What to Make of Congressman Green’s Prescription for Saving America
Jan 3, 2020 by David Fowler
Congressman Green hit on an issue I believe is critical to America’s future, but I want to refine his point a bit before discussing its application.
Why Federalism Can Only ‘Sort of’ Save America
Federalism will not itself save America from demise. We live in an ethical universe under the authority of its Creator. Scripture makes it clear that God judges nations and does so on an ethical basis—whether they tend toward righteousness or unrighteousness. So, federalism will “save America” only to the extent that states use it to take back issues from the morally bankrupt federal government and begin to exercise righteous judgment on those issues. It is only as that righteous judgment spreads to other states that I believe God’s present judgment on our nation might be averted.
The value of dual sovereigns is the check it provides to the states on attempts by the federal government to expand upon the limited powers given them under the U.S. Constitution, and, as said by the U.S. Supreme Court on multiple occasions, it preserves the freedom of our nation’s people.
The Value and Purpose of the Dual Sovereigns
It preserves our freedom by allowing us to vote with our feet, choosing to live in that state in which we think the right balance has been struck between the primacy of the state (the collective) and the primacy of the individual. But when Congress or the U.S. Supreme Court acts, the freedom to vote with our feet is lost; we cannot escape their edicts.
Applying the Principle of Dual Sovereigns to the Refugee Resettlement Program
The First Dual Sovereignty Problem
This issue is complicated, but dual sovereignty is the heart and soul of it.
The following summary of the refugee resettlement issue, particularly the quotations, is taken from a lawsuit filed by the State of Tennessee through its General Assembly against the federal government relative to its refugee resettlement program.
In 2007, Tennessee “withdr[ew] from the federal government’s refugee resettlement program.” But “instead of honoring Tennessee’s decision to withdraw from further participation in the federal refugee resettlement program, the federal government bypassed the state government and appointed a private organization, Catholic Charities of Tennessee, to continue the program” (emphasis added).
While it was within Congress’ constitutional powers to decide to work through private contractors rather than a state government agency, by the substitution of private contractors for state agencies, Congress “forced [the state of Tennessee] to expend substantial amounts of state taxpayer money to fund the resettlement program, even though Tennessee has ostensibly withdrawn from the program.” That congressionally imposed expenditure effectively “commandeers . . . state funds and instrumentalities through health and welfare programs and public schooling . . . ” (emphasis added).
Federal commandeering of states is a dual sovereignty, constitutional no-no. Congress using federal contractors is one thing; using them in a manner that requires the state to expend state tax dollars is quite different. When the Refugee Act was passed, it came with a congressional authorization to fund all the costs of the program for three full years.
The Second, Bigger Dual Sovereignty Problem That Created the First One
The legislature rightly picked up one of the commandeering problems that the principle of dual sovereigns is supposed to prohibit, namely, state fiscal mandates, but it, along with the federal government, appears to have missed an even more fundamental state sovereignty issue.
That issue was described well by law professor Andrew Ayers as the federal government “commandeering the state’s delegation function [which] violates state sovereignty, just as commandeering the state legislature or executive-branch officials does.”1 In other words, the state’s constitution, not the federal government, decides who is to exercise certain powers belonging to the state.
When the federal government creates a program and then designates who in state government can decide whether to participate in that program, who on behalf of state government can opt-out of a program already begun, or who or what agency in state government must carry out the federal program, an important aspect of state sovereignty is trampled on. Therein lies the problem with the federal refugee resettlement program, quite apart from the complained of fiscal issues.
After the program was created and states opted in, the federal government adopted regulations that effectively allowed a governor or the governor’s designee to opt a state out of the federal refugee resettlement program. That regulation violates the sovereignty of the people of Tennessee, who alone get to decide who in state government should make policy decisions of this nature.
Under the Tennessee Constitution, budgetary and policy program decisions are to be made by the General Assembly, not the executive branch. However, when Governor Phil Bredesen sent the withdrawal notice in 2007, the General Assembly didn’t object because it was presumably in agreement with the decision.
In an attempt to mitigate the aforesaid first breach of state sovereignty, last September President Donald Trump issued an executive order regarding the refugee resettlement program.
President Trump’s Attempt to Mitigate Federal Overreach
By it, a process was created by which a governor in a state that had withdrawn from the resettlement program could “consent,” on behalf of the state, to the federal government using private contractors in that state, which, of course, would have implications for the state budget. If a governor did not “consent,” then the governor was effectively telling the federal government the state really didn’t want private contractors to be used in his or her state to the extent permitted by federal law.
It was an attempt by the president to give states some means by which to reduce the impact on state governments of the federal law that automatically substitutes private contractors as de facto resettlement agencies in a state that has opted out of the resettlement program. In other words, it was an attempt by the president to allow a governor to mitigate on behalf of his or her state the very kinds of issues that Tennessee’s legislature had sued over.
Thus, while well-intended, President Trump compounded the existing problem, because governors can now show the consent of their state to accept private contractors and the costs associated with doing so.
The federal regulation allowing a governor to decide whether to opt in or out of a federal program is not within the federal government’s power. It is a violation of the state’s power to decide what branch of state government, state agency, or state official is authorized, under the state’s constitution, to make certain types of decisions for the state. The same can be said about the process that allows a governor to “consent” to the federal government’s use of private contractors as de facto resettlement agencies.
Applying the Principle of Dual Sovereignty to Congressman Green
Therefore, if Congressman Green and his federalism-supporting colleagues are serious about the principle of dual sovereignty and its importance to “saving America,” they should immediately seek to overturn both the regulation and the president’s executive order, which respectively allow governors to opt-out and in without permission from their state legislatures.
The federal law should allow each state’s constitution to govern who gets to make the opt-out decision, and, in Tennessee, that would be the General Assembly.
There is no doubt that President Trump’s executive order created the process by which Governor Bill Lee was authorized to do what he did right before Christmas, which was consent to the resettlement of refugees in Tennessee via private contractors. And, no doubt, the governor’s intentions were honorable and in accord not only with his own religious belief system, but also with the advice I know he got from several evangelical leaders, whom I will address in the last section.
Applying the Principles of Dual Sovereignty to the Governor
However, if I were a state legislator, I would not have been happy with his decision, though my displeasure would be tempered by the fact that the governor is, indeed, an “outsider” to civil government and not schooled in constitutional principles. Therefore, he is not as yet attuned to seeing these kinds of problems.
But his advisors sure had better be schooled in these things and make sure these things are factored into his decisions.
As to them, it should have been a dual sovereignty red flag that the General Assembly is suing the federal government, and that the legislature with whom Governor Lee must work believes its constitutional authority is already being violated by federal cost-shifting that is taking place by the federal government’s use of private contractors. This cost-shifting effectively undermines the very reason the state opted out of the resettlement program in the first place—the cost—which also was the reason the General Assembly sued the federal government.
So, it is reasonable for legislators to believe that the governor compounded the commandeering problems by committing the state’s acceptance of private contractors.
If principles of dual sovereignty are important to this administration, then, given the legal and factual background, I would have advised the governor to say something like this:
While I strongly believe as a matter of Christian conviction and conscience that it should be the policy of our state to aid those fleeing from oppression and I will advocate for that policy, there is a right way to go about securing and executing that policy for our state. In that regard, our legislative body is charged with making public policy and developing and funding our state’s budget, not the executive branch.
The Tennessee Constitution that I took an oath to uphold clearly states that “[t]he powers of the government shall be divided into three distinct departments: legislative, executive, and judicial,” and “[n]o person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.” There is no exception in the Tennessee Constitution relative to the issue before me.
The federal government has purported to give me a power that, under the state constitution, is not mine to exercise, and so, out of fidelity to my oath of office, I will refrain from exercising that power and allow the legislative body to make the policies for our state government under the constitutional charge given to it. And I will faithfully execute whatever powers are given to me by the legislature under that policy, as I am charged to do under the Tennessee Constitution.
I’m willing to grant the governor a mulligan on this, because it is the first real dual sovereignty issue he’s faced and because the legislature is not left without a remedy; it can, I think, force a reexamination of the issue. If the governor undermined the General Assembly’s lawsuit, legislators may not be as generous.
Giving the Governor One Mulligan But Not a Second
But the dual-sovereignty/federalism issue is also before him in a different context, and as far as I’m concerned, he and his advisors need to show that they now get the issue of dual sovereignty and its importance to our country’s future.
On December 19, the governor was effectively “sued” over the assumption by the Haslam administration of a power to create a de facto same-sex styled Marriage Certificate for our state, even though the legislature never authorized the executive branch to create such a certificate and even though such a certificate is supposed to be “void and unenforceable” according to provisions in Tennessee’s Constitution that are still valid.
A governor’s power over state marriage certificates comes from the state legislature. The U.S. Supreme Court may declare a “right to marry,” but it was not up to then-Governor Bill Haslam to decide how that right to marry was to be given effect; that is the legislature’s job, and after the Supreme Court’s ruling, the General Assembly asserted their right in that regard through the overwhelming adoption of House Joint Resolution 529. Here’s a link to a short video that explains what Gov. Haslam did to create a mess on this issue.
Gov. Lee has, so far, continued to issue the same-sex Marriage Certificate, and the “lawsuit” was filed to call this to his attention.
I hope Gov. Lee will not ignore the legislature a second time in trying to effect state policy without the consent of the legislature, particularly when, in this case, refusing to exercise a power he was not given is consistent with his religious beliefs regarding marriage.
In other words, I hope Gov. Lee won’t rely on his religious beliefs in regard to refugees to exercise a power Congress should have never given him and the Tennessee Constitution really prevents him from exercising, and then turn around and violate his religious beliefs in regard to marriage by exercising a power he was not given by anyone and that is expressly denied him by the Tennessee Constitution.
Lastly, I feel compelled to speak to those evangelical leaders (many who may consider themselves politically conservative) who may have urged the governor to see the refugee settlement program as a matter of evangelical care for the least of us or as a means of reaching the lost for Christ. I will not here address the issues of sphere sovereignty associated with who, according to Scripture, is responsible to care for the poor and the oppressed.
A Word to Evangelical Pastors
But I would say that Christians, in pursuit of policies in accord with their beliefs, particularly those that carry the mantle of authority as pastors, must be careful not to ignore, trample on, or run roughshod over the state and federal Constitutions by which we govern ourselves and by which we adopt and execute public policies. We cannot complain of the constitutional lawlessness of the many on the left side of the political spectrum when we engage in it ourselves.
Therefore, I would say to those who advised the governor on the resettlement issue, if you did so without including in your thoughts these constitutional issues or without couching your purely religious advice with a constitutional caveat, you gave, at the very least, incomplete advice.
Congressman Green is absolutely right about the value of federalism and the principle of dual sovereigns it embodies, but espousing values and actually governing according to them in a consistent manner, even when it undercuts the result one prefers, is quite a different thing. The challenge has been well-stated by Congressman Green. Now let’s see if we are up to the challenge.
1. Andrew B. Ayers, "Federalism and the Right to Decide Who Decides," 63 Vill. L. Rev. 567 (2018) (emphasis added).
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.