Eric Davis: States’ rights take on new meaning

A citizen movement called “Yes California” is trying to collect the 585,000 signatures (3 percent of the state’s registered voters) needed to put a referendum question on the November 2018 California ballot to repeal the provision in that state’s constitution that “California is an inseparable part of the United States of America.”
Even if the necessary number of signatures is collected, “Calexit” is unlikely to happen any time soon. The attorney general or the courts could throw out the referendum question, or the voters could reject it. Recent polls indicate only about 30 percent of Californians support the idea. Even if the ballot measure were to pass, it would have to be followed by another referendum on independence — a much more serious decision.
While there have always been a few secessionists in California — as there are a small number of advocates of Vermont independence — the momentum behind “Yes California” has definitely picked up since last November’s election.
Supporters of California independence say President Trump’s policies will be bad for the state. They argue that trade restrictions would severely hurt the state’s economy, its environmental policies are far ahead of much of the nation, even before Trump Administration rollbacks, and Californians have much more progressive views than Americans as a whole on a range of social issues such as reproductive health, immigration, cannabis and civil rights laws. They also note that an independent California would have a GDP larger than all but five nations — the rest of the United States, China, Japan, Germany and the United Kingdom.
If nothing else, the “Calexit” referendum will provoke debate about the powers of the states to oppose policies of the federal government. As such, it will draw increased attention to the Tenth Amendment, a constitutional provision which has been relied on primarily by conservatives over the past half-century, but since November, has received increased attention from liberals and progressives.
The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
In the mid-20th century, the Tenth Amendment was relied on by segregationists in the South to defend Jim Crow laws. For example, Alabama Gov. George Wallace invoked the amendment when he “stood in the schoolhouse door” in 1963 to prevent African-American students from enrolling at the University of Alabama.
Over the past few weeks, Democratic attorneys general in blue states, such as Maura Healey in Massachusetts and Eric Schneiderman in New York, have used the Tenth Amendment to oppose several Trump Administration policies. Healey’s lawsuit against Trump’s Jan. 27 travel ban rests in part on Tenth Amendment grounds. She has also used the amendment as justification for Massachusetts continuing to maintain strict energy and environmental regulations even if Congress and the EPA establish much looser standards.
Vermont’s new attorney general, T.J. Donovan, has joined Healey in a number of motions and briefs. Without mentioning the Tenth Amendment specifically, Gov. Phil Scott has said that Vermont law enforcement officials should not be compelled to share information with Immigration and Customs Enforcement and other federal agencies.
Officials in other states are seriously researching the Tenth Amendment to see how much freedom of action it would give them in resisting Trump Administration policies. California has hired former Obama Administration Attorney General Eric Holder to coordinate the state’s strategy on federal-state legal issues.
During the debates over ratification of the Constitution, federalism, along with the separation of powers, was one of the checks that the Founders argued would prevent the accumulation of too much power in the new national government. In the age of Trump, this argument will be tested again in the months ahead.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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