When a party gets zapped into the minority, party leaders usually become what is known as the “loyal opposition.”
Those were the standards of yesterday.
“This is a classic example of where you stand depends on where you sit.”
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In today’s more polarized environment, the minority party is more likely to engage in all kinds of opposition tactics that test the limits of loyalty to the legislative institutions they work within. Indeed, some policy talks underway within the Democratic Party raise questions about their commitment to the rule of law — especially federal law.
California Democrats, for example, are considering state legislation that would challenge federal actions.
According to the Los Angeles Times, state Sen. Ricardo Lara, a Democrat from Bell Gardens, said he would introduce a bill that would require a federal border wall to first win approval of voters.
The New York Times also reports the California General Assembly wants to raise funds “to provide free legal help to undocumented immigrants during deportation proceedings, offer more assistance in criminal court, and further limit local law enforcement’s cooperation with federal immigration agents.”
In other words, if these laws are passed, California will do everything it can to fight the federal government on immigration enforcement. If that sounds unprecedented, it’s not.
Federal efforts in the 1950s and 1960s to integrate society, to ban segregation laws, and to allow mixed-race marriages led to protests by state governments, usually in the Deep South.
Perhaps the most famous instance of a state government demanding respect from Washington for its laws from was when Alabama Gov. George Wallace, a Democrat, stood in the doorway of Foster Auditorium at the University of Alabama on June 11, 1963. His goal was to stop two black students from registering for classes.
With federal authorities present, Wallace soon relented. Segregation rules and other dubious laws soon fell away throughout the country.
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Wallace was a Democrat. But his bigoted stand helped end the Democrats’ long embrace of states’ rights as the nation embraced the civil rights movement.
Liberal Democrats, such as President Lyndon B. Johnson, who saw states’ rights as an impediment to civil rights and the welfare society, took greater control of the party.
After fifty years of pushing for more federal control of the levers of government, the ascension of President-Elect Donald Trump, a Republican, to the White House has caused Democrats to consider an abrupt about-face. Democrats are vowing to fight enforcement of immigration laws and even disobey the law if Trump cracks down on “sanctuary cities,” where illegal immigrants are protected from deportation.
Republicans and conservatives still embrace federalism, and encourage states to engage in experiments in what the late Justice Louis Brandeis called the “laboratories of democracy” — but conservatives also support the rule of law.
As some Democrats change their tune on states’ rights, their reversal is likely to meet judicial challenges.
Federal courts are not likely to look well upon state rules that try to hamper enforcement of federal laws.
“This could be very interesting because it represents a reversal of [the parties’] positions during the civil rights era,” said John J. Pitney, a professor of political science at Claremont McKenna College in California. “This is a classic example of where you stand depends on where you sit.”
Pitney said the Democrats are likely setting themselves for disappointment, as the Constitution clearly gives the federal government the sole authority on immigration.
But the rallying cry for liberals was sent out on Saturday by — who else? — The New York Times, in an op-ed penned by Jeffrey Rosen, the CEO of the National Constitution Center.
“With no branch of federal power at their disposal during the Trump era, progressives will have to use Jeffersonian means to achieve Jeffersonian ends, convincing some blue and purple states to serve as laboratories of democracy and to protect equal rights and civil liberties for all,” Rosen wrote.
Yet a big problem for these newborn states’ rightists is the fact Trump could make serious progress against illegal immigration simply by enforcing existing laws on deportation.
Still, California and others will try to stonewall Trump’s progress, whether new state laws pass or not. California Gov. Jerry Brown, Los Angeles Mayor Eric Garcetti, and former New Mexico Gov. Bill Richardson have all been making noise about Trump.
And the next California attorney general, Xavier Becerra, has already told Trump, “If you want to take on a forward-leading state that is prepared to defend its rights and interests, then come at us.”
Trump is not likely to be scared away — not with the Constitution on his side.