Policy Essay

Federalism in a Time of Autocracy

Federalism in a Time of Autocracy

Ian Millhiser

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We live in dark times.

The President of the United States—Donald Trump—promised to “open up our libel laws” to punish news outlets that print coverage he does not like. He threatened to jail his political opponents. He called for certain political protesters to be stripped of citizenship. He pledged to kill the innocent family members of terrorists—an illegal order that, according to former Air Force General Michael Hayden, could set up the untenable circumstance in which military personnel refuse to obey an order from their civilian commander-in-chief. At one point, he called for “a total and complete shutdown of Muslims entering the United States.” And he opened his campaign by labeling Mexican immigrants criminals and “rapists.”

Meanwhile, his Attorney General—Jeff Sessions—prosecuted a former aide to Dr. Martin Luther King, Jr. after that aide helped black people in Alabama to vote. Sessions’ Department of Justice faces a Supreme Court that has actively dismantled much of the legal framework protecting voting rights.

As the executive branch contemplates direct attacks on the foundations of liberal democracy—open debate, equal protection of the law, perhaps even the franchise itself—the legislative branch is hoping to dismantle much of the modern liberal infrastructure built over the last century.

House of Representatives Speaker Paul Ryan’s signature plan to privatize Medicare would increase seniors’ out-of-pocket health costs by as much as forty percent. Medicaid spending under the plan stands to be cut by at least one-third, and potentially as much as one-half. A proposal by House Social Security Subcommittee Chairman Sam Johnson “would slash benefits by as much as half for some workers over the coming decades, and by close to twenty percent for even the poorest workers.” And then, of course, there is the Republican Party’s Ahab-like obsession with ending the Affordable Care Act.

The twin accomplishments of the twentieth century—a multiracial, open democracy and a modern welfare state—now face their greatest threat since at least the mid-1960s.

A significant challenge facing modern liberals is that these accomplishments depend on a strong central government. Programs like Social Security and Medicare, for example, are economically impossible to implement at the state level. Jim Crow fell only after the federal government took aggressive action to stop it.

Yet the powerful national government built by men such as Franklin Roosevelt, Lyndon Johnson, and Barack Obama is now led by Donald Trump. The sheer size of this national government—evidenced by the fact that it now employs tens of thousands of law enforcement officers—enhances Trump’s ability to harass the populations of immigrants he has threatened. Even journalists and political dissidents could be facing a new existence under siege.

The federal government grew dramatically, not just in size, but also in ambition, in the last several generations. Liberals encouraged this growth in part because they assumed that the risk of an autocratic president was minimal and worth taking for the benefits of a more robust central government. The 2016 election results call that assumption into question, raising disturbing questions about whether the broader liberal economic project is in tension with the need to protect against autocrats.

In our desire to defend against a potentially catastrophic presidency, however, it is important to remember that there are also heavy costs to dismantling the modern liberal state. If the Affordable Care Act is repealed, an estimated 27,000 people will die every year who would have otherwise lived. Before Social Security, aged workers typically either depended upon their adult children for housing and sustenance or took up residence in so-called poor houses—squalid, dehumanizing institutions where residents often received little, if any, medical care. The elderly poverty rate is now a third of what it was in 1966, largely because of the federal government’s commitments to older Americans.

Part I of this Essay will lay out some nonnegotiable areas that must remain the domain of the federal government. Such domains will include matters which cannot feasibly be implemented at the state level, such as safety net programs for the elderly, as well as areas where America’s troubling history argues against leaving matters entirely to the states, such as civil rights.

Part II will then lay out where federalist arguments can and should be used to defend against a potentially authoritarian president. The federal government employs relatively few armed law enforcement officers, at least as compared to local and state police forces. For this reason, Trump will almost certainly need help from state employees if he wants to implement his most ambitious proposals, one of which is the deportation of “millions and millions” of immigrants.

Yet the Supreme Court’s Anti-Commandeering Doctrine prohibits the federal government from commanding state and local officials to aid in implementing a federal policy, and the Constitution’s enumerated powers place subject-matter limits on the federal government’s ability to enact criminal law. Both offer meaningful checks on a potentially authoritarian president.

Finally, Part III will consider how the balance of power between the federal government and the states should be reformed if liberal democracy survives the Trump administration. It proposes consolidating federal law enforcement agencies and reducing the number of federal agents, while simultaneously converting Medicaid from a federal-state partnership to an exclusively federal program similar to Medicare. Doing so will reduce the ability of an authoritarian president to use force against the polity, while simultaneously shoring up an important health care program that is currently vulnerable to attacks from both federal and state policymakers.

Senior Fellow, Center for American Progress.

Cite this article:

Ian Millhiser

,

Federalism in a Time of Autocracy

, 35 Yale L. & Pol'y Rev. 521 (2017).