Susan Estrich - Federalism anyone?

  • Published in Columns

For most of the 20th century, "federalism" was the cry of conservatives battling growing federal power that came, constitutionally at least, at the expense of the states. So their response to Franklin Delano Roosevelt's New Deal was not that children should work endless hours in unsafe conditions but that the federal government had no business legislating programs and laws to end child labor and establish minimum standards for work, labor and hour regulation and the rest. It was only after President Roosevelt threatened to pack the Supreme Court that the conservatives on the court finally gave in. Likewise, during the civil rights battles of the 1950s and 1960s, the opponents of civil rights in Congress and in the governors' mansions did not come right out and say that black law students, college students and schoolchildren should attend schools that were both separate and terrible. They claimed they were protecting "states' rights."

And then there was the "New Federalism" advocated by President Ronald Reagan in 1981. For Reagan, it meant cutting federal spending (the main purpose) and transferring responsibilities (mostly responsibilities to the poor and to children) back to the states — who of course couldn't afford to fulfill them. It wasn't really about federalism any more than opposition to the New Deal or to civil rights was. Strom Thurmond, the South Carolina senator who led the fight against civil rights, didn't believe that it should be his home state that provided equality to black schoolchildren. President Reagan's team was committed to reducing the size of government — and reducing its role in helping the poor and the needy — at both the state and federal level.

Justice Louis Brandeis famously wrote of our federal system that the division of powers between the federal government — with its "limited" powers specifically delineated by the Constitution — and the state governments, which continue to possess all powers not given to the federal government, would allow the states to "serve as a laboratory" and "try novel social and economic experiments without risk to the rest of the country."

It took a while, but liberals finally got the idea. Justice William Brennan wrote a famous article in the Harvard Law Review during the dark days (for liberals) of Warren Burger's tenure as chief justice. Brennan called on states to use their own constitutions to protect their citizens where the federal government refused to. Activists on various issues, including the environment and civil rights, increasingly looked to the states to act where the federal government would not. Federalism.

Cannabis, anyone?

In California, as in a growing number of states, the voters last year approved the recreational use of marijuana — complete with a whopping 15 percent (or higher) tax. Nationally, a majority of Americans support legalization. State after state has approved initiatives allowing first for medical marijuana and, more recently, for recreational use. States' rights.

So why did the Trump administration announce this week that they intend to ignore the will of the voters, trample the rights of the states and enforce federal marijuana laws that are totally and completely inconsistent with everything states such as California are trying to do?

Federal prosecutors are not going to be out there prosecuting recreational users, Trump's posturing notwithstanding. Juries are composed of the very same people who voted to legalize recreational use. Try finding one that would convict. A dealer who imports and sells to kids across state lines is another thing; Trump didn't need to make an announcement to give notice to them that federal law enforcement was still interested. All Trump accomplished this week was to prove the blatant hypocrisy that has long plagued the concept of federalism. And tick off a whole lot of people in a whole lot of states.

(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)