Deputy Attorney General Jeffrey A. Rosen Delivers Remarks on Federalism to the Federalist Society D.C. Monthly Lunch

Remarks as Prepared for Delivery

Thank you Dean Reuter for that very kind introduction, and thank you to the Federalist Society for inviting me to speak to you at lunch today.  I am very pleased to be speaking to you in my current role as Deputy Attorney General, which I have held for nearly eight months now.  There have been some illustrious predecessors in the DAG position, including a gentleman named Bill Barr, who held it in 1990. 

In any event, in thinking about what I would discuss today, it came down to whether to discuss a recent DOJ Inspector General report, or something more closely connected to the Federalist Society, such as the topic of federalism.  I didn’t want to let you down, so I am going to talk about federalism.  I am just not sure how many of you would have wanted to hear about an Inspector General report titled “Office of Justice Programs Regional Information Sharing Systems Grants.”  But for those of you who pine for that, I am going to refer you to the DOJ IG website.

Now that I have revealed today’s general topic of federalism, there is another risk involved here.  It’s been said that there are two ways to empty a room in Washington:  one is to hold a fundraiser for a defeated candidate and the other is to announce a debate on federalism.  But I am going to test the second part of that statement today, because the Federalist Society seems like the perfect place to talk about federalism and you have a history of liking to talk about it.  But, just in case, I’ve asked our hosts to bar the doors.

So let’s talk about federalism.  But I want to talk about it from a somewhat different angle than we often address it.  Much of the time when we talk about federalism, the concern is about federal overreach, or federal impositions on states.  That is itself an important issue, of course.  And in recent decades, there has been some success at identifying such issues, and ensuring a better demarcation of where federal authority ends.  The Federalist Society has played a constructive part in that, with members actively discussing these issues and identifying the lines of concern.

But today, instead of focusing on federal intrusions into state realms, I want to talk about state transgressions against federal authority.  That is the other side of the federalism equation, as federalism is about allocating authority at different levels.

As members of the Federalist Society well know, by dividing power, federalism secures limited government and individual liberty.  Our Constitution creates a federal government of enumerated powers, and reserves the balance of power to the states and the people.  And the Supreme Court has said more eloquently than I can:  “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” 

Now the concern that states could overreach was itself a part of the Founders’ thinking in developing our federal system.  Their experience under the Articles of Confederation taught the Framers about the need for an effective federal government in certain areas requiring national, not state-by-state, policy.  For example, under the Articles of Confederation, states could effectively nullify the national government’s policies, even on things as essential as servicing the federal debt or as vital as raising armies.  And under the Articles, powerful states could enact policies that benefited themselves at the expense of weaker states — for example, states with important seaports could impose heavy tariffs on goods bound for other states.

To fix these problems, the Constitution gives the federal government limited but defined powers to enable it, where appropriate, to impose national policies.  In its proper sphere, federal authority is essential to national governance.  So the Constitution contains numerous provisions that create federal authority, and that help define the balance between states and federal authority and between states themselves.  You surely know them well:  examples such as the Commerce Clause; the foreign relations powers; the Supremacy Clause of Article VI; and various tools of federalism such as Full Faith and Credit, Privileges & Immunities, Compact Clause, diversity jurisdiction, and others.

The upshot was that the federal government’s right to operate without interference in its domain is just as much part of the constitutional design as states’ right to operate without interference in their domain.  Today I am concerned that there are some states that may be overreaching their authority in ways that fundamentally undermine federalism and the individual liberty that it protects.  And, that is why there is a need to focus on problems growing out of states acting beyond their proper spheres.

Before I turn to an overview of these state federalism concerns, however, I want to be clear at the outset that some litigation by states to challenge federal activity can sometimes be appropriate, and vice-versa as well, without raising any real federalism problems.

This administration has won many of those kind of cases.  For example, the Justice Department has prevailed in litigation on everything from relatively lower-profile issues, such as EPA’s “Once In, Always In” guidance memo, to high-profile ones, such as the so-called “travel ban.”  Nonetheless, it is perhaps a sign of the times in which we live that even “normal” state challenges have an abnormal aspect these days, which is the sheer volume of cases.  For example, California alone has brought more than 60 cases; New York has brought more than 50.  But that’s a topic for another day, since I want to focus not on regular litigation, but on the topic of federalism.

Again, the issue is state efforts to negate or circumvent federal law, which is sometimes called “vertical federalism,” as opposed to “horizontal federalism” involving issues between states themselves.  Today, there are states that are trying to explicitly negate federal law in a range of areas.  This is a modern day kind of “nullification doctrine.”  It comes up in a wide range of topics and a variety of cases.  Given time constraints today, I will focus on two examples as ways to think about the issues.  One involves federal lands policy, and the other involves immigration.

Let me first address the land example, which arose from a law called California SB 50.  As many of you probably know, a huge percentage of Western lands are owned by the federal government and the lands contain natural resources that could support jobs and economic growth.  The administration concluded that more development of natural resources on current federal lands would be economically beneficial.  But apparently there was a state that did not agree:  to block the Administration from selling or transferring federal lands for such purposes, California enacted SB 50 in 2017.  SB 50 purported to give California a right of first refusal in any sale or transfer of federal lands by the federal government and declared that any sale or transfer that did not comply with that requirement is void.

But, as is well known to today’s gathering, going all the way back to 1819 in McCulloch v. Maryland, it has been black letter law that the states cannot directly regulate the federal government or its officers or discriminate against the federal government.  This is the doctrine of intergovernmental immunity.  So DOJ successfully obtained an injunction against SB 50 on intergovernmental immunity grounds under Article VI of the U.S. Constitution.

According to the court, the “plain text of [SB 50] lends no credence” to California’s argument that the right of first refusal regulates purchasers of federal land, not the government itself.  SB 50 also discriminated against the United States and those who deal with the United States, and California “advance[d] no argument that [the discriminatory] aspects of SB 50 are constitutional.”  So an effort to negate federal policy in this instance was rejected by the court.

Here is another example, involving immigration.  A number of states have passed statutes purporting to prohibit state and local officials from cooperating with DHS in enforcing federal immigration laws, especially with regard to aliens lawfully arrested for committing crimes.  Two illustrations are California AB 103, which purported to require the state Attorney General to inspect detention facilities housing ICE detainees, and California AB 450, which purported to prohibit public and private property owners from consenting to ICE entering their property, and would have instead mandated that ICE have a judicial warrant to procure any such entry.

Again, the United States has largely prevailed against these two laws on Article VI Supremacy Clause grounds.  As the Ninth Circuit acknowledged:  “AB 103 imposes a specialized burden on federal activity,” and “that vital distinction renders the burdensome provisions of AB 103 unlawful under the doctrine of intergovernmental immunity.”  Likewise, in partially enjoining AB 450, the district court held that the fines imposed by the statute on employers who cooperate with immigration authorities “target the operations of federal immigration enforcement” and “are a clear attempt to meddle with federal government activities.” 

There are a wide range of other examples, and they involve things ranging from health care to the environment to things like aviation and trucking, but in the interest of time I’ll have to save those for another day.  Hopefully these two examples are suggestive of the problems, and enable you to think about the federalism concerns in play.

And that takes me to a bigger picture concern.  Maybe we need to ask how the role of some of these states directly opposing federal laws compares to the “nullification doctrine” of the 1830’s.  In at least one important respect, present-day efforts at Article VI negation may be more extreme than the nullification advocated by the likes of Senator John C. Calhoun in the 1830s.  Back then, the nullification doctrine was limited to a theory that a state could claim to disregard federal law when the state regarded the federal law as unconstitutional.  But the more recent forms of nullification are situations where a state merely disagrees with federal policy in realms where the federal government has constitutional authority.  If that kind of approach became more widespread, it would generate the weakness and concerns that arose under the Articles of Confederation.  Back in the 1830’s, one of the Framers, James Madison, wrote that the nullification doctrine had a “fatal tendency” that puts “powder under the Constitution and Union, and match in the hand” of any state, allowing states to decide whether to “blow them up.”

In that regard, opponents of federalism who support nullification efforts are well-advised to consider that the shoe can sometimes wind up on the other foot, or to use another metaphor, their own oxen could be gored.  Consider that a number of states have considered bills to nullify the Affordable Care Act.  And in recent years a number of states, including Kansas and Montana, enacted laws to circumvent federal gun control regulations.  While the ultimate merits of these actions always depend on the context and the facts, these examples are reminders that “vertical federalism” arises in varied situations.

So a very important aspect of the principles of federalism is that they apply evenly to all states, regardless of whether they are so-called “blue” states or “red” states.  The Constitution strikes a careful balance between the authority of the federal government and the authority of states, which inures to everyone’s liberty.  Federalism has served us well for a very long time, and it’s sometimes forgotten that its core principles apply independent of the political wind of any given moment in time.

Finally, in thinking about federalism, we are of course reminded of the importance of the courts, and of ensuring that we have judges faithful to the Constitution.  On that topic, perhaps the good news is that, on the whole, our courts are experts at dealing with constitutional issues, and the Supreme Court has shown that it is possible for judges of varied philosophical perspectives to reach consensus on some important issues.  Regarding federalism, I’d point to Tennessee Wine & Spirits Association v. Thomas, where just last June seven justices struck down a protectionist state law in the face of a Dormant Commerce Clause challenge.  So there was wide agreement among the Justices about the state overreach in that case.  More generally, here is a little known fact about consensus on the Supreme Court:  During the previous administration, there were at least 47 cases in which the Supreme Court ruled unanimously against the Obama Administration’s position.  So there may be more consensus on some issues than is sometimes recognized.

One thing everyone should be able to agree upon is the importance of having good, highly capable, and fair-minded judges.  And that is something this Administration has focused on, as has the U.S. Senate.  So I am happy to report that this week, the Senate confirmed two new judges to the Ninth Circuit, bringing the total new judges appointed since 2017 to 177.   Unlike sports such as football or baseball, where we put our best players on the field, in the law we put some of our very best people on the bench.  So, perhaps honoring that fact, and our judiciary, is a good place to end today.  Thanks to all for being here.