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Liberals Plan to Battle Trump with a Page from the Conservative Playbook

The opposition response to Republican control of Congress and the White House is one they'll recognize: federalism.

With Republicans in control of the White House, Congress, and (soon) the Supreme Court, progressive groups are considering ripping a page from the conservative playbook to advance and defend their priorities—workers' rights, gun safety, immigrant protections, environmentalism, and more—over the next four years.

That page? Federalism, the idea that state and local governments can and should pursue policies independent of (and even in conflict with) the federal government's priorities.

In terms of ideology, federalism is most often embraced by libertarians and conservatives, who love to cite the Tenth Amendment's granting to states any powers not explicitly given to the feds. These people are opposed to big government, and no government is bigger than the one looming in Washington, DC. 

A common critique of federalism is that no matter how good local control of laws sounds in theory, in practice "states rights" has been code for opposition to civil rights laws that protect the right of minorities. "Many [liberals] think 'federalism' is just a code word for letting racists be racist," Yale law professor Heather K Gerken observed in 2012.

So why is federalism increasingly attractive to Democrats and their allies? Well, with DC's rightward turn, allowing states (or cities) to go their own way suddenly seems like a good idea.

"Cities are the places where we live where we work where we play," says Nikki Fortunato Bas, executive director of the Partnership for Working Families. That means local and state governments "are the places that we can resist the most regressive and harmful policies."

"It's all about means to the end," says Kevin Gutzman, chair of the history department at Western Connecticut State University and author of The Politically Incorrect Guide to the Constitution.

Liberals have dipped their toes into federalist waters before. In the 1980s,  Minnesota governor Rudy Perpich sued to prevent deployment of his state's National Guard to Honduras; the Supreme Court ruled that the feds had control over guard units.

More recently, progressives have pursued their priorities at the state and local levels, when Congress proved too gridlocked to allow meaningful legislation to pass. The "Fight for $15" minimum-wage campaign has mainly taken place in major cities. It's also mainly urban areas where local officials have resisted fully cooperating with federal immigration authorities, creating so-called sanctuary cities. And the fight over marijuana legalization has taken place at the state level, with the federal government—so far—displaying a light touch in states that choose a permissive path.

Progressives have also taken their campaigns directly to voters at the state level: In November, voters in deep-red states like Arizona were joined by voters in Colorado, Maine, and Washington in approving minimum-wage hikes. Those sorts of populist, worker-friendly policies—which few in the GOP seem interested in pursuing—could counter some of the ruthlessly pro-business goals the Trump administration may pursue.

"Washington appears poised to slam the brakes on worker protections Obama has strengthened in the past eight years," says Paul K. Sonn, general counsel and program director for the National Employment Law Project, a labor rights group. "Progressives are likely to respond by going local, where there's more latitude to make progress."

Republicans don't just control the federal government; they're dominant in most state governments these days, too.

"The landscape is complicated, but there's deep grassroots support to challenge inequality and improve job conditions," Sonn says. "Even in the red states, there's a lot of grassroots energy at the local level."

The defense of local prerogatives may find its strongest expression in California, where state officials have hired former US attorney general Eric Holder to fight Trump administration initiatives in court, just as conservative state attorneys general sued the Obama administration over the Affordable Care Act and his immigration policies. "It shows that we're very serious in protecting the values of the people of California against any attempt to undermine the policies that have made us the fifth-largest economy in the world," State Senate leader Kevin De León told the Los Angeles Times last week.

But states are at a disadvantage when they come into a conflict with Washington. Trump ran for president promising to crack down on sanctuary cities that protect undocumented migrants from federal deportation; those cities could face a loss of federal funding if they don't go along with the feds. 

More to the point, Republicans don't just control the federal government; they're dominant in most state governments and aren't hesitant to use this power. In Maine, Governor Paul LePage has said his government won't enforce the higher minimum-wage voters supported. Faced with the rise of restrictive city gun laws in Pennsylvania, the National Rifle Association and its allies persuaded the legislature in 2014 to pass a state law to override the local rules—though a court later overturned the law.

"The playbook for opponents is that if they're losing at the local level, they'll go over city's heads to the state to try to block local action," Sonn says.

Beyond the federal government being in the hands of Trump, activists say there are good reasons to push for change at the state and local levels.

"Our theory is you can build power at the local level in a very deep way," Bas says. "The federal government has a tremendous amount of power, but at the local level, city hall has control over regulatory power, minimum-wage laws, land -se power, and also purchasing power, which is a huge thing—both in terms of purchasing and in terms of economic development."

And Sonn believes GOP domination of state governments is misleading. 

"You go to any major city—Houston or Birmingham—there's much less partisan divide," he says.

Joseph McLaughlin, director of the Institute for Public Affairs and Center on Regional Politics at Temple University in Philadelphia, says there's one other reason liberals should take federalism seriously: America's just damn big and diverse.

"The parties are straining to represent a country that is in many ways is polarized—not just politically but geographically and economically—and they're having a hard time doing it," he says. "That may just be a recognition there's only so much a national government can do about the way people want to live their lives, when they have such fundamental disagreements."

"When you have a continental country with such varied economic and cultural entities, it makes sense not to have one size fits all," Gutzman adds.

In the meantime, progressive groups are organizing. Liberal federalism, Bas says, will face its challenges quickly after Trump takes office—particularly on the immigration front.

"Can we resist mass deportation, resist cooperating with any kind of registry?" she says. "We're waiting to see what happens post-January 20."

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