“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. — U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann, March 21, 1932.
I use the Brandeis quote to begin my comments of the new powers of the state legislatures after the 2014 election. I must, however, temper Brandeis’ comments in his dissent in New State Ice Co. v. Liebmann with a commentary by Michael S. Greve in his 2001 article in American Enterprise Institute. After all Brandeis was a liberal progressive and statist.
“Louis D. Brandeis favored federalist “experimentation in things social and economic” as a means to progressive, statist ends. Even his hagiographers concede that Brandeis would have held a very different view of state economic experimentation and its judicial review had those experiments run against, say, trade unions.
Modern justices have tended to overlook, or perhaps ignore, the instrumental and ultimately half-hearted nature of Brandeis’s federalist commitment. For example, they have quoted the “laboratory” dictum in the course of celebrating federalism’s virtues of diversity and attentiveness to local circumstances. Brandeis’s view of state experimentation, however, was entirely disconnected from those notions and instead emphasized its value as a step toward federal legislation. Similarly, profederalist justices have quoted the New State Ice dissent in opinions that reject, on Tenth Amendment grounds, federal impositions on state governments. Brandeis, as seen, did not believe in Tenth Amendment or any other constitutional federalism constraints.
One could easily live with an occasional out-of-context quotation. What distresses is the modern Supreme Court’s sustained Brandeisian tendency of subordinating federalism to progressive dictates and statist presumptions. The Court has empowered and protected state governments through creative interpretations of the Tenth and Eleventh Amendments. It has, however, refrained from resurrecting constitutional doctrines—foremost, a robust enumerated powers doctrine—that would discipline state governments by forcing them to compete for productive citizens. On the rare occasions that the Court has limited enumerated powers, it first reassured itself that the states can and will in fact regulate the problem at hand—gun possession on school grounds or sexual violence.
On issues that we now call “social,” the Court acts as a superintendent of experimentation. Untoward experiments, such as operating an all-male college, are verboten. Experiments of the right kind are not; in a way they are affirmatively required. If states fail to liberalize, with sufficient speed, laws governing sexual and life-and-death matters, the Supreme Court will move them along; witness Roe v. Wade.”
This “Laboratories of Democracy” concept explains how within the federal framework, there exists a system of state autonomy where state and local governments act as social “laboratories,” where laws and policies are created and tested at the state level of the democratic system, in a manner similar (in theory, at least) to the scientific method.
The Tenth Amendment of the United States Constitution provides that “all powers not delegated to the United States by the Constitution, nor prohibited by it to [from] the States, are reserved to the States respectively, or to the people.” This is a basis for the "Laboratories of Democracy" concept, because the Tenth Amendment assigns most day-to-day governance responsibilities, including general "police power", to the state and local governments. Because there are 50 semi-autonomous states, different policies can be enacted and tested at the state level without directly affecting the entire country. As a result, a diverse patchwork of state-level government practices is created. If any one or more of those policies are successful, they can be expanded to the national level by acts of Congress. For example, Massachusetts established a health care reform law in 2006 that became the model for the subsequent Affordable Care Act at the national level in 2010.
Since the 1930s, and more so in the following decades, the "laboratories of democracy" concept has been undercut somewhat by the growth of federal power under expansive interpretations of the Interstate Commerce Clause, which grants the federal government the power to regulate interstate commerce. See, for example, Wickard v. Filburn, 317 U.S. 111 (1942) and Gonzales v. Raich, 545 U.S. 1 (2005).
The Tenth Amendment may be stated as the cornerstone of Federalism. It was added to the Bill of Rights by our Founders. James Madison was not in favor of the Tenth Amendment as he believed the enumerated powers expressed in Article I, Section 8 of the Constitution would suffice to curb the power of the federal government. Madison finally succumbed to the wishes of the state conventions when he stated:
“I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.”
The states decided to ratify the Tenth Amendment, and thus declined to signal that there are unenumerated powers in addition to unenumerated rights The amendment rendered unambiguous what had previously been at most a mere suggestion or implication.
This brings me to the focus of this blog — the growing power of the Republican Party in state legislatures and how this may begin to tamper the coercive and over reaching power of the federal government.
Today after last Tuesday’s election there are ninety-eight partisan state legislative chambers in our nation. (Nebraska has a unicameral and nonpartisan legislature.) Not all state legislative chambers had elections this November, but of the seventy-seven state legislative chambers that did have elections, Republicans gained seats in sixty-one, while losing seats in only ten.
This translated into shifting control of ten legislative chambers from Democrat to Republican and included: the State Senate in Washington, Colorado, Nevada, Maine, and New York and the State House of Representatives in New Mexico, Nevada, Minnesota, West Virginia, and New Hampshire. Republican power in state legislatures is at the highest point in a century, both in the number of chambers controlled and also in the number of Republicans in state legislature — important facts that tend to be submerged in higher profile races.
Looking at particular regions, the impact of these elections takes new meaning. In the five-state “Great Lakes” region of Michigan, Wisconsin, Illinois, Ohio, and Indiana, Republicans made gains in state legislative chambers of each state and did not lose seats in any of the ten chambers. In the five legislative chambers in neighboring Minnesota, Iowa, and Missouri that faced voters this midterm, Republicans made gains in all five.
In the Rocky Mountain purple states of Nevada, Colorado, and New Mexico, Republicans gained the Colorado Senate, the New Mexico House, the Nevada Senate, and the Nevada House without losing seats in any of the state legislative chambers. Those gains matter. Governor Martinez will have one house of the New Mexico legislature to help her push her conservative agenda; Governor Sandoval in Nevada goes from working with two Democrat houses of the legislature to a Republican legislature; and Colorado’s Democrat governor, who won a close race, now has to work with a Republican Colorado House.
In the South, in red states thought to be trending purple — Florida, North Carolina, and Georgia — Republicans gained seats in three legislative chambers and lost a seat in one, and the other two were unchanged. Despite the hopes Democrats have expressed of becoming competitive in the South, Republicans now control virtually every state legislative chamber there. Eight of those states had state legislative elections, and in those sixteen legislative chambers, Republicans gained seats in twelve chambers and lost seats in one.
The long-term impact of Republican power in the South and Rocky Mountain areas is enhanced by the fact that these are also the two fastest-growing areas of the country. These are the states that will have more congressmen after the next census, and Republican legislatures will be drawing the new congressional districts.
But even in the Democrat stronghold of the Northeast, Republicans did well. Republican governor Corbett of Pennsylvania lost re-election, but Republicans increased their existing majorities in both houses of the Pennsylvania legislature. Republicans came close to winning the governor’s race in New Hampshire, the only purple state in New England, but Republicans actually did capture the New Hampshire lower legislative chamber and increased the existing majority in the upper chamber.
Republicans now, for the first time in a while, have the power to stop Democrats in states like New York (which now has a Republican Senate) and Maryland, where the unexpected victory of Republican Larry Hogan in the gubernatorial race was complemented by the gain of eight seats in the Maryland House, enough to sustain a veto by Hogan. Republican gains in the Illinois Senate mean that incoming Republican Governor Rauner will now have both houses able to sustain his veto. Governor Dayton will have to work with a Republican Minnesota House.
Perhaps the most important consequence will be in those states where Republicans in state government have shown real gumption. Scott Walker, of course, tops the list. Increased Republican majorities in both houses of his legislature, along with his own re-election open the door for even more revolutionary reforms, which will no doubt include public sector pensions and school choice.. Re-elected Republican governors in Michigan, Ohio, and Florida have bigger Republican legislative majorities, which ought to embolden these governors to push hard reforms of public employee unions, educational systems, and voter integrity, as well as tort reform and other vital issues.
It also should be noted that the state houses (31) and state legislatures controlled by Republicans will no doubt play a major role in the 2016 presidential elections. If these governors and legislatures do good work for the people of their states they will have a great deal of influence in deciding 2016 presidential vote. Their focus should be on balanced budgets, eliminated deficits, increasing employment with business friendly policies and regulations, and repairing infrastructure. Scott Walker of Wisconsin, Susanna Martinez of New Mexico, Nikki Haley of South Carolina, and John Kasich of Ohio are showing the way.
Finally I think that there are a few points that can be made about the 2014 midterms.
After repeatedly putting off any action on immigration until after the election, Obama announced just prior to the election that he would use his pen to enact immigration reform. This served to motivate the Hispanic vote, but not in the way he intended. Exit polls show that 36% of Hispanics voted Republican. This is a huge change from 2012, when Hispanics voted Democrat at over 70%. It turns out that quite a few law-abiding conservative Hispanics are not fans of illegal immigration or late-term abortion.
Obama said in a speech on Oct. 2, "Make no mistake: my policies are on the ballot." I believe he thought that he could motivate that same base that re-elected him in 2012 to go to the polls by making the election about himself. Think about it. Up to that point in the election cycle, he had stayed in the background. His national poll numbers were dipping below 40%. The Democrat incumbents had run away from him and were trying their best to disassociate themselves from their voting records. Why would Obama, at that point, reinsert himself into the race? Because he was convinced that he could motivate his base to go to the polls to vote Democrat by making the election about him.
This turned out to be a huge miscalculation. It handed the Republicans powerful ammunition just 30 days prior to the election.
In his press conference Wednesday, Obama implied that since two thirds of the electorate didn't vote, he still had a mandate from the 2012 electorate to execute his vision. I disagree. Let's look at who didn't vote. Obama's black base didn't vote. Why? I think his black base is angry with him. They can't bring themselves to vote Republican, so what is the alternative? How has the black community expressed their dissatisfaction in previous elections? They stay home. So Obama's claim that he still has a mandate is hogwash. Everyone is mad, including his base.
The combined shift of the Hispanic vote and the unhappy black community is a real problem for the Democrats. Do you think that the black vote will show up for Hillary? I don't think so. They're mad. They're mad enough to not show up for Obama, even though he told them that he was on the ballot. If the Democrats can't figure out a way to regain the lost Hispanic vote and convince their black base that they need to vote, then 2016 will be another tough year for them.
There will doubtless be more “gridlock” in Washington. Obama is just too arrogant and ideological for anything else. But the chance for dramatic change — something to show America in 2016 — is in Republican hands in many states now. Surely the only counsel now to these Republicans is stay united and be bold.