By Charlie Savage and Jack Healy
The faceoff between Texas and the federal government over whether the state can enforce its own immigration policy reflects a broader and recurring feature of American politics: a number of hot-button issues have become proxy battles over who gets to decide.
During the Trump administration, Democratic-run states like California and blue cities like New York waged legal fights over their right to pass sanctuary laws to protect migrants. Now, the conflict over whether Texas can arrest and deport migrants is just one part of a larger campaign that red states have directed at the Biden administration.
A coalition of Republican state attorneys general has also gone to court to thwart the administration’s efforts to regulate methane emissions from oil and gas drilling, to block a program that allows humanitarian entry to migrants from specific countries, and to halt an effort to crack down on gun accessories, among others.
The balance of power between the national government and states has been a source of tensions in the United States since its founding, leading to the Civil War. But in the 21st century, as partisan polarization has intensified, it has morphed into a new dynamic, with states controlled by the party opposed to the president regularly testing the boundaries.
The political issues run the gamut — including abortion, gun control, same-sex marriage and even marijuana legalization — but the larger pattern is clear: Whenever one party wins control of the central government, the other party uses its control of various states to try to resist national policies.
“We’re seeing stuff we’ve never seen in the modern era,” said Heather K. Gerken, the dean of Yale Law School who has written about contemporary federalism. “It’s really stunning what kind of proxy war is taking place. It’s all because the vicious partisanship that has long been a feature of Washington has now filtered down to the states.”
A clause in the Constitution says that federal statutes are supreme — and the traditional understanding is that where federal and state law conflict, federal law prevails. At the same time, the Constitution only grants certain powers to the federal government and reserves the rest to states. In practice, the powers of both levels often overlap.
As a result, the lines are not always clear, said Jessica Bulman-Pozen, a Columbia Law School professor who has written about what she calls “partisan federalism.” That ambiguity, she said, combined with the increasing nationalization of politics, has caused the parties to use control of states to resist presidents of the other party.
“We have a lot of political fighting that gets channeled through this federalist structure, where if you have a Democratic president, Republican-led states try to pick fights with the presidency and the same with Democratic states during Republican administrations,” Bulman-Pozen said. “And certain people’s views about state power and federalism are wont to change with different administrations and different exercises of power.”
Political scientists say the growing partisan gridlock gumming up Washington over the past 20 years has created the conditions for states that are handily controlled by one party or the other, like Texas and California, to set off on their own.
Liberal states like California and Democratic-run cities have passed gun restrictions, auto-emissions standards that are stricter than national standards and sanctuary policies to limit how local law-enforcement officers can work with federal immigration agents. Meanwhile, Republican states passed stringent abortion bans and declared themselves Second Amendment sanctuaries.
“The states have been growing more and more powerful,” said Lara M. Brown, a political scientist and author. “Most of us exist under state laws more than federal laws. Texans are happy they can walk around with their guns. And Californians are happy people aren’t.”
Akhil Reed Amar, a Yale Law School professor, said the arguments over federalism pit two ideals against each other. One is that everyone will be happier if different parts of the country can govern themselves, so long as people can move to the places they agree with. The other is that to be a viable country with an integrated economy, there have to be certain basic rules and uniform national rights.
History shows there are limits to how differently states can govern, in part because what happens in one state can affect another.
A judge on the federal appeals panel weighing Texas’ immigration law scrutinized that question Wednesday, asking whether the state could arrest an migrant without legal status who crossed into the state not from Mexico, but from Arizona. “Maybe?” responded Aaron L. Nielson, the Texas solicitor general.
Just as in the 19th century it proved untenable for the nation to endure while some states permitted slavery and others outlawed it — with fights over issues such as what happened when an enslaved person was taken to or fled to a free state — the political reality is that people try to use national control to impose a uniform vision.
But very often these fights end up in litigation, putting ultimate resolution in the hands of the Supreme Court. Since the court has increasingly tilted to the right because of President Donald Trump’s three appointments, Republicans have an edge.
In 2015, for example, the court voted 5-4 to strike down laws in conservative-leaning states that limited marriage to heterosexual couples, allowing same-sex couples to marry in all 50 states. In 2022, the court’s widened conservative majority — in addition to overturning Roe v. Wade — voted in a 6-3 decision to strike down laws in New York and other liberal-leaning states that placed strict limits on carrying guns in public.
Still, the deeper roots of the conflicts are found in the structure of the United States government that has put the powers of the national government in tension with states from the beginning.
“You see it over and over again,” said David I. Levine, a professor with the University of California College of the Law, San Francisco, who has tracked California’s conflicts with the federal government during the Trump administration. “The Civil War. Civil rights, integration of schools. It’s built into the system.”