With Republicans in control of the White House and both houses of Congress, Democrats may find refuge in the use of states’ rights and even local defiance of federal policy on the city level.

Heather Gerkin, the J. Skelly Wright Professor of Law at Yale Law School writes:

“Progressives have long been skeptical of federalism, with the role that “states’ rights” played in the resistance to the civil rights act and desegregation typically featuring prominently in their criticism…That is a mistake. Federalism doesn’t have a political valence. These days it’s an extraordinarily powerful weapon in politics for the left and the right, and it doesn’t have to be your father’s (or grandfather’s) federalism.”

Relinquishing the tactics of nullification and local resistance to federal policies they disagree with is a mistake Democrats have vocally signaled that they are not going to make.

Major metropolitan governments are the only level of US government that Democrats control today with Democratic governors outnumbered by Republican governors 31 to 19, and after losing the White House and failing to secure either chamber of Congress.

Of America’s 20 biggest cities, however, all but three are locked up by Democratic mayors and closely aligned blue electorates comprising 32 million Americans. And they have vowed to actively defy Trump. Immigration is a major example:

“…in Los Angeles, where nearly half of the city’s residents are Latino, Mayor Eric Garcetti has vowed to do everything he can to fight widespread deportations of illegal immigrants.In New York, with a large and diverse Latino population, Mayor Bill de Blasio has pledged not to cooperate with immigration agents. And Mayor Rahm Emanuel of Chicago has declared that it ‘will always be a sanctuary city.’Across the nation, officials in sanctuary cities are gearing up to oppose President-elect Donald J. Trump if he follows through on a campaign promise to deport millions of illegal immigrants.”

And Democratic mayors in major US cities are promising to ignore federal policy and chart their own path on policing issues like drug prohibition enforcement, stop-and-frisk, and sentencing; climate change and renewable energy; healthcare and entitlement programs; and civil rights issues for LGBT.

A cynical observation:

In the never-ending fight / dance along the partisan line dividing the Republican and Democratic brands, each side adopts the tactics suited to its position at the moment, usually accompanied by a spectacular display of mass-amnesia on the part of the fierce partisans who always give their unqualified support to their party.

So for example, when one party controls the Senate, partisans in their fold denounce the filibuster — a tactic that hampers and delays the party in power — as evil and in absolute terms: filibusters have always been evil and they always will be. (Cue George Orwell: “We’ve always been at war with Eurasia.”)

Of course the outnumbered party hails the filibuster as a righteous tool of constitutional government in no less absolute terms and with just as straight a face. Of course, the next time the numbers in the Senate chamber flip, suddenly each side not only sees the other’s point of view on the filibuster, they also seem to forget that they ever held the opposite position.

It seems that willful amnesia is the grease that oils the machine of partisan dysfunction.

So it is only natural that Democrats, who generally hissed and booed any mention of states’ rights or nullification during the Clinton and Obama years — characterizing their supporters as racists, radicals, and right-wing militia types — are rediscovering the usefulness of federalism in 2017. Also prepare to hear more Republicans argue against local resistance to Trump in terms that enshrine the primacy of the federal government in the mantle of authority, law, and order.

An optimistic observation:

While it is frustrating that Democrats will most likely forget this time in history as soon as the next president has a D next to his or her name, their last stand against Donald Trump in America’s statehouses and major metropolitan city halls is the manifest intention of the Framers' federalist design of government.

What do you think about nullification and its role in American governance? Share your thoughts in the comment section below, and as always, stay independent.

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