The Rising Effectiveness of Progressive Federalism

By Dennis Herrera
[Originally published on the American Constitution Society blog, May 24, 2017]

When Ronald Reagan used his 1983 State of the Union Address to foreshadow a sweeping proposal to devolve vast powers from the federal government back to states and localities, he described his New Federalism initiative as an effort “to restore to states and local governments their roles as dynamic laboratories of change in a creative society.”

Liberal critics at the time regarded the New Federalism as a thin veiling for a full-scale federal retreat from progressive social policy — which, of course, it was. In subsequent years, as successive Congresses grappled with mounting budget deficits and as the federal bench grew increasingly conservative, Reagan’s efforts to return power to local governments would indeed take hold among his presidency’s most enduring legacies.

Today, progressive state and local governments should embrace the principles behind New Federalism as a way to push back against a federal administration that threatens constitutional protections and many of the values these localities hold. In the few months that President Donald Trump has been in office, state and local governments have successfully thwarted his attempts to carry out some of his most misguided initiatives.

When President Trump issued an executive order that sought to strip federal funding from sanctuary jurisdictions, San Francisco and other local governments acted swiftly to fight back. My office filed the first lawsuit in the nation to challenge the Executive Order, and the County of Santa Clara and other local jurisdictions soon followed us. In April, Federal Judge William Orrick issued a nationwide preliminary injunction that temporarily halted enforcement of the president’s executive order, recognizing the Executive Order likely violates the Separation of Powers, the Spending Clause, the Tenth Amendment, and other constitutional provisions.

State and local governments have also been at the forefront of litigation challenging the travel ban Executive Orders. In January, Washington state Attorney General Bob Ferguson filed a federal lawsuit to block the president’s executive order that temporarily barred citizens from seven Muslim-majority countries — as well as all refugees — from entering the United States. Federal Judge James Robart in Seattle blocked the travel ban from going into effect in February, a ruling that was upheld by the 9th U.S. Circuit Court of Appeals. Stymied, President Trump rolled out a new executive order in March that was largely a facsimile of his first travel ban, and the state of Hawaii successfully blocked it.

This “New” New Federalism works, and San Francisco has been doing it for some time. In many ways, this work is an extension of my office’s tradition of affirmative litigation in the public interest. I have brought cases to protect taxpayers, consumers and civil liberties, and I have learned that sometimes the greatest threat to civil liberties is not big business, but other government actors. This is why San Francisco intervened in 2004 as the nation’s only municipality in seeking to strike down the Bush administration’s federal ban on late-term abortion, successfully asserting a civic interest on behalf of the San Francisco Department of Public Health and San Francisco General Hospital as the public health-care providers of last resort for indigent women.

San Francisco also filed the first ever government lawsuit to challenge the constitutionality of state marriage laws that discriminated against gay and lesbian couples and litigated marriage equality for over a decade until the Supreme Court recognized that the Constitution guarantees same sex couples the right to marry. While this may not at first blush seem to be a victory for federalism, it was the movement towards marriage equality in the states that laid the foundation for this constitutional ruling.

It is perhaps telling that Reagan’s vision of state and local governments “as dynamic laboratories of change” harks back to an earlier principle observed by Supreme Court Justice Louis D. Brandeis. Brandeis was known as “the People’s Lawyer” and fought against monopolies and powerful corporations. In his famous 1932 dissent in New State Ice Co. v. Liebmann, Brandeis wrote: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. … If we would guide by the light of reason, we must let our minds be bold.”

We may be certain that tomorrow’s national progress will owe much to today’s experiments by state and local governments. Whether it is viewed as resistance to this administration’s agenda or as a way to advance progressive policies, America has much to gain if we let our minds be bold.