Here is a national fetal rights policy!
Photo: Alex Wong / Getty Images

Right now, the two main parties in the United States are polarized on the role of the federal government. Democrats, as has generally been the case since the civil rights era, favor federal activism to establish certain rights and conditions of life at the national level. Republicans have increasingly adopted the state rights posture against which the GOP was originally founded in the mid-19th century.

This has been the backdrop for many of the great political and legal battles of 2021. Democrats, who have a triumph in government in Washington, struggle to impose or re-impose national standards in areas ranging from voting rights health care through income maintenance. Meanwhile, Republicans are using every tool available to protect the independence of state governments they control, as GOP-dominated federal courts strive to dismantle the rights guaranteed to all Americans. This dynamic will likely become even more evident in 2022, when the United States Supreme Court is expected to overturn or severely restrict the right to abortion, producing hugely disparate state policies on reproductive rights.

It really is a historic turning point, Ron Brownstein argues in Atlantic:

Since the 1960s, Congress and the federal courts have acted primarily to strengthen the bedrock of basic civil rights available to citizens in all 50 states, a visible model on issues ranging from the dismantling of Jim Crow’s racial segregation to the right to l abortion to the authorization of the same -sexual marriage. But now the offensives of Red state governments and GOP-appointed federal judges are poised to reduce those common standards across a range of issues. The result in the 2020s could be a dramatic erosion of common national rights and a growing rift – a “great divergence” – between the freedoms of Americans in the Blue States and those in the Red States.

But it would be a mistake to assume that this is the “new normal” in American politics, with Democrats perpetually attempting to extend their policies to those living in the Red States and Republicans focusing on states under. their control and implicitly accepting that they have little control. on what is happening elsewhere. If Republicans get their own trio of government – which could happen as early as 2024 – they’ll be tempted to let go of their passion for state rights and impose the policies they favor nationally, a development Brownstein says. calls it the “darkest scenario for Democrats”. Here are some types of federal laws and regulations Republicans could very well pass in this scenario, which would limit rights even in blue states.

reversal Roe deer v. Wade and the return of abortion policy to the States has long been a primary goal for an anti-abortion movement that has formed a strong partnership with the Republican Party. But the ultimate goal, inscribed in the GOP platform since 1980 – is a right to “fetal personality” established by the federal government which prohibits any state from authorizing abortion. And there are many signs that this prospect could become dominant in conservative circles once the great white whale of Roe deer was harpooned. An important indicator is the recent omission of exceptions for rape and incest many state abortion bans (including Texas and Mississippi laws currently before the Supreme Court). These exceptions were once considered politically mandatory and required the completion of pregnancies caused by rape or incest. remains very unpopular.

Second, the prospect of elevating the personality of the fetus to the rank of federal constitutional law is still remote, given the extreme difficulty of passing even popular constitutional amendments and the ground that even a conservative Supreme Court should cover before it does. examine. But a federal law imposing human rights on states is entirely achievable if there is a Republican trio in Washington that first removes the obstacle imposed by Senate obstruction (see discussion below).

As of 2013, after a conservative Supreme Court majority eviscerated the main enforcement provision of the 1965 Voting Rights Act, Republicans quickly abandoned the commitment to federal voting rights that most of them (outside of the Deep South) had embraced since the Eisenhower administration. This became most evident in 2021, when only one Republican in the Senate – Lisa Murkowski – was willing to support John Lewis’s Advancement of Voting Rights Act, aimed at restoring the voting rights provisions that Republicans once supported almost universally (for example, in 2006, when Senate Republicans all voted in favor, and George W. Bush then signed, a VRA extension).

But what seems to be gaining momentum, thanks to encouragement from Donald Trump and some conservative ideologues, is the idea that America needs federal legislation to solidify “electoral integrity.” This could include banning state laws expanding access to the ballot through liberalized early voting (especially by mail), re-emancipation of ex-criminals, and simplified or automatic voter registration. Likewise, Republicans are showing signs of preference for standardized election administration rules to prevent a repeat of what the folks at MAGA see as the theft of the 2020 presidential election by Democratic state and local election officials. . It is no coincidence that two of Trump’s closest allies in Congress, Senator Josh Hawley and Congressman Mike Kelly, introduced the Protect Election Integrity Act of 2020 just after the last election to address these two alleged problems.

One of the most important but under-discussed political developments of the 21st century has been the gradual abandonment of republicans for their once strong support for objective standards for public schools. George W. Bush’s No Child Left Behind legislation was one of the initiatives that produced the strong Conservative backlash that in turn created the Trump-era Republican Party. And by the time the Core Education Standards initiative, originally led by Republican governors, bore fruit in the 2010s, it already had become anathema to most conservatives.

Part of this trend undoubtedly stems from growing Republicans’ support for publicly funded private education (including the home schooling option that conservative Christians have increasingly embraced). But more recently, even grassroots Republicans who still use public schools have become so hostile to teacher unions and the “education bureaucracy” that a party-wide “parental rights” movement has mobilized both those who want public funds to go directly to parents. to use for private and home schools and those who want to control what (and how) public schools teach.

Because the parental rights movement views state and local education authorities as inherently untrustworthy, there is no particular reason for its Republican allies to value state rights or local autonomy in education. Inevitably, if they are able to do so, it is very likely that Republicans in Congress and a future Conservative administration will embrace parental rights nationwide with legislation to prevent states and localities from monopolizing public funds or from monopolizing public funds. educational material that conservatives find objectionable (most obviously, on the subject of racism, but also on religious targets as conservative as sex education and evolution). GOP administrations for years have promoted federal learning voucher programs as a means of undermining the funding of public schools; a broader attack on teacher unions and “bureaucrats” is inevitable.

Perhaps the most firmly established area of ​​federal right-wing activism is that of efforts to anticipate national and local policies viewed as hostile by the GOP business community, which invariably puts pressure on their friends in Washington. to protect them from the regulators of the blue states.

Federal climate change activism was fully displayed under the Trump administration, particularly in its wide-ranging war in federal courts against California’s anti-pollution policies. Given the emergence of climate change both as an existential crisis for much of the GOP’s business base and as a cultural issue for MAGA activists, you can count on future wars against state climate initiatives. Washington blues when Republicans are in full control.

The feasibility of right-wing federal activism, of course, comes up against one of the same key hurdles Democrats currently face: Senate filibustering.

Mitch McConnell has been adamant in his defense of obstruction, which currently gives him the power to veto any Democratic initiative that is not wrapped in a workaround like reconciliation. It might sound like a guarantee against filibuster reform once the shoe is on the other foot, but I wouldn’t bet on it. We have largely forgotten that Donald Trump original beef with McConnell was the Kentuckian’s refusal to kill the legislative obstruction in 2017 when Republicans attempted to enact a repeal of Obamacare, among other conservative policies backed by Trump. Trump has repeatedly denounced McConnell’s move, until Republicans’ loss of the House in mid-term in 2018 made the issue largely moot.

Who knows if Mitch McConnell, who is 79, will survive as the Republican leader of the Senate until a hypothetical GOP triumph in 2025. Either way, there is no doubt that Trump’s influence on his party continues to grow, and given McConnell’s very big deal (and cynical) approach to doing his job, he could easily flip-flop on filibuster if Trump demanded it (just as he reversed on the admissibility of Supreme Court confirmations in the presidential election year when Trump needed them in 2020). Indeed, looking at the list of issues on which Republicans, and particularly Trump, may soon want sweeping federal action, the chances of mainstream obstructionism surviving the next Republican trifecta are almost nil.