President Trump’s Spending on a Border Wall: Federalism at Risk?

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.

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1. Charlie Savage and Robert Pear, “States’ Lawsuit Aims to Thwart Emergency Bid,” The New York Times, February 19, 2019.

2. Ibid.

3. Ibid.

No State Left Behind: American Education Eclipsing Federalism

Facing a federal requirement that every student be proficient in math and English by 2014, the member-states in the U.S. rushed to apply for waivers in 2011 and 2012. In 2010, 38 percent of the schools had failed to meet their goals for annual progress toward the 2014 goal. The U.S. Secretary of Education thought that figure could soar to 80 percent. When a school fails to meet such goals, the No Child Left Behind law requires “a series of interventions by the district and the state that can culminate in a state takeover. With so many schools failing, “that threatened to create an impossible burden on states and districts,” according to Chester Finn, director of an institute that studies education.[1] The waivers did not come without strings, however. The Obama administration pushed the governments to measure teacher performance, and put increased emphasis on low-performing groups as well as on the lowest-performing schools.

While the waivers can easily be seen as an effort to put the Obama administration’s own priorities on legislation from a prior administration, the Secretary of Education, Arne Duncan, claimed that his aim was to get out of a bad law that could overwhelm states that don’t measure up. “Our goal with this waiver process, frankly, has always been to get out of the way of states and districts,” he said.[2] If this were so, however, he would not insist on negotiating for better terms in granting the waivers. Beyond this extent of intervention, that of the No Child Left Behind law requiring “interventions by the district and the state” with failing schools interlards the U.S. Government in a domain that is constitutionally reserved to the states. Absent the enumerated (i.e., listed) powers of the federal government, the fifty republics are sovereign states. While the Congress can spend in the general welfare of the political and monetary union, strings beyond the general purpose trigger a breach of the constitutional design, which should give the republics enough power to act as a check on the other system of government—that of the union itself. That is, specifying down to district intervention meddles inordinately in a state’s system of government to implement federal law.

In terms of education, the role of the U.S. Government should be oriented to regulating the interstate aspects, such as making sure that students are not deprived of equal protection (e.g., not discriminated against) and that out-of-state students are not gauged at the university level. Any spending should come attached to a general purpose (which I believe must be within an enumerated power, especially if there are any strings attached), rather than with requirements for implementation (or penalty). Should a republic not spend the money in line with the purpose (especially if that purpose lies within one of the sovereign domains of the member states), the federal government could sue to get the money back. If this seems to restrict Congressional power unduly, it may be that the federal power had gone so far beyond what is consistent with a federal system that what seems drastic is merely what is necessary to get back in line with it. In terms of failing schools, the underlying problem may be that Americans (i.e., including parents of school children) do not value self-discipline (i.e., at the expense of instant gratification) or education itself enough. Imposing federal requirements and penalties are doomed to fail against such societal disvalues. In other words, we are trashing federalism for nothing.

1. Richard Perez-Pena, “Waivers for 8 More States from ‘No Child Left Behind,” The New York Times, May 30, 2012.

2. Ibid.

In Defense of the Tea Party

In the wake of the U.S. House’s “Tea Party” caucus in the Republican caucus on July 28, 2011, which effectively delayed the Speaker’s bill for raising the debt ceiling, it might be useful to row against the current for a moment if only to present a defense of the Tea Party’s agenda. To be sure, problems exist in it, but a defense can be made. I submit that the media has not been particularly accurate, or fair, concerning the movement or its involvement in the U.S. Government.

Most notably (but not obviously), Tea Party representatives are correct that August 2^nd does not necessarily bring with it default, for that refers only to the Treasury department not making the required interest and principal payments on the debt. That some government agencies have to shut down does not constitute default, for the latter pertains ONLY to serving debt. Indications are that the U.S Government could service its debt August from incoming tax revenue. If so, default would only be voluntary—if the Treasury should decide to use the tax revenue for other uses.

It is more accurate to say that delaying raising the debt-ceiling would increase the likelihood that the U.S. Government’s credit rating will be lowered to AA from AAA. On this front, the refusal to compromise can be excoriated. For its part, the Tea Party might say that it is worth risking if a structural re-alignment could occur.

What does the Tea Party really want: a reduction in government or a reduction in the federal government? Or both? Other things equal, I suspect that the party would prefer a given domestic program to be at the state level, but even there the spending (and taxing) would receive some ire. If the goal is primarily to restore federalism, the Tea Party is on firmer ground. Since the CSA-USA war (1861-1865), the United States has been trending toward political consolidation at the expense of the innate diversity coming with an empire-scale. Nothing—not even Ronald Reagan and his Supreme Court—could turn the tide. One could not blame the Tea Party for saying: if not now, when? Indeed, the existence of a $14.3 trillion U.S. Government debt—roughly the amount of the annual GNP—can be viewed as a manifestation, or symptom, of the imbalance.

So it makes sense to pick the debt-ceiling as the matter on which structural adjustments can be made. However, what if the majority of the people, or branches, prefer consolidation to federalism in any meaningful sense? Is it fair to foist a structural shift on the majority? Would not it be fairer to promote a constitutional amendment directed on the question of federalism?

Of course, the Tea Party representatives could simply be opposed to the debt, and therefore of increasing it. If it is unsustainable already, then raising the debt ceiling might make matters worse even if it assuages short-term difficulties. If the leverage possible in a debt-ceiling decision is given up, there might not be another chance to stop the trend of more and more debt being added to what is already unsustainable. Rather than force massive short-term spending cuts in federal programs and agencies, however, the leverage could be used to agree to longer-term cuts, say over ten years. This is what the Tea Party has been for, though at the risk of short-term shock.

However, it could be countered that were the Tea Party really focused on reducing the debt, the objection to increasing tax revenue, especially for the rich whose effective rate is eighteen percent, would not exist. That is to say, even if citizens and residents are being taxed too much, it is not too much relative to the debt (past spending that was borrowed). This is different than saying that spending should be cut, for that applies to current and future deficits. An enhanced Tea Party position would be to come down hard on the debt (and further deficits), and thus be for both spending and revenue means of closing the gap. Even combined, it will be difficult to pay off the $14.3 trillion.  From this perspective the spending/revenue debate is premised on a false dichotomy wherein one or the other is assumed to be sufficient. The magnitude of the debt relative to GNP—the highest since the end of WWII in the twentieth century—suggests that the Tea Party is not radical enough.