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As Trump abdicates leadership role, California, Oregon, and Washington band together

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this announcement: California, Oregon & Washington Announce Western States Pact]

Very basically, federalism is the idea that states have the right to govern themselves but that certain areas of governance are better left to the federal government, such as threats to the nation as a whole such as, oh, say, a pandemic.

Most of the federalism questions arising over the years presumes that disputes that arise over where state power stops and where federal government’s power starts presumes that both sides want that power.

The constitution never quite presumed that the federal government would abdicate and leave a power vacuum, but that’s kind of what’s happened here, with the White House refusing to lead despite commanding agencies (e.g., HHS, CDC) whose charters mandate they oversee threats to the nation’s health.

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But perhaps “power” is the wrong way to look at our present predicament, because the White House evidently sees its leadership role as a “job” it would prefer not doing as opposed to a “power.” Protecting nurses and doctors by ensuring they have sufficient PPE against a nationwide pandemic is hard, sure, but the federal government’s administrative apparatus and intelligence services left it and not the states better suited to anticipate a response to a pandemic.

Indeed this White House would definitely like to retain “power” over the states, such as the power to “reopen” (whatever that means) the country by forcing governors to lift their stay-at-home orders. (How this would be enforced is beyond me.)

And that’s what this tri-state pact between California, Oregon, and Washington is about, affirming their right, collectively, to determine the conditions, manner, and principles upon which their states would “reopen.” It should comfort citizens in those states that “health outcomes and science — not politics” will guide decision-making.

So discussions about federalism transcend academic concerns because our expectations have been completely overturned by this administration’s opportunistic self-regard vis a vis its coordination with the states. Trump, wholly and profoundly ignorant of this country’s constitutional history, simply wants what he wants, usually for himself, but couldn’t be less interested in doing the work the constitution always presumed he’d do.

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