction, and continued to enforce the law anyway. So the Federal judge held him in contempt of court, a felony offense. He was facing potential jail time.

Just recently, President Trump pardoned Sheriff Arpaio for the contempt charge. So in that one case, you have the power of a President, the power of a State Legislature, the power of a Federal judge, and the power of a State Executive all in competition with one another.

Environment

The Environment presents another example. Under President Bush a set of states, led by Massachusetts, through their Attorneys General, sued the EPA for failing to adequately enforce the Clean Air Act. The Supreme Court sided with the states, saying the Bush Administration was required by law to do more. Eventually, this led to the Obama Administration’s Clean Power Plan and the Paris Climate Agreement.

But again, the competition among the various branches and states in our Federal system returned. This time, a different set of state Attorneys General again sued the Federal Government, led by Texas, Oklahoma, and West Virginia, claiming the Obama Administration’s climate policies overstepped the Federal government’s power.

Most recently, we’ve seen another state-federal competition emerge in response to President Trump withdrawing from the Paris Climate Accords.

In a truly unprecedented move, California Governor Jerry Brown flew to China to negotiate climate reduction goals directly with the Chinese Premier. Article II of our Constitution grants the U.S. President authority to negotiate with foreign governments as the Head of State and Commander in Chief. It says nothing about Governors.

So again, we have competition between Governors, Presidents, Federal courts, state Attorney Generals, Congress, and State Legislatures.

This dynamic also leads to new policy innovations on local, state, and national levels.

Tax Policy

On the right, tax policy is a good example. California, believe it or not, was once a conservative bastion, the home of Richard Nixon, Ronald Reagan, and the first shot in the “tax revolts” of the 1970s and 1980s.

In 1978, California passed Proposition 13, which limited the amount that property taxes can be increased. Massachusetts followed in 1980, with Proposition 2 ½, and in 1981, President Reagan secured a landmark tax cut package for the entire country.

Healthcare

We’ve also seen this dynamic with healthcare. In 2006, Massachusetts Governor Mitt Romney signed our universal healthcare bill into law. This bill was then used a blueprint for the Affordable Care Act, which President Obama signed in 2010.

Gay Marriage

Civil rights has worked in similar ways. Gay couples in Massachusetts sued the state in 2001, ultimately securing the right to marry by a decision of the SJC in 2003. But the right was not secured with finality until 2007, after the State Legislature rejected several attempts at repeal. And in 2015, the Supreme Court declared gay marriage legal in all fifty states.

Infrastructure

Even infrastructure, which we typically associate with the Federal government, began with innovations by cities and states. Massachusetts built the nation’s first subway through a public-private partnership. New York built the Erie Canal as a state project. These visionary projects paved the way for President Eisenhower’s Interstate Highway System, and all the economic opportunity Americans saw in the 20th Century.

My hope is that Massachusetts will once again lead the way with a high-speed rail connection between Springfield and Boston. Much harder things have already been accomplished.

So, there is a lot happening in your own backyard: in our cities and states. All of it is important. All of it involves lawyers, legal concepts, and applying your law school education in the service of causes much bigger than yourself.

So please remember, even if there is paralysis and dysfunction in Washington, our country has 50 other state capitals. And it’s in the states where bold new legislative experiments can — and often are — put to the test. Eventually, if they work well, they serve as models for national policy.

In these vexing times, we need leadership, innovation, fresh thinking, and new lawyers eager to make a difference.

Your legal training has given you the power to make that difference.

I hope you will use it.

State Senator Eric P. Lesser is the Senate chairman of the Joint Committee on Economic Development & Emerging Technologies, vice chairman of the Joint Committee on Financial Services, and leads Millennial Outreach for the Massachusetts State Senate. He represents the First Hampden & Hampshire District in Western Massachusetts.