During the Trump Administration, progressives often found themselves resisting administration initiatives by appealing to constitutional principles traditionally associated with conservatives and libertarians: federalism limits on “commandeering” of state and local governments, separation-of-powers constraints on federal spending and regulation, and traditional civil libertarian approaches to freedom of speech that have come under increasing disfavor on the left.
In his compelling recent book Principles Matter, legal scholar Carlos Ball argues that progressives should stick to these ideas in the future as a matter of principle, not just as temporary litigation strategies deployed against Trump. He makes a strong case that, in some ways, could be even stronger and more far-reaching.
For many decades, constitutional federalism was out of favor on the political left because of its association with opposition to the New Deal and “states’ rights” defenses of racial segregation. Ball recognizes this history, but also points to episodes where federalism has been deployed for causes progressives approve of, such as opposition to the Fugitive Slave Acts in the 19th century and state resistance to federal marijuana prohibition.
As he chronicles, the Trump administration saw a massive upsurge in the use of federalism arguments by the left, most notably in the largely successful effort to resist Trump’s efforts to coerce “sanctuary cities” and states into helping him expel undocumented immigrants, a subject I have written about myself. Here, liberal states and localities relied on anti-commandeering principles pioneered by conservative and libertarian jurists and legal scholars—and opposed by most liberals at the time.
Ball also describes how liberals used federalism to resist Trump on several other fronts, including environmental policy, the War on Drugs, and Trump’s efforts to pressure states into early “reopening” during the Covid-19 pandemic.
He tells a similar story regarding separation of powers. Historically, liberals have often sought to curb presidential power when it comes to national security and foreign policy issues but have often supported, or at least accepted, its growth in the domestic sphere. Ball effectively argues that this stance should be reconsidered in light of the experience of the Trump years. Separation-of-powers restrictions on the executive were crucial to liberal efforts on the sanctuary cities issue (as the executive sought to attach conditions to federal grants that Congress never authorized), efforts to combat Trump’s use of emergency powers to build his border wall, and much else.
Ball urges liberals to endorse more rigorous judicial enforcement of federalism and separation-of-powers constraints in the future, even if doing so will sometimes constrain progressive policy priorities. He does so for three interlocking reasons. First, these limits on federal power–especially executive power–can forestall the great downside risk of an illiberal authoritarian president like Trump subverting constitutional government and inflicting great harm throughout the nation. Preventing this danger, he argues, is more important than making policy gains at the margin.
Second, federalism constraints would enable large parts of the country to pursue progressive policies even in the face of a hostile president or Congress. Progressives are likely to retain control of many key states for a long time to come, and these states’ autonomy is a valuable resource.
Finally, the conventional wisdom that conservatives benefit from a weak federal government and liberals from a strong one is, Ball suggests, in need of revision. Particularly since the rise of ethnonationalism under Trump, conservatives have an expansive agenda for the use of federal power—particularly when it comes to issues like trade, immigration, and law enforcement. Now that the Supreme Court has overruled Roe v. Wade, conservatives might also seek to enact nationwide restrictions on abortion. Such laws might be vulnerable to federalism challenges.
It is notable that Ball is willing to go so far as to advocate a revival of a strong nondelegation doctrine, an idea championed by conservatives such as Supreme Court Justice Neil Gorsuch but anathema to many on the left. But, as Ball explains, broad delegation can easily be exploited by the right for dangerous purposes. In fact, it was used by Trump to impose unprecedented restrictions on immigration during the Covid pandemic.
When it comes to the First Amendment, Ball documents how courts’ broad approach to freedom of speech stymied a variety of President Trump’s efforts to use the power of government to punish his critics. While liberals have never rejected robust judicial protection of freedom of speech in the same way as they have for federalism and domestic uses of executive power, recent trends in liberal legal thought advocate major exceptions to such protections, including arguments for the regulation of “hate speech”, for bans on the spread of “misinformation,” and for restricting the speech of those who supposedly wield excessive influence (such as wealthy individuals and corporations spending money on campaign and issue advocacy).
Ball correctly points out that hate speech laws can just as easily be used to prosecute left-wing speech as that of the right, and in fact have been used that way in jurisdictions that have them. It’s not hard to imagine how such power could be used by the likes of Trump.
Professor Ball might have done well to extend his argument in at least three ways. First, his defense of federalism could be augmented by recognition of the value of giving people opportunities to “vote with their feet.” Policy variation between states and localities enables people to choose those jurisdictions whose policies best suit their needs. Historically, this has been an especially great boon to the poor and disadvantaged, seeking opportunity and escape from oppressive policies. Foot voters have incentives to make better-informed and less-biased decisions than ballot-box voters. By contrast, a one-size-fits-all federal policy makes foot voting far more difficult, as the only way to do it would be to leave the country entirely. The new law—or laws—of abortion will surely bring this point front and center for many progressives.
If progressives believe “blue state” policies are genuinely superior to red ones, they should welcome the opportunity to prove it by attracting foot voters from red jurisdictions. In cases where the former end up actually losing residents to the latter, the loss can be a useful signal that they need to reform some of their policies. For example, there is growing recognition that blue states such as California need to cut back on exclusionary zoning that artificially increases the cost of housing and drives out poor and lower-middle-class residents, thereby also potentially cutting them off from valuable jobs and other opportunities.
Second, Ball could extend his embrace of federalism to encompass limits on the scope of federal regulatory authority under the Commerce Clause. While traditionally championed by liberals, the Supreme Court’s incredibly broad interpretation of this power has licensed somedangerous and destructive policies that the left has good reason to abhor. For example, rulings like Gonzales v. Raich (which reached the absurd conclusion that the power to regulate interstate commerce includes the authority to bar the possession of marijuana that had never crossed state lines or even been sold in any market within a state) underpin the enormously destructive federal War on Drugs, which has caused great harm to minorities and the poor.
It is too often forgotten that the iconic New Deal-era Commerce Clause decision in Wickard v. Filburn—the most expansive Commerce Clause ruling prior to Raich—upheld a law designed to promote a nationwide cartel to increase the price of wheat, thereby raising the price of food in the midst of the Great Depression, when millions of people were already finding it hard to make ends meet and to avoid malnutrition.
Progressives might want to consider whether avoiding such awfulness is worth the price of cutting back on some uses of federal regulatory power they might like. Perhaps the answer is “no.” But it will take a lot to outweigh the massive harm caused by such policies as the War on Drugs and federally sponsored food cartels that victimize the poor.
While most of Ball’s analysis is insightful and on-target, I have a few nits to pick. In the historical sections of the book, he (like many scholars) overstates the extent to which the Lochner-era Court was committed to “laissez-faire” economic policy—in reality, it upheld far more economic regulations than it struck down—and overstates the progressive benefits of the New Deal-era expansion of federal power. Wickard v. Filburn is just one of many examples where the latter disadvantaged rather than helped the poor.
A more general problem is that Ball avoids specifying exactly how tight limits on federal power or executive authority should be, or what constitutional theories should be used to generate answers to these questions. This potentially leaves him open to accusations of a “fair-weather” approach to federalism and separation of powers. Both, of course, are common problems on both sides of the political spectrum. Ball generates the beginnings of a response to this critique by emphasizing his willingness to adhere to the limits he advocates even in cases where they impinge on progressive priorities, and gives a number of examples. But a more systematic approach to this issue might help.
A related issue is that the political valence of federalism and separation of powers has shifted at times in the past, and could potentially shift again. Recent left-liberal reliance on these principles reflects an era where federalism is no longer associated with bigotry, and national power no longer associated with tolerance and equality, to anything like the same extent as was true at the height of the Civil Rights movement. The political impact of executive power has also shifted over time. Conservatives were more hostile to executive authority and liberals more supportive during the post-New Deal era, when the Democratic Party controlled the White House most of the time and that dominance seemed likely to continue. While Ball calls for adherence to federalism and separation-of-powers constraints as a matter of principle, it is not entirely clear to what extent this call is shaped by the conditions of the present political moment.
Despite such caveats, Principles Matter is an important contribution to the debate over constitutional limits on government power in the wake of Trump. Scholars, policymakers, and legal commentators across the political spectrum have much to learn from it.
