Liberals are not in the habit of expressing gratitude for the five conservative justices on the U.S. Supreme Court, especially since one of them, Justice Neil Gorsuch, presides where some liberals believe President Obama’s nominee should rightly be.
But liberals should be grateful, at least this week, in the wake of a ruling that struck down a federal anti-gambling law because the decision strengthens blue-state resistance to President Donald Trump. Moreover, it might deepen appreciation for something liberals historically dislike: federalism and the doctrine of state’s rights.
Murphy v. NCAA invalidates a provision of the federal Professional and Amateur Sports Protection Act the court said violates the anti-commandeering principle of the Tenth Amendment. Justice Samuel Alito, writing for the majority, said it infringes on “the basic principle … that Congress cannot issue direct orders to state legislatures.”
The immediate result of the ruling will be states legalizing sports betting and reaping a windfall. (That’s the case here in Connecticut; within hours of hearing the news, Gov. Dannel Malloy called for a special session of the General Assembly.) But Murphy is likely to have long-term implications beyond gambling and state fiscal budgets.
As the GOP evolves from a party of limited government to one of big-g government, at least while it controls the levers of federal power, this new ruling might create conditions in which state capitals, not the nation’s capital, will become the epicenters of progressive politics. That trend is already underway. But Murphy may accelerate it.
Liberalism is a big tent covering groups and subgroups, some with competing interests, but I’ll focus on two: immigration and gun violence. Since taking office, the president and U.S. Attorney General Jeff Sessions have taken aim at so-called sanctuary cities and states, trying to compel them either to enforce federal immigration law or comply without question to the demands of immigration authorities.
Trump vowed to block grant money from sanctuary cities if they balked. Such threats were on thin constitutional ice. In its 2012 ruling upholding the Affordable Care Act, the Supreme Court struck down a provision of the law that would withhold money to states should they refuse to expand Medicaid. Chief Justice John Roberts said such threats to state budgets were like “holding a gun to the head.” A federal appeals judge in Chicago said last month that the Trump administration cannot block grant money from cities that don’t go along with its immigration enforcement priorities.
This new ruling about sports gambling empowers states more. The Tenth Amendment—often called the “state’s rights” amendment— says that powers not specifically given to the federal government belong to the states. The ACLU’s Omar Jadwat said Murphy “reiterates that the real thrust of the 10th Amendment and the principles of law in this area is that the federal government can’t tell the states or cities how to legislate.”
That’s key in the battle over gun violence. In December, the House of Representatives passed a bill requiring states to recognize concealed carry gun permits from other states. In other words, people allowed to openly carry semi-automatic rifles in Utah would be allowed to carry openly in Connecticut, where possession is banned.
The NRA said so-called “concealed carry reciprocity” was its “highest legislative priority.” The House bill has languished in the Senate since December, but given this new ruling, in which the high court stridently defended the anti-commandeering principle, the NRA’s vision of national reciprocity seems like a pipe dream. Indeed, progressives now have a green light to demand expanded gun-control measures.
All of which highlights the love-hate relationship liberals have with federalism, a system of government in which power is decentralized. When it comes to human rights, federalism is an obstacle, because the federal government can’t force states to do the right thing — for instance, by expanding Medicaid. Indeed, as we are seeing in Michigan, it empowers states to do the wrong thing, like passing laws shielding white residents from federal Medicaid work requirements, but not black residents.
But federalism is dynamic. It has changed and is likely to change again. Consider that Senate Majority Leader Mitch McConnell’s top priority now is larding the federal judiciary with anyone able to fog a mirror and legislate conservative principles from the bench. It is not hard to imagine a long-term situation in which progressive politics can’t break through to the national level, and must turn back to the states.
This could mean greater national levels of inequity and injustice, as all residents of some states enjoy expanded Medicaid (for instance) while only some residents of other states do the same. But that would serve as a reminder to progressive activists that all roads do not go through Washington. The old saying holds true: all politics is local.
John Stoehr is a fellow at the Yale Journalism Initiative, an associate fellow at Yale’s Ezra Stiles College, a contributing writer for the Washington Monthly and a columnist for the New Haven Register.