A Strange Type of Federalism Awaits Us in Republicans’ Upcoming One-Party Autocracy

Posted in: Politics

When Republicans have retaken both houses of Congress and have installed either Donald Trump or his anointed successor in the White House in January 2025, what will they do next?

A pedestrian column addressing that question might promise merely to be another in the long line of political prognostications about one party or the other’s future plans, if that party should be so fortunate as to win elections and take power legitimately. What would Democrats or Republicans do about environmental policy? Banking reform? Taxes? Foreign terrorism? Domestic terrorism? That such opinion columns are so familiar does not make them uninteresting. If well written and insightful, such offerings by political commentators can be useful both for voters and other commentators.

This, however, is not that kind of opinion column. As I wrote on Verdict this past Monday, the United States is now a “Dead Democracy Walking.” Between gerrymandering, extreme voter suppression laws, and especially their corruption of once-neutral election counting and certification processes, Republicans will retake Congress in full by 2024; and even if their presidential candidate were to lose that year’s election, they will have the January 6 congressional certification vote as a backstop to allow them to steal the White House.

The necessary pieces of that dystopian process are already in place. Note that, in the first sentence of this column, I did not say “if” but “when,” and I said “installed” rather than “succeeded in getting their presidential candidate elected.” And Republicans are not stopping there, as their strong-arming of an extreme voter suppression bill in Texas this week shows.

As I wrote in “Dead Democracy Walking,” the job of policy and political commentators must now change to reflect the new reality of Republicans’ full corruption of our political process. Once back in power, Republicans at both the federal and state levels will continue to change the political system to guarantee the continuation of what will be nothing less than a one-party autocracy. Democrats will continue to exist, and elections will still be held, but the system will have been hollowed out, and the trappings of democracy will be for show and nothing more.

That means that it no longer makes sense to, say, compare Democrats’ versus Republicans’ positions on immigration. Only one party will be in power, so we need to think about what that one party will do when it has effectively insulated itself from competition—and thus accountability.

What Will Life in an Autocracy Be Like?

Early last year, I wrote a pair of columns (here and here) in which I began to think through what a post-constitutional America might look like. I did so in the context of my prediction that Trump would refuse to leave the White House after losing the 2020 election. In the first of those columns, I wrote that if Trump’s efforts were stymied, we could “have what amounts to a civil war (quite possibly one in which the word war is not rhetorical),” as Trump pulled out the stops to stay in power.

Although, as we all witnessed in horror, violence and death descended on the U.S. Capitol in January of this year, Trump did in fact leave office. Everything that has happened since then, however, leads to our current situation as I described it above, which in essence means that the Trumpian coup was temporarily repelled but will ultimately succeed. And now we are back to asking what governance will look like when Republicans are no longer in danger of losing power.

In the first of those early 2020 columns, I discussed how Republicans will attack public-sector workers (especially whistleblowers), and in the second, I explained how Republican-dominated courts will engage in what I described as “legalistic lawlessness.” What else is there to say about how governance and society will change in a one-party autocracy?

One ripe area for inquiry is federalism, the distribution and limitation of powers among local, state, and federal government actors. Conservatives have long claimed to be in favor of “states’ rights”—not merely as a fig leaf (an almost completely transparent one, to be sure) for maintaining slavery in this country, but long after the Civil War, as a way to justify unlawful moves like Southern states’ “massive resistance” to federal efforts to enforce civil rights laws. When Republicans have gained permanent control of the federal government, however, how will they view states’ rights?

When Republicans Control All the Power, What Good Are States?

Republicans who espouse federalism as an anti-federal government position have long claimed that theirs is a principled position based on hallowed ideas of decentralized power. Conservative activists even named what would become their most influential legal organization with the word “federalist.” Take that, you big-government dictators in Washington!

Of course, Republicans’ claims to be intellectually consistent federalists (even by their own evolving definitions of the concept) were always difficult to take seriously. They were more than happy to use federal levers to undo things at sub-federal levels that they did not like, including programs of affirmative action that had been passed by democratically elected state and local governments. And in areas such as commandeering, hypocrisy is the order of the day from conservative justices.

And looking again at the pre-Civil War debates, of course, there was the purported belief in states’ rights sitting awkwardly next to the federal Fugitive Slave Act, which required free states to return slaveowners’ “property” to the states from which they had escaped—and which “made the federal government responsible for finding, returning, and trying escaped slaves.” Keeping the federal governments’ powers limited, and respecting each state’s laws? Not so much.

Even without a constitutional overlay, the Republicans’ position has long been that there is a practical and moral reason to support their notions of federalism. Local control, it is argued, is better than control by distant bureaucrats. “Why should someone in Washington, D.C. be able to tell me what do to in Oklahoma?!” Local control supposedly means that we respect decisionmakers as far down the food chain as possible.

Except that, of course, Republicans and conservatives (who used to include Southern Democrats) never showed any respect for local control when the results did not suit them. For example, unlike most states, Texas has long taken decisions about textbook adoptions away from local school districts. Why should someone sitting in Austin (but hailing from Amarillo) be able to tell people in El Paso what to do? Because those people in state offices in Austin are Republicans, of course.

Lately, Florida’s Republican governor has gained national infamy for using the power of his statewide office to prevent local school districts from deciding how to respond to the ravages of the COVID-19 pandemic. My local school district, in Alachua County, is one of those that has defied the order and is now being financially punished by the mini-Trump in the governor’s mansion. Why should someone sitting in Tallahassee be able to tell school administrators in Gainesville what to do?

As annoying and utterly shameless as these examples of hypocrisy are, the larger issue is whether Republicans will continue to allow any state to do anything that they do not like when they hold all the power in Washington—and when their power cannot be challenged.

Texas made news recently by passing an exceptionally pernicious law that empowers private vigilantes to take action against abortion providers. That law is blatantly unconstitutional, but since the Supreme Court has refused to grant an emergency stay during court challenges, the law is now in effect.

As bad as that is, it could become far worse. Ever since Roe v. Wade recognized women’s reproductive rights, the self-styled federalist’s claim has been that this should be a state-by-state issue. If New York and California want to allow abortions within their borders, so be it; but Texas and Alabama should be permitted to go their own way.

Even before Republicans were able to enact a one-party autocracy, there was already serious doubt about whether they would stop merely at “returning abortion to the states.” After all, why would people who think that abortion is murder allow some states to legalize infanticide? Certainly, even if Republicans were to allow some states to keep abortion legal, an equivalent of the Fugitive Slave Act would surely be passed to prevent women from crossing state borders to obtain abortions.

Republicans also want to trample on states’ rights by forcing some states to respect other states’ open-carry gun laws, meaning that a state that wants to prevent people from brandishing guns in public would be prohibited from controlling what happens inside its own borders.

Why Have State Governments at All?

But all of that could be only the tip of the iceberg. Whereas Republicans might well decide to allow Democratic majorities in Rhode Island and Oregon to exercise power, only to be slapped down whenever Republicans in Washington, D.C., feel the urge to keep them in line, it might even be possible that the states that continue to elect Democrats could be turned into non-states. This is admittedly an extreme idea, but it is not qualitatively different from what Republicans have done in other areas.

How would this work? In a Verdict column two days ago, I explained why it would—well, should—be impossible under the Constitution for the coming Republican autocracy to reverse statehood for Washington, D.C., if Democrats are able to make it happen before losing power. I noted there that Section 3 of Article IV provides some guidance about the creation of new states, but it is silent about taking statehood away from any state that has already come into existence.

I then argued that the Constitution nonetheless prevented a future Congress from turning a state into a non-state, because doing so would make it possible for Congress to violate the affirmative requirements of Section 3 (such as the provisions regarding splitting up an existing state into more than one state) simply by turning a state into a non-state and then immediately turning that non-state into anything that Congress wished to create.

The point of my analysis was to say that of course this would be absurd. It is a classic form-versus-substance question, in which any court worth its salt would see through the sham and prevent Congress from inventing a process to de-statify states (to coin a term) as a way to sidestep the Constitution.

As an after-thought, however, I then noted that the future Republican autocratic Congress could turn states into non-states, not to turn them into new states with different configurations but simply to relegate them to a permanent non-state purgatory. This was, I thought while I typed the words, a perfect example of reductio ab absurdum—a logical endpoint so silly that it would make anyone understand that the premise of the analysis must be wrong. In essence, I argued: Congress can’t turn states into non-states. Otherwise, Republicans would simply de-statify disobedient states. How crazy would that be?

But Republicans have in recent years shown that what once looked to be beyond the pale were merely constitutional gaps that had never been exploited. The most prominent example of this was Republican Senators’ decision in 2016 to flatly refuse to consider President Obama’s nomination of now-Attorney General Merrick Garland to the Supreme Court.

When then-Majority Leader Mitch McConnell first floated that idea, the universal response was that it was simply crazy. McConnell (backed by every member of his caucus) responded, in effect: “Show me where in the Constitution I am required to schedule a vote on a Supreme Court nominee? It isn’t there. We ‘advise and consent,’ and we have chosen to carry out that power without a vote.” When others scoffed that this would lead to absurdity, giving the Senate the ability to allow seats to be held open forever, even as further openings accumulate—and of course that must be unconstitutional—Republicans simply smiled. Indeed, several of them announced that if Hillary Clinton had won in 2016, they would categorically refuse to seat any of her Supreme Court nominees, holding seats open until she left office.

In the end, then, what looks to most people like a perfect example of reductio ad absurdum looks to Republicans like an inviting opportunity. If the Constitution does not directly prevent them from turning existing states into non-states, then why would they not try? (This does not even implicate the galling situations in which Republican-appointed justices simply read nonexistent text into the Constitution, such as the broad sovereign immunity decisions handed down during the Rehnquist Court.) De-statification would not be an attempt to frustrate or sidestep another constitutional provision, but rather an unalloyed power grab.

Do I think that Republicans would go this far—actually to take the steps necessary to turn Massachusetts, Maryland, and other blue states into constitutional non-entities? In fact I do not, but only because they will be able to achieve the same ends without doing something that would appear to be so extreme.

I am, however, confident that—just as Republican senators proved during Donald Trump’s two impeachment trials that they have no fundamental respect for the federal government’s separation of powers, at least when real power is at stake—they will soon forget about any respect for federalism or local control. Their commitment to states’ rights was always a pose.

And if push ever does come to shove, where the only way to achieve their purposes is to turn states into non-states, Republicans’ increasingly radical track record gives us no reason to think that they will hesitate.

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