The real power of states

Andy Craig, MSNBC -  Liberals are quickly learning the much maligned framework of ‘states’ rights’ isn’t always bad.

This isn’t entirely new. State attorneys general have been at the forefront of legal challenges to federal policies, in both parties, depending on who is in the White House. Since Jan. 20, Democratic attorneys general have been moving rapidly to file lawsuits blocking funding cuts tied to Trump’s demands, attempts to hijack state education systems, and to block the executive order attacking birthright citizenship. What’s changed compared to his past administration is the coherence and assertiveness of these efforts. With all three branches of the federal government under Trump-friendly Republican control, albeit with the courts less than the other two, the states are the one remaining bastion of constitutional authority able to push back.

The legal footing for this resistance rests on firm constitutional ground. The 10th Amendment reserves powers not delegated to the federal government to the states or the people. More specifically, the anti-commandeering doctrine — affirmed in Supreme Court decisions like Printz v. United States and Murphy v. NCAA — makes clear that the federal government cannot compel states to administer or enforce federal regulatory programs. The Supreme Court’s ruling in National Federation of Independent Business v. Sebelius, striking down parts of the Affordable Care Act, also affirmed the principle that conditions attached to federal funding can’t be “coercive” on the states.

The federal government can enforce its own laws but it can’t force states to help or to adopt matching laws of their own. Most famously, states have used this in the case of marijuana legalization, dropping state prohibitions even while the federal ban is nominally intact. As a practical matter, the federal government doesn’t have the resources to crack down on itself