Federalism In The Trump Era

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Peter Lyn René
April 2, 2020

On Tuesday December 16, 2015, Republican front-runner Donald Trump called for, “A total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” His statement and the position taken by his campaign was in reaction to the mass shooting in San Bernardino, California in which 14 people were killed by suspected ISIS supporters. Though candidate Trump made several policy statements during the 2016 presidential campaign, this particular statement gave some clues as to federalism in a Trump administration. First, Trump era federalism would define policies by which the national government would implement policies that may not find favor with the states, and second; would establish the expectation that states would necessarily accept these policies at the expense of their own rights

President Trump issued Executive Order 13769, known colloquially as a Muslim ban, and was in effect from January 27, 2017 to March 6, 2017, when it was superseded by Executive Order 13780 on March 6, 2017. California, Maryland, Massachusetts, New York and Oregon filed a lawsuit in federal court in the State of Washington. The suit, in part, stated the order will cause severe and immediate harms to the States, including our residents, our colleges and universities, our healthcare providers and our businesses. Hawaii filed a separate suit. With Executive Order 13780 and the reaction of these states, we began to see a framework of federalism of the Trump administration; we also saw the resistance of some states to not readily surrender their rights to the national government. Federalism creates specific powers of the national and state governments, and explicit powers both entities share concurrently. COVID-19 has put in focus President Trump’s federalism as the national government, though leading the efforts to combat this global pandemic, at times appear to pull back the powers of the national government, ceding much of the concurrent powers to the states to fight this pandemic in manners that would not require the vast powers and resources of the national government.

An analysis of the Trump federalism sees the president using executive orders and regulatory changes to turn back several policies of the President Barack Obama administration and advancing his agenda at times, without wide or bipartisan support in Congress. Through several executive orders the Trump administration has grown the power of the executive branch, eclipsing the rise of executive powers observed during the President Reagan administration in the 1980s. The major policy areas that have so far defined the Trump federalism are:

• On climate and the environment, the administration rolled back environmental regulations created by the EPA, from the Clean Power Plan to the Waters of the United States rule.
• On healthcare, the administration has abandoned the defense of the Affordable Care Act in federal court and seeks its repeal.
• On immigration, the administration has adopted a national policy that seeks restore the rule of law and secure the border but through highly debated methods such as separating those seeking asylum in the country from their children, reversing the Deferred Action for Childhood Arrivals (DACA) program.
• On diverting federal funds, for example, from the Department of Defense, to build a border wall.

Federalism in the administration has largely centered on using the powers of the national government to implement policies that have yielded synergies back to the national government at times, at the expense of states’ rights. The administration has not wholly embraced the ideals of federalism, and demonstrated with response to COVID-19. In times of national crisis, federalism presupposes that the states set aside certain rights, temporarily ceding power to the national government to use its Constitution powers and authority, concurrently with the states, to lead the efforts to arrest this virus to provide leadership and bring calm to the nation, without infringing on individual civil liberties.

Federalism is not static: it is ever changing, from administration to administration. As the nation is in crisis, the administration need not necessarily abandon its federalism; rather, it could utilize the vast national powers to readily assist states who have yield power to the national government in a time of crisis. COVID-19 reminds the nation of the fundamental ideals of federalism: the use of concurrent powers. From November 1777 to March 1781, our country was governed by The Articles of Confederation, which seeded the majority of power to the states, and left the national government with little power to create or change policy without unanimous concept of the states. Observing the problems this caused for the nation, including open rebellion, the Constitution was written in its stead, to among many principles, define the rights and powers of the states and national government and powers they would share, jointly. The national government cannot address the crisis brought by this virus on its own; the states do not have the total capacity to find a remedy for this virus on their own. Here, federalism demands cooperation and the use of concurrent powers. Only through cooperation, can federalism create the means to bring relief to a concerned nation.

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Author: Peter Lyn René is a Visiting Professor at the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University.  He is Chairman, and CEO of The Caribbean American Heritage Foundation of Texas, a 501(c)(3) non-profit organization.  He has an extensive background in international Non-Profit Policy, Administration and Management, Information Technology and Project Management.   René is a certified Basic and Advance Family Mediator since 2010, and has mediated dozens of cases in the Justice Courts in Harris County, Texas. René serves on the Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, United States Department of State. He serves on the Executive Committee of the United Nations Council of Organizations.  René can be contacted at [email protected].

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