The Framers of the Constitution tried to design a political system that would provide multiple opportunities to constrain the inappropriate use of power. The new government would include separate legislative, executive and judicial branches that would share powers and check each other. The states would also act as a constraint on governmental aggrandizement at the national level.
Since soon after President Trump’s inauguration, Republican leaders in the House and the Senate have taken a supine attitude toward the president. Even though many of Trump’s statements and attitudes, and the policies of his administration, are directly contradictory to principles and ideologies that have been part of the Republican mainstream for years, the Republican leadership, and most of the GOP members, have not exercised their constitutional power to question, much less to check, executive authority. Perhaps this is because they fear Trump supporters among the Republican primary electorate.
With Congress having largely abandoned its constitutional role as a coordinate branch of government sharing powers with, and checking, the administration, the opposition to the Trump Administration is being led, in many ways, by state governments. One of the most important figures in this rediscovery of federalism and reassertion of state power is Xavier Becerra, the attorney general of California. Becerra’s strategy is to use lawsuits filed by California and other states to obtain rulings from the federal judiciary against actions of the other two branches of the federal government.
To date, Becerra has filed more than 30 lawsuits against federal officeholders. These actions challenge a wide range of policies of the Trump Administration and the Republican Congress. Most of the cases involve immigration, health care and environmental policies, but some are on other topics, such as net neutrality, loan forgiveness for students defrauded by fraudulent institutions of higher education, and the addition of a citizenship question to the 2020 census.
Many of these actions have been joined by Democratic attorneys general from other states, including T.J. Donovan in Vermont, but Becerra’s office is the lead plaintiff in most of them. Typically, Becerra’s staff does most of the research for the briefs in these cases, then invites the attorneys general from other states to add material showing the effect of the challenged policies on their states. Most of the California cases are still working their way through the lower federal courts, but some of them could well end up on the docket of the Supreme Court before the November 2020 presidential election.
Many of Becerra’s cases are of great national importance. One involves the Trump Administration’s efforts to roll back vehicle pollution standards established by California and later joined by 13 other states, including Vermont. Since 1970, California has been allowed to establish stricter vehicle air pollution standards than those required by national statutes and regulations. Other states have been allowed to adopt those standards as well. Currently, about 40 percent of the cars and light trucks sold nationally comply with the California standards.
EPA Administrator Scott Pruitt has proposed regulations that would allow manufacturers to produce vehicles that emit more pollutants than under the national standards adopted during the Obama Administration, and would also forbid all states from adopting stricter standards. Becerra argues that states should continue to have the freedom to set their own standards, especially if they can back their decision with scientific research showing that the stricter standards are needed to combat greenhouse gases and climate change.
This case could lead to a major Supreme Court ruling regarding the ability of states to continue basing environmental policy decisions on scientific research, even in the face of an administration whose officials, across a wide range of issues, have decided to rely more on instinct and political judgment than on fact-based analysis.
Eric L. Davis is professor emeritus of political science at Middlebury College.