Fight over Texas law underlines a battle between America and its states
The confrontation between Texas and the federal government over whether the state can enforce its own immigration policies reflects a broader and recurring feature of American politics: A number of hot-button issues have become proxy fights over who gets to decide.
During the Trump administration, Democratic-led states like California and blue cities like New York waged legal battles over their right to pass sanctuary laws to protect migrants. Now the conflict over whether Texas can arrest and deport migrants is just part of a larger campaign that Red states have directed against the Biden administration.
A coalition of Republican attorneys general has also gone to court to thwart administration efforts to regulate methane emissions from oil and gas drilling, to block a program that allows humanitarian access to migrants from specific countries, and to stop an attempt to crack down on the refugee crisis. including weapon accessories.
The balance of power between the national government and states has been a source of tension in the United States since its founding, leading to the Civil War. But in the 21st century, as partisan polarization has increased, it has morphed into a new dynamic, with states controlled by the party opposing the president regularly pushing the boundaries.
The political issues vary—and include topics like abortion, gun control, gay marriage, and even the legalization of marijuana—but the larger pattern is clear: Whenever one party gains control of the central government, the other party uses its control several states try to oppose national policies.
“We are seeing things we have never seen in modern times,” said Heather K. Gerken, dean of Yale Law School, who has written about contemporary federalism. “It’s really amazing what kind of proxy war is happening. It’s all because the vicious partisanship that has long been a hallmark of Washington has now reached the states.”
A clause in the Constitution says that federal statutes are supreme, and the traditional view is that where federal and state law conflicts, federal law prevails. At the same time, the Constitution only grants certain powers to the federal government and reserves the rest to states. In practice, the powers of both levels often overlap.
As a result, the lines aren’t always clear, says Jessica Bulman-Pozen, a Columbia law professor who has written about what she’partisan federalism.” That ambiguity, she said, combined with the increasing nationalization of politics, has led to parties using control of states to oppose presidents of the other party.
“We have a lot of political fights that are channeled through this federalist structure, where if you have a Democratic president, Republican-led states try to pick fights with the presidency and the same with Democratic states during Republican administrations,” Ms. Bulman. Pozen said. “And certain people’s views on state power and federalism will often change with different governments and different exercises of power.”
Political scientists say the growing partisan gridlock that has gripped Washington over the past two decades has created conditions in which states conveniently controlled by one party or the other, such as Texas and California, can strike out on their own .
Liberal states like California and Democratic-led cities have adopted gun restrictions, car emissions standards that are stricter than national standards and sanctuary city policies to limit how local law enforcement can work with federal immigration agents. Meanwhile, Republican states have passed strict abortion bans and declared themselves Second Amendment sanctuaries.
“The states have become more and more powerful,” says Lara M. Brown, political scientist and author. “Most of us live under state laws more than federal laws. Texans are happy to be able to walk around with their guns. And Californians are not happy people.”
Akhil Reed Amar, a professor at Yale Law School, said the arguments about federalism pit two ideals against each other. One is that everyone will be happier if different parts of the country can govern themselves, as long as people can move to the places they agree with. The other is that to be a viable country with an integrated economy, certain basic rules and uniform national rights are needed.
History shows that there are limits to how states can govern in different ways, in part because what happens in one state can impact another.
A judge on the federal appeals panel weighing Texas immigration law took a closer look at that question Wednesday, asking whether the state could arrest an undocumented migrant who entered the state not from Mexico but from Arizona. “Maybe?” responded Aaron L. Nielson, the attorney general of Texas.
Just as it proved untenable for the nation to continue in the 19th century, as some states allowed slavery and others outlawed it — with fights over issues like what happened if an enslaved person was taken or fled to a free state — the political reality is that people are trying to use national control to impose a uniform vision.
For nearly fifty years, the Supreme Court’s landmark ruling in Roe v. Wade meant that states could not ban abortion. Then, after a conservative majority reversed that decision in 2022, many Republican-controlled states imposed sharp restrictions on the procedure, while Democratic-controlled states did not.
But the issue remains volatile. Disputes have arisen over whether anti-abortion states can criminalize traveling elsewhere to terminate pregnancies and whether states that support abortion rights can send abortion pills to women living in states where the procedure is banned. And both supporters and opponents of abortion have passed national legislation to impose their respective ideals on the entire country.
The battle for uniformity and diversity does not always take place in the courtroom. Despite federal laws banning marijuana, Washington has largely allowed more than thirty states to legalize and regulate medical or recreational cannabis, for example.
But very often these fights end in lawsuits, with the final resolution resting in the hands of the Supreme Court. Because the court has tilted increasingly to the right over President Donald J. Trump’s three appointments, Republicans have an advantage.
For example, in 2015, the court voted five to four to strike down laws in conservative-leaning states that limited marriage to heterosexual couples, allowing same-sex couples to marry in all fifty states. In 2022, the court’s broader conservative majority — in addition to overturning Roe v. Wade — voted 6-3 to strike down laws in New York and other liberal-leaning states that placed strict limits on carrying guns in the public.
Yet the deeper roots of the conflict lie in the structure of the U.S. government, which from its inception has placed the powers of the national government at odds with the states.
“You see it over and over again,” said David I. Levine, a professor at the University of California College of the Law, San Francisco, who has followed California’s conflicts with the federal government during the Trump administration. “The Civil War. Civil rights, school integration. It’s built into the system.”