From Liberal States’ Rights Litigation to Liberal States’ Rights Discourse: A Study of State Oppositional Strategies to the ACA and Federal Immigration Laws

The battle for state rights under the Obama administration was fought mainly in the courts. This was particularly evident in the opposition carried out against the Affordable Care Act (ACA), which was challenged in the Supreme Court. The constitutional arguments used by the petitioners typified the usual positions of conservatives on major federal social programs; they challenged the power of Congress to legislate on healthcare and impose mandates. What is less known, however, is that the lawsuit was preceded by numerous legislative measures passed by state legislatures to avoid the implementation of the ACA within their borders. State legislatures passed so called “anti-commandeering resolutions” in the hope of influencing upcoming litigation. Their claim was that Congress could not commandeer the states or state officials to implement a federal program. This paper compares the strategies used by red state legislatures to oppose the Affordable Care Act with the strategies presently used by blue state legislatures and local jurisdictions to push back on Trump’s immigration policy and recent executive order directing that federal funds be withheld from so called “sanctuary cities.” It also argues that blue states are now replicating the same push back strategies used by red states against Obama’s healthcare reform. For instance, on October 5, 2017, the California state governor signed Senate Bill 54 that prohibits state and local law enforcement agencies, including school police and security departments, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. The California legislature enacted the bill claiming that the federal government cannot “commandeer” state officials to enforce federal law, just like red states did between 2010–2016 to avoid the implementation of the ACA. As a consequence, sanctuary cities like San Francisco began and continue to block their jails from turning over criminal aliens to federal authorities for deportation. The similarity of the strategies is also reflected in the legal challenges. In response to the Trump’s executive order, a number of sanctuary cities brought actions against the President, challenging the constitutionality of the provision on anti-commandeering grounds. On November 20, 2017, Circuit Judge William Orrick permanently blocked the provision, ruling it was “unduly coercive” and violated the separation of powers, the Tenth Amendment’s prohibition against commandeering local jurisdictions, and the Fifth Amendment’s procedural due process requirements. Another battle for federalism has just started in the United States and the merits of the litigation could soon be with the Supreme Court. The constitutional dynamics are very similar to those of the battle against the ACA. This article examines the numerous legislative measures that prepared that lawsuit