AYESHA RASCOE, HOST:
The U.S. Constitution is explicit about the division of power, not just between the three branches, but between the federal government and the states. President Trump has been aggressively pushing federal control.
(SOUNDBITE OF PODCAST, "THE DAN BONGINO SHOW")
PRESIDENT DONALD TRUMP: The Republicans should say, we want to take over. We should take over the voting in at least many - 15 places. The Republicans ought to nationalize the voting.
RASCOE: He made those comments last week on "The Dan Bongino Show." Days earlier, the FBI seized 2020 ballots in Georgia, following his administration's demands that states turn over their voting data. Article 1, Section 4 of the Constitution gives states the power to run elections. Joining me now is Alison LaCroix. She's a professor at the University of Chicago Law School who specializes in federalism and constitutional law. Good morning.
ALISON LACROIX: Good morning.
RASCOE: So let's begin with your take on President Trump's call for nationalized elections. Like, how do you read those comments?
LACROIX: Well, not to put too fine a point on it, but I think they are both ludicrous and deeply unconstitutional. States generally are not the agents or tools of the federal government, and especially when that's a principle that's embodied in specific language in the Constitution, but it's also a deep background principle of our system of federalism.
RASCOE: Well, talk to me about, like, how did the founding fathers, particularly James Madison, envision federalism working?
LACROIX: Well, I think they thought that federalism was a good thing to have, and a big part of what was good about it was that it put frictions into place. It made governments have to negotiate and maybe have conflict and bump up against each other. So in his Federalist essay No. 51 in 1788, Madison says, hence, a double security arises to the rights of the people. The different governments will control each other, and at the same time, each will be controlled by itself. So the system was built to have checks and balances in the federal state sense in order to protect individual liberty.
RASCOE: Well, how has that evolved since 1789? Obviously, there was a civil war fought over differences between the federal government and some states.
LACROIX: Well, one of the interesting things spanning back to before the Civil War and then up to today, one of the deep principles that the court over and over has gone back to is what they call the anti-coercion principle or the anti-commandeering rule. And it basically says the federal government cannot use the states to carry out its policies. So whether that's Congress saying, we want to have states regulate in a way that disposes of hazardous waste or Congress trying to require state officials to carry out background checks on gun purchasers. And the Supreme Court, in that case in 1997, said the federal government may neither issue directives requiring the states to address particular problems, nor command the state's officers to administer or enforce a federal regulatory program.
And one thing that's also worth noting is that opinion in 1997, the case is called Prince v. U.S. The opinion was written by Justice Antonin Scalia. So it was actually the more conservative court in the '80s and '90s that was really standing for these principles of state sovereignty. We still have this core principle that the federal government can't commandeer, dragoon, impress all these kind of military words. It can't use the states to do its bidding.
RASCOE: Are you concerned, or do you think that the Supreme Court may take a different view of federalism now than has been found in all these other cases in the past?
LACROIX: There are a lot of reasons why I expect even the conservative-leaning Supreme Court to really adhere to principles of state power and state autonomy. I mean, they've done it in a number of recent cases. So if we think about the Dobbs case overturning Roe v. Wade, part of what the court said was, these decisions should be made by states. And we see that across a lot of big, very hot-button, high-profile cases. There is still then that principle of states have autonomy over significant areas of just day-to-day life. Executive power is clearly a domain where the conservatives on the court seem willing to allow a lot of power. But the pushback from the states is something that they have also tended to feel needs to be protected and reinforced.
RASCOE: In the past, we have seen on the left arguments in favor of, you know, the federal government being able to step in when it comes to civil rights. But now it seems like that has flipped, and you have, you know, people on the right talking about wanting this strong federal government and states kind of adhering to the federal government.
LACROIX: Yeah. I mean, I think there's a sense that nowadays, liberals or the left have suddenly discovered states' rights, but there are cases in the 1840s and '50s where the federal government was enforcing the Federal Fugitive Slave Act under the Fugitive Slave clause of the Constitution. And even at the sort of height of that federal enforcement of the regime of slavery, the court said, well, you know, we can't compel state officers to do this. It's going to have to be federal officials. And several states passed what were called personal liberty laws.
There's a famous instance in Wisconsin in 1854, where a man who had been enslaved but had self-emancipated and gotten to Wisconsin is seized and he's liberated from jail by an anti-slavery states' rights mob, which feels like, wait a minute, that's scrambling all our associations, but they make these arguments about state sovereignty, and they say, these are the constitutional safeguards of freedom as old and sacred as constitutional liberty itself. And so the notion that liberals today are kind of opportunistically using states' rights is actually not true. The principle has been there and has been used in many cases by abolitionists and people who were trying to say, hey, we need to have emancipation and freedom broadly.
RASCOE: That's Alison LaCroix, a University of Chicago law school professor and historian. Thank you so much for joining us.
LACROIX: Thank you. Transcript provided by NPR, Copyright NPR.
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