U.S. President Trump announced
in February of 2019 that he would fully fund a wall on the U.S.’s southern
border. He would first use the $1.375 granted by Congress to be followed by $600 million from a Treasury Department
asset-foreclosure fund for law enforcement, $2.5 billion from a military
anti-drug account, and $3.6 billion in military construction funds.[1]
The president’s rationale hinged on his declaration of a national emergency due
to illegal immigration, drug-traffic, and crime/gangs—all having been coming
across the border on a regular basis. In federal court, sixteen of the U.S.’s
member-states challenged the president’s declaration and use of funds. The U.S.
president’s legal authority to declare national emergencies was pitted against the
authority of the U.S. House of Representatives to be the initiator of federal
spending legislation. The House therefore had standing to sue. The question of
the states’ legal standing is another matter. It is particularly interesting because
it involved not only whether a given state would be harmed by the wall or even
the president’s use of other funding sources that could otherwise be used for
other projects in the states not directly affected by the wall, but also
because federalism itself could be negatively affected in a way that harms all
of the states.
Prime facie, it seems
difficult that California and New Mexico could show injury from a wall that
would not be built in either of those
states. On this basis, the injury to Hawaii seems far-fetched, as the ocean
functions as that republic’s border. Similarly, New York is nowhere near the
U.S.’s southern border. Arguing, however, that “the president’s
unconstitutional action could cause harms in many parts” of the U.S.,
California’s attorney general at the time insisted that the member-states had
standing apart from where the wall would be built.[2]
Given the sources of the funding, all of the states could “lose funding that
they paid for with their tax dollars, money that was destined for drug
interdiction or for the department of Defense for military men and woman and
military installations,” he explained.[3] This point, I admit, is valid but it lacks a larger constitutional view.
In a federal system in which
the member-states and federal governmental institutions both have their own
basis of governmental sovereignty, a power-grab by one means less power for the
other. The judicial trend since the war between the U.S.A. and C.S.A. during
the first half of the 1860s has been to validate encroachments by the federal
government on those of the states. President Trump’s decision to build a wall in
some of the member-states represents a power-grab not only with respect to the
Congress, but also the states. In the E.U., by contrast, the states have more
say in how the E.U.’s border is protected. The European model of federalism
values cooperation at both the policy and implementation stages than does the
American model in which ambition is set to counter ambition.
The U.S. Senate was originally
intended to be the access point in the federal government in which the state
governments could affect or even block proposed federal legislation. When U.S.
senators became popularly elected by voters in the respective states rather
than appointed by the state governments, the latter lost their direct access in
the federal government. Before then, a majority of states could defend not only
their own interests, but also the interest of the state “level” in the federal
system. It would be more difficult for the state governments to forestall
encroachments (i.e., power-grabs) by the federal government. The federal system
itself would suffer from a growing imbalance.
With the state governments no longer able to
directly express themselves in the U.S. Senate because senators had an obvious
incentive to satisfy constituent and especially financial-backer interests, going
to the courts became the only route in trying to stop the federal president’s
spending-plan for a wall. Yet even that strategy suffered from the
institutional conflict of interest implicit in a federal court deciding disputes between the states and the federal
government. Perhaps looking narrowly at anticipated injuries to the 16 states
would attest to the federal-bias in the federal courts, which nonetheless have
a responsibility to consider the standing that the states have in the federal
system. After all, they rather than the federal government enjoy residual sovereignty. Is not a federal
encroachment itself an injury to the
state governments as per their loss of power? By the twenty-first century, the
federal government could claim preemption in order to keep the governments of
the states from legislating in an area of law even though the federal government does not intend to legislate in it!
The danger in such an imbalanced federal system—that is, a lopsided system of
governance—is that the encroaching government becomes tyrannical not just
toward the states, but the People as well. As the power-checking-power
mechanism breaks down, absolute power becomes increasingly likely.
For more comparisons of American and European federalism, see Essays on Two Federal Empires: Comparing the E.U. and U.S., and American and European Federalism: A Critique of Rick Perry's "Fed Up"! Both are available at Amazon.
For more comparisons of American and European federalism, see Essays on Two Federal Empires: Comparing the E.U. and U.S., and American and European Federalism: A Critique of Rick Perry's "Fed Up"! Both are available at Amazon.
1. Charlie Savage and Robert Pear, “States’ Lawsuit Aims to Thwart Emergency Bid,”
The New York Times, February 19,
2019.
2. Ibid.
3. Ibid.
