University of Miami School of Law Institutional Repository
Abstract
Federalism—the dual system of sovereignty that invests both the nation as a whole and each individual state with the authority to govern the people of the United States of America—is a foundational pillar of American democracy. Throughout the nation’s history, political crises have tested the resilience of this dual system of government established by the United States Constitution. The fundamental contradiction of slavery in a nation founded on the principle that “all men are created equal” triggered the nation’s most prominent existential crisis, resulting in the Civil War. In the years leading up to that war, the federal government’s protection of the institution of slavery, via the Fugitive Slave Acts, clashed with the personal liberty laws of the free states. These states had eliminated slavery within their own borders, and hence did not embrace federal laws compelling them to allow (or assist in) the pursuit and capture of putative slaves living on free soil. The intensity of the resistance within these states increased as the federal government ratcheted up efforts to enforce the Fugitive Slave Acts, with little consideration given to the conflicting values of American citizens living in free states.
The most crucial federalism crisis of today stems from conflicting state and federal perspectives as to immigration. The Trump administration’s “zero tolerance” approach to “illegal” immigration has been tone deaf to the mores of people who live in diverse states such as California, especially as to immigrants who are seeking asylum. The President has personally repudiated and even mocked the nation’s long-standing commitment to the legal principle of non-refoulement, which prohibits the forcible return of refugees to countries where they face serious threats to their lives or freedom. Moreover, the Trump administration’s heavy reliance on executive action to achieve its goals, rather than the legislative process, has generated policies that lack widespread support among the national citizenry, not just that of an individual state .
The United States may learn some valuable lessons by reflecting on its past, specifically the history of the federal laws that sought to force the free states to recognize slavery within their borders. Heavy-handed attempts to compel compliance with federal law tend to engender resistance rather than cooperation, especially when, in the eyes of many, the federal law lacks both moral and democratic legitimacy. At a minimum, the federal government should not attempt to commandeer California and similar states to implement federal immigration policies that are misaligned with the values of the majority of their citizens. The safety valve of federalism allows these states to decline to do so
