To this day, Republicans haven’t forgiven Chief Justice John Roberts for casting the deciding vote that upheld the core of the Affordable Care Act. But along with his tie-breaking vote in the 2012 decision, Roberts also did something conservatives give him far less credit for, and he even convinced two of his more liberal colleagues to join him. He dealt a crippling blow to Obamacare’s Medicaid expansion, declaring that the requirement was essentially extortion: Agree to expand health-care coverage or lose all of your existing Medicaid funding. This, Roberts wrote, was akin to “a gun to the head” of the states, and thus unconstitutional.
Blocking that kind of unlawful coercion is federalism in action, which conservatives have fought long and hard to defend as a local check against federal overreach. And now that Donald Trump is running the federal government, it’s a principle that liberals and progressives are embracing with open arms, as Democratic-leaning states and localities mobilize to shield themselves from federal policies they consider retrograde or just plain damaging to their residents and interests. Hand over undocumented immigrants to Trump’s deportation machine? Perish the thought. Let the chief executive faithlessly sabotage the health-insurance market in an otherwise liberal bastion? Over our dead bodies. Or how about Jeff Sessions’s intended crackdown on local marijuana laws? Get out of town.
“Progressive federalism” is not a phrase you hear often, but the Trump era may have prompted a liberal awakening to the benefits of local pushback against centralized executive fiat. When the president announced his ill-begotten travel ban a week after he took office, it was up to states like Washington and Minnesota to score the first major victory against the executive order’s implementation. And so it’s been with other hotly contested legal battles — over sanctuary cities, clean air, the payment of certain subsidies under Obamacare. It has fallen to Democratic attorneys general and municipal leaders to be standard-bearers for the legal resistance against Trump, who otherwise seems committed to trampling on states’ rights, conservative principles be damned.