Tag Archives: norms

When states sue the federal government



Pennsylvania Attorney General Josh Shapiro
Josh Shapiro

It seems like every few weeks, we see headlines about states banding together to block actions taken by the federal government. You might even remember former Texas Attorney General Greg Abbott quipping that he goes to the office, sues the federal government, then goes home.

How do those lawsuits take shape? How does a state decide whether to join or not? How does that impact the balance of power between federal and state governments? This week’s guest is uniquely qualified to answer all of those questions.

Since taking office in January 2017, Pennsylvania Attorney General Josh Shapiro has been involved with more than a dozen suits brought against the federal government on matters ranging from family separation at the border to EPA emissions regulations. Though Shapiro is a Democrat, he says his chief motivation in joining these suits is the rule of law and a commitment to do what’s right for people of Pennsylvania.

Whether or not you agree with Shapiro’s politics, he does present an interesting take on the role that states play as a check on the federal government. This power is a unique part of the American experiment and speaks to the power of democracy in the states.

Before the interview, Chris and Michael dive into the origins of federalism, including Federalist 51, the 10th Amendment, and the Emoluments Clause of the Constitution.

More Information

Pennsylvania Office of the Attorney General

Federalist 51

Interview Highlights

[5:12] When you took this office, did you expect yourself to be this active on federal issues?

Shapiro: I said when I was sworn in that if someone was going to try to mess with Pennsylvania that they would have to go through me. I see the constitution as giving the states broad authority. States rights isn’t something progressives have pointed to, but it is something I value. If someone in the federal system is doing something to undermine our rights, I’m going to stand up to take action.

[6:32] How do one of these suits against the federal government get started?

Shapiro: The first question is whether the action comports with the rule of law. I put aside what I agree or disagree with personally and instead focus on the law. Once we deem that an illegal action has been taken, be think about what is the best way to file an action to challenge that activity. We discuss whether or not Pennsylvania should be the lead state. There are sometimes strategic reasons why we file a suit in a particular state. What we are not doing is constructing opposition to the president just for the sake of opposing him. What we are doing is organizing ourselves around the rule of law.

[8:43] What issues or possible suits have you turned down?

Shapiro: We’ve been involved in about fifteen cases since taking office. I’m very careful about what we engage in on behalf of the people of Pennsylvania. Again, it is not my job just to weigh in whenever I personally disagree with the president. It is my job to weigh in when the rule of law is being threatened.

[9:31] What is the timeline for one of these cases?

Shapiro: I spend the majority of my time going around to differnt places listening to people. I think I have a good feel for where the people of the state are. I don’t poll test these issues. Instead, I try to do what is right and what adheres to the rule of law.

[10:36] Under Obama, we saw a lot of states file suits against the federal government much like what is happening now with Trump in office. Do you think this goes to the partisan nature of government?

Shapiro: I would actually push back on that a little. Most of what I do is bipartisan. It’s just that the media usually doesn’t report that. The vast majority of the actions we take are really bipartisan.

[12:34] President Trump has stated that he thinks the attorney general office should be more of a political one. What are your thoughts on that?

Shapiro: We are above politics in this office. I’m a proud Democrat. People know I have progressive leanings. They knew that when they elected me. However, we check our political views at the door everyday when we come into the office. If you look at our track record, we’ve held democrats and republicans accountable. We do our job in a way that the people of the state can be proud that the justice system is fair. We are diverse in both appearance and thought.

[15:23] What does the term “rule of law” mean to you?

Shapiro: It is the very foundation of everything that I do. It helps you be above politics. My job is to understand the law, apply the facts and evidence, then make a decision in the best interest of the people of Pennsylvania.

Shapiro: The tenth amendment makes it really clear that states have a role to play in our democracy. I believe that if the federal government is making an overreach into our state business, then I’m going to be a shield to guard against that. However, states have also at times been the thing infringing upon rights. However, more often than not, they are expanding rights. The fight for marriage is a perfect example of that. Justice Brandies spoke eloquently about states being the laboratories for democracy. That still holds true today. States need to be a shield against overreach and a sword in promoting the rights of their citizens.


The constitutional crisis episode



This is one we’ve been wanting to do since we started the podcast. The term constitutional crisis is frequently used but often misunderstood. Like democracy, it’s hard to define but you know it when you see it.

Jud Mathews
Jud Mathews

If anyone can provide a definition, it’s Jud Mathews, an associate professor of law at Penn State. He has a law degree and a Ph.D. in political science (both from Yale, no less). Jud says we’re not in a constitutional crisis yet, but that constitutional norms — much like democratic norms — are eroding more and more each day.

Jud also cautions against using the term constitutional crisis too loosely because of the “boy who cried wolf” problem that we’ll become so desensitized that we won’t recognize one when it actually occurs. Beyond being a legal scholar, he has made the Constitution his life’s work. He’s passionate about what it represents and understandably upset to see its force as a roadmap for the country called into question.

If there’s one bright spot to take from this conversation, it’s that there are many dedicated public servants throughout the government who are committed to upholding constitutional norms and preventing a crisis from occurring.

 


How Democracies Die author Daniel Ziblatt on the ‘grinding work’ of democracy



Daniel Ziblatt
Daniel Ziblatt

Daniel Ziblatt has done a lot of interviews since the release of How Democracies Die, the bestselling book he co-wrote with Steven Levitsky. But we asked him a question he’d never gotten before — about a line toward the end of the book when he refers to democracy as “grinding work.”

The idea that democracy isn’t easy is a central theme of this podcast. As How Democracies Die illustrates, it’s much easier to succumb to the power of an autocratic leader than it is to stand up and protect the institutions that serve as the guardrails of democracy. Ziblatt, a professor of government at Harvard, talks about how the book came about and the impact it’s had since it was released earlier this year.

This episode also starts a new feature on the podcast, where we end with a lightning round featuring our Mood of the Nation Poll questions. The poll is open-ended and allows Americans to respond in their own words to questions related to American politics. Some questions vary based on what’s going in the world, but we always ask these four:

  • What makes you angry?
  • What makes you proud?
  • What makes you worry?
  • What gives you hope?

We were very fortunate to speak with Daniel and encourage everyone to pick up a copy of How Democracies Die.

Interview Highlights

[5:40] Why did you and Steven write this book?

Steve and I, we teach together, we’ve taught lots of courses together, graduate courses on democracies and crisis, democratic breakdown and democratization around the world, I work on Europe and he works on Latin America. We haven’t primarily focused on the United States in our work, but during the course of the 2015-2016 campaign season, really the republican nomination process, we kept running into each other and talking about the tenor of the political  rhetoric.

[7:02)] Where does Donald Trump fit into all of us? Did this process of democratic erosion that you describe in the book, did it start before Trump? Or was he kind of a symptom of it?

In many ways I think that there’s a tendency to focus on Donald Trump, the spectacle of Trump and the latest offensive Tweet and whatever people respond to, but really one of the points of our book is to say that these dynamics long preceded President Trump.

[8:14)] What role do you see parties playing in this process of democratic decline?

Parties are really at the center of the story for us. One of the lessons from the book is that throughout American history there’s been around, at least in the 20th century period for which we have opinion poll data, there’s been around 30% of the American electorate that supports demagogic type of politicians.

[11:10] Can you talk a little bit more about what role you see the assault on the press playing?

In one of the chapters in our book, we lay out the strategies authoritarian inclined politicians have used around the world, and this is, again, drawing in lessons from other countries, and once in office, elected authoritarians often, we kind of have a sports metaphor; they try to capture the referees of the the court system, sideline the opposition, and go after the free press.

[13:39] One of the counter arguments to all this is that Trump is all bluster but no action and people on the left are ringing their hands over nothing. What would you say to that?

In our book we have this what we call an authoritarian litmus test, which is a set of indicators, which are questioning the legitimacy of the media, questioning elections, threatening violence or condoning violence; these are all things that candidate Trump rhetorically embraced before the election.

[18:04] You also say in the book that democracy is “grinding work” which ties back to the whole theme of this podcast, Democracy Works, so can you talk about what that phrase means to you?

It’s important to have big goals and big vision in politics, but it’s also about behaving in responsible ways. It’s a distinction between process and policy. At the end of the day, one has to remain committed to the process and forge alliances with people they may disagree with. That’s hard work and it’s grinding work.