When the Trump administration opted to rescind the Obama administration’s previous guideline on transgender bathroom policy, state power was a big justification. A letter released by the departments of Justice and Education evoked the need for community autonomy, noting that there “must be due regard for the primary role of states and local school districts in establishing educational policy”. Similarly, White House Spokesman Sean Spicer explained the issue as part of the president’s commitment to “states’ rights.” This posturing underscores a central difficulty with claims to promote states rights, as the Trump administration seems to be willing to use the concept selectively, only when it promotes their interests.
Take, for example, federal policy on marijuana. The Obama administration took a somewhat minimalist approach to enforcing federal drug policies in states that had legalized it, citing other important priorities. The Trump administration, however, doesn’t seem to agree. In a speech following his confirmation, the new attorney general Jeff Sessions signaled a step up in federal enforcement of marijuana laws regardless of whether or not the state had legalized it. On this issue, as with others, it appears the administration is taking a loose view of “states’ rights.”
Perhaps no other case exemplifies this better than the administration’s recent campaign against “sanctuary cities.” These cities typically refuse to detain people based solely on suspected immigration status, putting them in conflict with federal agencies like Immigration and Customs Enforcement (ICE). Some of these cities, rejecting the very name “sanctuary city,” maintain that they want to focus resources on local concerns and are unwilling to detain without a warrant. The Trump administration has begun to make federal detainments for those merely suspected of a crime, threatening to withhold funding from cities that refuse to comply. Here, again, we see federal policy at odds with local expertise as the administration is trying to force its one-size-fits-all approach onto local governments.
This is why it is often hard to regard claims of promoting states rights as anything more than a rhetorical tactic. Spicer claimed in his address on the transgender ruling that Trump felt “certain issues” were best delegated. This illustrates the vagueness that comes with most federal policy. When one administration revokes local control in some areas and takes it from others it becomes clear that the principle matters far less than the content of the issue.
“States’ rights” has been used throughout the history of American politics as a euphemism to support or contradict whatever states are currently doing. From the way the phrase recalls racial divides to its use as a challenge to gay marriage, it has historically been a way to disguise other policy aims. Given the inconsistency we see in Trump’s policy, it is hard to see this current use as anything different. Revoking the Obama-era statute is bowing to discrimination against transgendered individuals by calling it self-government.
Unfortunately the often-political use of this term distracts from the many solid reasons for delegation to states. It is true, for example, that states can be “laboratories of democracy,” trying out new policies and providing examples for other states to follow. It can also be true that local people know best how to do certain things, and in some areas, local political ingenuity has been impressive. Though the federal government has a much better record on issues of discrimination and civil rights, there is good reason for states to take the lead in areas which involve logistics, planning and implementation. The choice to dedicate resources away from immigration issues is one example of state innovation, and it is one embraced by many on both the right and left as a practical solution.
So what would a genuine push for states’ rights look like? It would entail giving states the ability to choose even when the states choice is something the federal party-in-power doesn’t politically agree with. It would entail providing clear nonpartisan guidelines on where state control begins and ends. It would also have to entail a concerted effort on the part of both parties. For that reason, it is unlikely we will see it happen anytime soon, despite all the posturing surrounding it.