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Be wary of those advising you to bring a butter knife to a gun fight

In Thursday’s New York Times, Adam Liptak highlighted an irony of President Trump’s tirades against the federal judiciary: that the rulings thwarting some of his higher-profile executive orders–the travel ban and the threat to strip “sanctuary cities” of federal funding, more specifically–stem from precedents established by conservative Supreme Court justices and litigation strategies pursued by conservative actors (for the latter, also see here). In particular, Liptak focused on two practices used to block actions taken under Presidents Obama and Trump: (1) bringing constitutional challenges against policies that threaten states with financial harm if they do not carry out federal policy, and (2) asking individual district court judges to grant injunctions with nationwide effect. (I’d also credit the conservatives on the Rehnquist Court for their support of an “anti-commandeering” principle limiting the ability of the federal government to compel state and local actors to carry out federal policy.) The bulk of Liptak’s analysis proceeded to explain why liberals should be wary of the prospect of conservatives’ litigation tools being used to serve liberal ends. But the implications of this warning for how Democrats should respond to Trump policy initiatives–though the term “initiatives” suggests something more organized than this bunch of ill-conceived and amateurishly constructed executive orders–are murky at best, and Democrats would be foolish to follow the article’s implied advice.

Liptak is correct to note that both liberals and conservatives demonstrate Gumby-esque flexibility when it comes to their commitment to federalism and willingness to pursue short-term political victories at the expense of longer-term adherence to constitutional principle. But apparently, only liberals should eschew such flexibility, according to the two quoted law professors, both of whom do possess track records of commitment to federalism:

Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.”

Ilya Somin, a law professor at George Mason University, made a similar point from the opposite direction about the decision on Tuesday to block efforts to withhold federal money from sanctuary cities.

“Some conservative Republicans may not like the outcome of this specific case,” he wrote on The Volokh Conspiracy, a legal blog. “But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.”

The implication of these recommendations is that liberals should accept a paradigm in which states’ rights govern when Democrats control Washington, but not when Republicans do. But how does that translate into action?  How should Democrats respond to Trump executive orders they consider objectionable (pardon the redundancy)? Let’s consider the available alternatives to the status quo approach:

  • Liberals should refrain from raising states’ rights-based legal objections in court. The implication is that staying one’s hand today will preserve the ability tomorrow to defend strong national authority exercised on behalf of liberal causes (e.g., environmental protection, LGBT rights). But the practices liberals are being advised to eschew (making states’-rights arguments, seeking injunctions from judges based in favorable terrain) already exist. If liberals take this advice, these practices will still be available the next time a liberal administration needs to be thwarted. Barring a Supreme Court willing to revisit Rehnquist Court views on federalism–and no one should hold their breath waiting for the arrival of that Court–the precedents relied on by conservative litigators will remain available for deployment. A foolish consistency might not be the “hobgoblin of little minds” that Emerson claimed it is, but it would hardly guarantee future rulings favoring national authority dedicated to liberal ends. So if you’re stuck with conservative-preferred doctrine either way, why deny yourself the opportunity to use it to attain liberal-preferred results?
  • Liberals could exclusively raise legal claims not rooted in federalism. One of the advantages of litigating against a post-policy administration disinterested in legal niceties is that a wide range of legal claims opens itself up to you. Why not base one’s legal attack on claims rooted in equal protection or the First Amendment, as we saw in the response to the travel ban, or due process, as we’re seeing in the challenge to Trump’s attack on sanctuary cities? That way, you avoid lending support to doctrinal concepts you’d like to see discarded eventually, while backing concepts that you’d like to see fortified. Fortunately for liberal litigators, rights-based claims and federalism-based claims are not mutually exclusive logically or strategically. There’s no reason not to raise both and let judges decide which ones are more persuasive. Raising both sets also improves one’s chances of winning among a more robust set of judges; conservative judges who might be wary of expansive readings of equal protection, for example, could choose instead to rely on anti-commandeering arguments.

In short, we’re living in a legal regime that conservatives have played a crucial role in shaping. It would be folly for liberals to refuse to use the doctrines of that regime when they happen to work to liberals’ advantage, given the long odds that liberals will be able to alter that regime anytime soon.