American policy is splitting, state by state, into two blocs

This will have profound implications for the union

TO UNDERSTAND THE future of America, don’t head to Washington, DC. Instead, talk to the governors of its most conservative state, Mississippi, and its most progressive one, California.

Bespectacled and calmly confident, Mississippi’s Republican governor, Tate Reeves, is on a high. It was his state’s 2018 ban on abortion after 15 weeks of pregnancy that returned the issue to the Supreme Court, setting the stage for the reversal of Roe v Wade in June, a decision which gave all state governments the freedom to decide their own abortion regimes.

In August, at the Conservative Political Action Conference in Dallas, Mr Reeves boasted of his state’s other bans: on vaccine mandates; on teaching critical race theory; on transgender students taking part in school sports on the basis of the gender with which they identify. “I think Mississippi has led on social and cultural issues for years,” he says, and he plans to keep that lead. Though he declines to say which policies he and the Mississippi legislature will target next, “there will certainly be opportunities for us to do [more].”

Some 2,700km (1,700 miles) away, California’s governor, Gavin Newsom, is as depressed as Mr Reeves is upbeat. “It’s the great unravelling,” he says. “All the progress that I’ve enjoyed in my 50-plus years, all being unravelled, in real time.”

Californian Democrats are reasserting the liberal values he sees threatened. A law Mr Newsom signed in June protects people who get or facilitate abortions in California from lawsuits filed in states where abortion is banned. He recently began dangling tax credits in front of companies which might be considering moving out of states that impede reproductive, gay and trans rights. California is also considering declaring itself a “sanctuary state” for trans-identifying children, shielding them from court actions by states that penalise surgery aimed at aligning their bodies with their professed identities.

Mr Newsom does not see this as differentiation. He sees it as active defence. “I want to punch the bullies back,” he says. “I don’t like what they’re doing.” He has used campaign funds to throw those punches. “I urge all of you living in Florida to join the fight or join us in California where we still believe in freedom,” he said in a TV ad which aired on the opposite coast: “Freedom of speech, freedom to choose, freedom from hate and the freedom to love.”

There is, however, one thing that unites Mr Newsom and Mr Reeves. They both believe the federal government receives too much attention. Increasingly, policies that matter in people’s lives are originating in the states.

United States, ideology of state policies

↑ More liberal policies

Sources: “Dynamic Democracy”, by D. Caughey

and C. Warshaw, 2022; The Economist

Those policies reflect America’s growing ideological polarisation. “State policies vary more than they ever have before,” says Chris Warshaw of George Washington University, co-author of a forthcoming book, “Dynamic Democracy”. As states go in different directions on social and economic policy, the consequences will be deeply felt by all Americans, regardless of their place on the political spectrum, with implications around the world.

To quantify the divergence among states, Mr Warshaw and Devin Caughey of the Massachusetts Institute of Technology analysed 190 policies from the 1930s to 2021. On the whole, states have become more liberal. They have unwound, for example, racial restrictions, bans on women serving on juries and laws criminalising sodomy.

These trends are true of the states in general. Those likely to vote Republican in presidential elections are becoming more conservative in terms of state poli­tics; the same, broadly speaking, holds for Democrats, though the effect is only seen in more strongly Democratic states.

United States, ideology of state policies, by support for presidential candidate

Sources: “Dynamic Democracy”, by D. Caughey and C. Warshaw, 2022; The Economist

Consideration of abortion alone would seem to make Mr Warshaw’s prediction of more divergence a sure thing. Roe v Wade stopped states from banning abortion prior to fetal viability (around 24 weeks). With Roe overturned, 12 states now have an outright ban, and two ban it at the sixth week of pregnancy. When all the states have responded to the overturning of Roe, it is expected that half will have enacted bans or severely curtailed access.

Why do people break up?

Some in the other half are passing laws to codify abortion rights or protect health-care providers. Connecticut has expanded access by allowing physician assistants and nurse-midwives to perform abortions. In August Kansans defeated a proposed constitutional amendment restricting abortion. There will be measures on abortion on at least five state ballots this year, a record. In two of them, California and Vermont, voters are expected to enshrine reproductive rights in their constitutions.

But there is more than reproductive rights at stake. Guns are another battleground. So far this year ten states have imposed new restrictions on the purchase or carrying of firearms. Meanwhile, states with Republican governors and legislatures are pushing for fewer restrictions. Many have embraced “permitless carry” laws, which remove all restrictions on gun-owners being armed in public. In June Ohio became the 23rd state to allow this. The same month, its Republican governor, Mike DeWine, signed a law lowering the number of hours’ training that teachers require if they are to bring guns into classrooms from 700 to 24.

The treatment of undocumented immigrants is a third area of divergence. Enforcing immigration law has generally been taken to be the prerogative of the federal government. Increasingly, though, states are changing the experience and outcomes for their undocumented residents. Through various laws, California has “de facto legalised” undocumented immigrants, says Ken Miller, a professor at Claremont McKenna College. In June it became the first state to start offering Medicaid, the government health-insurance scheme for the poor, to all low-income adults regardless of immigration status.

Texas is pushing in the opposite direction. Its governor, Greg Abbott, has declined to expand Medicaid to any more low-income Texans, let alone non-citizens. He has ordered state police to start bringing unauthorised immigrants back to the border. Mr Abbott has also said he wants to stop paying for undocumented children to attend public schools. What the children who do go to school must be taught (such as ethnic studies in California, or African-American and Latino studies in Connecticut) and must not be taught (such as critical race theory in a number of states) is a whole other story.

Another area where state policies are starting to have national impact is that of voting and election administration as it relates to early voting access, voter ID requirements, mail-in voting and whether felons should be re-enfranchised. In 2021, 29 states expanded access to voting by mail, while 13 states restricted it. Many Republican-dominated states are taking aim at election administration, for example by shifting oversight authority away from non-partisan bureaucrats to political actors. This could complicate states’ certification of election results.

America’s national identity as a collection of states is written into the country’s very name. The 13 colonies-turned-states were wary of federal power subjugating their own. They needed to be assured of autonomy if they were to ratify the constitution. That need was most acutely felt when it came to the degree of autonomy slave states felt they needed for their own race-based subjugations, but the issue was broader than that. The founders thought a federal republic of distinct and diverse states would be protected from the spread of dangerous zealotry. As James Madison wrote, “The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states.”

Then turn around and make up

The federal model that was enshrined in the constitution is not unique. Australia, Canada and Germany have similar architectures of power. But the American model has particular features, perhaps most notably its tenth amendment, which explicitly confers to the states “the powers not delegated” to the federal government.

Countries like Canada and Australia are more resolved in what dominion the federal government can enjoy, according to Don Kettl, professor emeritus at the University of Maryland School of Public Policy. In America, by contrast, “There has never been true stability in the relationship between states and the federal government.”

One way to think about the state-federal relationship is as a tug-of-war. For most of the country’s history, states have had the rope pulled over to their side of the field. In 1861, fearing that the pull on the rope from the federal government was getting too strong, the states of the South went so far as to secede. When they returned to the Union after the civil war the slavery they had allowed was indeed prohibited by the constitution. But the states of the South and North alike remained empowered.

The Great Depression, and President Franklin Roosevelt’s belief in the necessity of mounting a strong, national reaction, saw a movement in the opposite direction. The New Deal was the start of half a century of a more invigorated federal government. The second world war reaffirmed national purpose; the successes of the civil-rights movement came at the explicit expense of what state governments in the South considered their rights. Other federal investments, regulations and court cases followed, standardising welfare programmes, the drinking age, environmental protections and more. America became more uniform.

Political scientists say the 1980s was the point when the tug-of-war reversed itself again. Ronald Reagan set about returning power to the states in what he dubbed “new federalism”. In the 1990s, when 60 years of almost continuous Democratic control of the House of Representatives came to an end, this fell into step with a new national polarisation.

Good or bad

It was only after the stalemated presidential election of 2000, when America spent weeks staring at two-tone technicolour electoral maps on cable-news channels, that people first began to speak of red states and blue states. It proved a telling shift, an easy way to essentialise political distinctions. During Barack Obama’s administration red states began tugging hard on the rope. Some rejected federal policies like the Affordable Care Act. State attorneys-general also started taking on a greater role as they took their battles against Washington to court. Texas became the chief judicial resister.

At that point the increase in states’ willingness to use their rights could be seen in a specific partisan frame: a red arrow against a blue source of centralised power. But the years of Donald Trump’s presidency saw a similar, inverse strategy of resistance by the blue states. California became the centre of resistance and crafted its own policies in response to Washington, DC, including on climate change and immigration. The willingness of state governments to take action against the party in federal power became one of the few remaining bipartisan aspects of American politics.

The covid-19 pandemic, in which states were empowered to set their own policies, further underscored how different states’ paths could be, with blue states favouring mask and vaccine mandates and business closures, and red states opposing them. Covid also pushed states apart, as they took a side in a national battle over whether to prioritise economic or public health. Kevin Stitt, the Republican governor of Oklahoma, gives covid-19 and the various political reactions to it as part of the reason why “there has never been a bigger difference between a blue state and a red state”.

The differences go well beyond just hot-button ideological issues and rules on voting. Take economic policy. States have long differed in their tax strategies, their attitudes to unionisation and their imposition of regulations on business. In a dissenting opinion on the sale of ice in Oklahoma City, Louis Brandeis, a Supreme Court justice, wrote in 1932 that “A single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The pleasing metaphor took hold. For much of the period that followed, the ability for states to experiment in economic matters continued to be seen as one of the federal system’s strengths.

Today the range of economic policies being tested in the states’ laboratories has expanded to include minimum wages, paid sick leave, the categorisation of certain types of formerly freelance workers as employees in response to the growth of the gig economy, and more. Benefits and protections vary significantly based on one’s state of residence. Policies to encourage the fight against climate change and reduce its costs are particularly divisive. In August California announced it would ban the sale of petrol-powered cars from 2035. In July West Virginia said it would stop doing business with five major banks, which have been critical of coal usage.

For businesses that operate on a national scale the growing variation in economic regulations creates headaches and blunts the advantage of having a large, open domestic market. There is also the challenge of tip-toeing through the minefield of social and cultural issues which politicians in red “pro-business” states are choosing to care about. In Florida this year Disney, unwilling to alienate a substantial number of its employees, opposed a bill aimed at restricting discussions of sex, sexuality and gender identity in public classrooms. As a result Ron DeSantis, Florida’s governor, revoked various privileges the company had enjoyed.

If all this diversity really could be taken as experimentation aimed at finding the best policies for all, the costs might be worth it. Unfortunately the ability for success to diffuse from one state to the rest is increasingly impaired. Jacob Grumbach, a professor at the University of Washington and author of a book, “Laboratories against Democracy”, has studied policy-sharing among states and found that “partisan diffusion” had become more common, with states emulating policy only from other states controlled by the same party. States learn from each other how to be more thoroughly blue or red, not how to better serve their citizens. Laboratories of democracy are splitting into “separate partisan ‘scientific’ communities”, he argues.

Happy or sad

If policies do not diffuse, though, people might. Recently domestic migration has favoured big red states like Texas and Florida at the expense of big blue ones like California and New York. Political pushes to the right by red-state legislatures could slow or reverse that trend; Mr Newsom certainly hopes so. If people increasingly choose states on political grounds the country will become even more divided.

That aside, there are two reasons to think that states will continue to diverge. First, they are being handed more power to set their own agenda. In his concurring opinion in Dobbs v Jackson Women’s Health Organisation, the decision which overturned Roe, Justice Clarence Thomas wrote that the Supreme Court should revisit the “demonstrably erroneous decisions” in which the due-process clause of the constitution had been applied to cases involving gay marriage, sodomy and married couples’ access to contraception in a way which took authority from the states. The Supreme Court has also given states more authority over elections, whittling at the federal Voting Rights Act of 1965.

This attitude is not entirely consistent; in the same session that it overturned Roe the court also struck down a New York gun law. There seem to be rights the court’s Republican majority wants the states to have and others it is less keen on. But the former look likely to outnumber the latter.

United States, number of state governments

under unified party control, by party

Source: National Conference of State Legislatures

A second reason to think states’ divergence will continue is because of the polarisation between the two parties and their capture of states. Today there are 37 “trifecta” states in which one party controls the governorship and both chambers of the state legislature: 23 are Republican-controlled, 14 Democratic. Thirty years ago, there were only 19. Then, less than a third of Americans lived in a state with a government controlled by a single party. Today nearly three-quarters do.

More single-party control increases policy divergence. Opponents cannot stop legislation they disagree with, and there is no incentive for politicians to reach across the aisle or appeal to median voters. Legislators worry only about competition from primary challengers and are more likely to skew to extremes.

Redistricting, which is controlled by legislatures in most states, makes this worse by further reducing political competition. During its next session the Supreme Court will rule on a case in North Carolina, determining whether state courts can weigh in on elections and redistricting, or if state legislatures should have unfettered power in such matters. If the justices rule in a way that empowers the legislatures, it could enhance gerrymandering and further diminish political competition.

The founders may have intended the borders between states as firebreaks against the “mischiefs of faction”, but state politicians’ adherence to national issues and parties have proved too infernal. A central irony about the factional fighting taking place over state politics is the degree to which its effect has been a national one. National interest groups, such as the National Rifle Association, have increased their role in getting enthusiasts in one state to press for legislation modelled on that in another. Republican groups have been better at doing this than Democratic ones, says Mr Newsom. “These guys understand bottom-up, we don’t. They’ve been in the long game, we haven’t.”

The fact that the base responds to nationally promulgated ideology helps explain why state politicians are moving to positions far beyond voters’ views and devoting time to issues of little practical import within the state. Around half of Ohioans favour some level of legal abortion; their representatives are proposing a total ban. When Mr DeSantis issued a press release announcing a bill targeting critical race theory and corporate wokeness, none of the ten examples he provided came from the Sunshine State.

David French, a conservative thinker, looked at the consequences of all this division in a book, “Divided We Fall”, published in 2020. He believes that “there are unhealthy and healthy forms of federalism”. Today’s seem firmly in the first category. As an example, he points to a proposed law in South Carolina that tries to restrict free speech around abortion, barring any website from hosting or publishing information about abortion access. “Bounty-hunter” laws, by which states give new powers to private citizens rather than to themselves, are another disturbing example. Texas pioneered this approach with a law allowing any citizen to sue abortion providers. California fired back by letting people sue gun-makers.

Where does all this disunity lead? As voters wake up to the strong influence states will exert over their lives there will be more attention paid to their politics. The American Civil Liberties Union (ACLU), for example, is diverting several hundred million dollars away from the federal level to invest in state constitutional issues and state Supreme Court-justice races (although it will not endorse political candidates). “There’s great possibility there,” says Kary Moss of the ACLU; some state constitutions provide greater protections for rights than the federal constitution.

At the same time, states seem increasingly interested in not just divergence, but conflict. In 2016 California passed a “sanctions regime” banning state money from being used for non-essential travel to states that discriminate against gay and trans people. There are now 22 states on the travel-ban list; (Mr Newsom came under political fire in June for taking a holiday in Montana, which is one of them). Regimes which restrict communication and travel between states, even if for the most part symbolically, can only make relations more acrimonious.

There will be legal conflict, too. Several states are not content just to limit abortion within their boundaries; they want to punish people out-of-state who aid and abet abortions. This seems likely to bring them into confrontation with states like California and Connecticut, which are passing new laws to protect citizens from lawsuits regarding abortion facilitated by other states. There are echoes here of the tussles between southern and northern states before the civil war. With the Fugitive Slave Act of 1850, it was decided that escaped slaves in free states had to be returned to their owners, with the help of the federal government. In interstate abortion battles, the federal government may well be forced to get involved too, at least in court.

Let’s stay together

The most extreme outcome would be if today’s disunity led again to a real possibility of secession. That remains highly unlikely. But in a recent survey of nearly 9,000 Americans conducted by researchers at the University of California, Davis, half the respondents said there would be a civil war in America within the next few years. Searches for “secession” shot up in the aftermath of the 2020 election. If 2024 sees a constitutional crisis in which states, rather than just individual politicians within them, use new powers to reject the result the voters intended, the country’s constitution, and its constituent parts, will face a serious test.

In his book Mr French lays out several scenarios for secession. When asked what the odds are of one of them actually coming true, he asserts a continued belief that the United States will stay united. “But for the first time in my life,” he adds, “I’m not certain of that.”

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