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States of affairs: the prominence of the 50 state governments during the Trump presidency

Now that we have passed the 200-day mark of Donald Trump’s presidency and can take stock of elements of change and continuity in US policy-making in the new administration, it is important not to lose sight of the continued importance of state governments. Although developments in Washington, DC naturally attract significant attention, the fifty states continue to play a prominent and under-appreciated role in various policy areas. At the least, as scholars have shown, a full account of policy-making during the Trump administration, no less than in prior administrations, has to take account of the actions of state officials in adopting policies, challenging federal policies, and negotiating with federal officials about implementing policies.

State governments have long been policy pioneers in the US federal system, taking the lead in adopting measures that are in many cases later enacted at the national level. But state policy activism has accelerated in the 21st century in response to partisan polarization and gridlock at the national level. Democrats and Republicans are at relatively even strength in Washington. Even when one party holds the presidency and both houses of Congress, as Republicans currently do, the margins are generally narrow, with the minority party almost always holding enough seats in the senate (at least 41 out of 100) to mount a filibuster, thereby making it extraordinarily difficult to enact major legislation.

In most states, though, the executive and legislature are controlled by the same party, which in a number of cases holds a super-majority of legislative seats. Thirty-one states are currently characterized by unified party control of the executive and legislature — 25 are Republican dominated states and 6 are Democratic-dominated states. On issues where Congress fails to act, states often fill the policy vacuum whether boosting the minimum wage, legalizing marijuana, scaling back protection for labor unions, tightening restrictions on (or facilitating access to) guns, or adding (or relaxing) restrictions on abortion. Even when these and other policies are blocked in state legislatures, the availability of direct democratic institutions in half of the states makes it possible to achieve policy changes by putting them to a popular vote. Additionally, local governments have been active in enacting policies blocked at the federal and state level, such as increasing the minimum wage, even if state governments are increasingly pushing back by passing laws preempting local policy innovation.

State officials also continue to challenge federal policies, especially policies promulgated via executive orders or agency regulations, often by going to court. During the Obama presidency, Republican state attorney generals, most notably in Texas but also in other states, filed lawsuits challenging executive actions regarding immigration, environmental protection, and LGBT rights. In several high-profile cases, federal courts sided with state officials and issued rulings blocking enforcement of Obama administration policies, including the Environmental Protection Agency’s Clean Power Plan and the president’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

 It is important not to lose sight of the continued importance of state governments.

State lawsuits have continued into the Trump presidency, albeit with Democratic attorney generals now taking the lead in challenging federal executive and regulatory actions regarding education, environmental protection and immigration. This was on prominent display in the aftermath of the president’s executive order suspending admission of refugees and banning entry to the country from residents of various Middle Eastern countries. Although the US Supreme Court in June 2017 allowed a modified version of the president’s executive order to take effect, lower federal courts enjoined enforcement of the order for several months in response to lawsuits filed by the attorneys general of Washington, Minnesota and Hawaii.

State officials’ negotiations with federal officials about implementing federal policies attract less attention than state-filed lawsuits; but sometimes they are just as important in enabling states to chart their own path. Consider the role of states in implementing the Obama administration’s signature domestic policy, the Affordable Care Act (ACA), which among other things calls for states to expand the range of low-income persons receiving health coverage through the joint federal-state Medicaid program. Nineteen states have chosen not to participate in the ACA’s Medicaid expansion. Meanwhile, twenty-five states opted to expand Medicaid in the way set out in the ACA. But another half-dozen states engaged in extensive negotiations with Obama administration officials and secured waivers allowing them to expand Medicaid on their own terms, occasionally relying on innovative approaches not envisioned in federal law. These state-federal negotiations have continued during the Trump presidency, as state officials have sought and occasionally gained additional leeway in operating Medicaid programs and implementing other ACA requirements.

One lesson to be drawn from policymaking during the early part of the Trump presidency is that for all the attention understandably paid to actions taken by the president, Congress, and Supreme Court, and the ways Trump administration policies differ from Obama administration policies, state governments continue to play a prominent role, in the current administration no less than in prior years, in crafting, challenging, and shaping implementation of key policies.

Featured image credit: capitol building California by sarangib. Public domain via Pixabay.

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