Framing President Donald Trump's so-called “feud” with California — in which the President has most recently revoked their ability to set automobile emissions standards and threatened to engage the Environmental Protection Agency over their homelessness problem — is California’s flagrant abuse of federalism.
The concept of federalism is closely connected to the idea of states’ rights, something the Founding Fathers battled over in The Federalist Papers at the country’s inception. Conservatives today tend to favor the idea of allowing states to implement policy and pass laws that suit the needs of the residents in their states. The Trump administration has embraced the concept as well, most noticeably in health care, encouraging states to make use of Obamacare’s innovation waivers to come up with heath care programs that fit their states needs.
But in cynical fashion, California’s Democratic leadership is trying to use Republicans’ preference for federalism to institute policies that will actually reach far beyond the boundaries of the Golden State, with at least one almost certain to violate the Constitution’s interstate commerce law.
That policy shift, codified in a the union-backed Fair Pay to Play Act, which passed the California Legislature this month, would seek to pay student athletes in violation of NCAA bylaws. The violation of those rules is accommodated in the law, which would ultimately give California a competitive advantage when it comes to recruiting. As a result, other states may try to institute their own laws to address the disadvantage, which could render the NCAA irrelevant and might run afoul of the Commerce clause, according to the Wall Street Journal.
The legislation may also violate the Commerce Clause, which prohibits states from burdening interstate commerce. Nevada passed a law during the early 1990s requiring the NCAA to expand due process protections for its colleges. As in California, the Nevada law specifically forbade the NCAA to retaliate against compliant schools. Yet the Ninth Circuit Court of Appeals invalidated the Nevada law because it would interfere with interstate commerce.
California’s law could have the effect of changing the entire face of college sports, and not necessarily in a way that benefits student athletes or collegiate sports programs. Turning college athletes into employees gives unions the ability to organize those athletes and mandate universities, colleges, and students pay union dues.
Legislators in the state have done something similar by upending Lyft and Uber via the passage of AB 5, which seeks to reclassify contractors as employees. There are concerns by some of the ride share companies that the increase in costs related to the reclassification could be detrimental to their competitiveness. But California legislators seem less concerned about the vibrancy of the market than about setting a standard on labor rights.
"We are disrupting the status quo and taking a bold step forward to rebuild our middle class and reshape the future of workers as we know it," [Assemblywoman Lorena Gonzalez, a Democrat from Southern San Diego County who sponsored the bill] said in a statement. ”As one of the strongest economies in the world, California is now setting the global standard for worker protections for other states and countries to follow."
California has been involved in this kind of manipulation of federalism for years. That may be why, at least partly, the Trump administration has decided to blatantly push back by stripping California of the waiver system that allows them the ability to set car emissions standards.
Back in the 1970s, when Los Angeles was battling a blanket of fog, California was allowed to set emissions standards that were soon adopted by other states.
The state was allowed to set tougher emission standards than the federal government as long as it could provide a compelling reason for why such a waiver was needed. In 1977, other states were allowed to adopt California's stricter standards.
The Golden State's rules have largely become the de-facto benchmark nationwide because car manufacturers do not design different sets of vehicles to meet standards in other states. The state accounts for about 12% of all vehicle sales.
Emissions control methods first used in California, such as catalytic converters and regulations on oxides of nitrogen, have become commonplace throughout the US.
Thirteen other states and the District of Columbia have already adopted California's stricter exhaust pipe greenhouse gas standards - together representing about a third of the US car market.
More recently, under the waiver system, California engaged in “secret negotiations” with Ford, Honda, Volkswagen and BMW of North America that had the carmakers pledging to produce automobiles that guaranteed a higher number of miles per gallon of gasoline. The goal was an ostensible reduction in greenhouse gases, but the Trump administration quickly and vocally countered that fewer cars would be produced at a much higher cost.
California has pledged to fight the administration on the emissions issue. In fact, their zeal to fight the administration is all part of how they view themselves as the real leadership in the country. Progressive Governor Gavin Newsom said as much on Twitter Tuesday.
“Fact is, CA's outperforming the federal government: Running record surpluses while Trump runs record deficits. Meeting our climate goals while expanding our economy. We're the progressive answer to a transgressive President -- and it's driving [Trump] mad.”
That kind of hubris from a state legislator is at the heart of the abuse of federalism California seems hellbent on promulgating. Federalism allows all states to decide for themselves what works best in their state, not be manipulated into following California along a primrose path that leads to unions and inefficient and expensive climate change regulations.
Sarah Lee is a freelance writer and policy wonk living and working in Washington, DC.