UP CLOSE: Coast to coast, resistance in California, Connecticut in the age of Trump

UP CLOSE:
Coast to coast, resistance from California to Connecticut

Published on April 18, 2017

Don’t ask California Gov. Jerry Brown LAW ’64 about “the resistance.”

Standing at the helm of a state described by The New York Times as the “vanguard of the resistance” and by President Donald Trump as “out of control,” Brown is one of the leading voices in the movement to oppose the Trump agenda.

But “resistance,” he says, is not the proper term for political opposition to the Trump administration, however passionate or broad-based that opposition might be. According to the California governor, the term recalls “La Résistance,” the underground French resistance to Nazi occupation during the World War II.

“The imagery of resistance is some kind of underground guerilla warfare or something,” he told the News in March. “That’s a metaphor. Can we be a little more literal about what it is we’re talking about?”

Others, though, embrace the notion of resistance. President and CEO of the Center for American Progress Neera Tanden LAW ’96 believes opposition is about more than just battles over individual policies. 

“I’m proud to use the term,” Tanden said. “I don’t know why one would use the term and not be proud of using it. But be that as it may, I think resistance is about opposing not just a particular policy but opposing an approach to governance.”

For Chairman of the Connecticut Republican Party J.R. Romano, however, resistance is something far more nefarious. It is a political performance for the benefit not of constituents but of the Democratic Party.

“I think that [Democrats’] rhetoric encourages their followers to be violent,” he said. “And we’ve seen it.  You’re seeing people on the left be aggressive, attack. … In liberal ideology, language is cause for assault. They believe they are justified in violently harming someone. And they’ve done it.”

In short, politicians, lawmakers and political strategists across the country have wildly different understanding of resistance.

This discrepancy raises questions: What does resistance mean? What does it look like in practice? And what does it look like here in Connecticut?

FROM THE ROOTS UP

The day after Trump was elected president, a retired attorney discouraged by the results of the election created a Facebook event calling for a women’s march on Washington, D.C. When she went to bed that night, 40 people had said they were going to the event. When she woke up the next morning, that number was 10,000.

Two months later, nearly 500,000 people descended on the nation’s capital to participate in the Women’s March on Washington, making it one of the largest demonstrations in American history. Sister marches sprung up across the globe in New York, Los Angeles, Sydney and Amsterdam, among other cities. In total, more than 4 million took to the streets worldwide.

Five officially recognized sister marches took place across Connecticut. In New Haven, over 600 people gathered on Beinecke Plaza for The Women’s March on Yale.

And citizen activism did not end with the women’s marches. Since the election, numerous groups opposing the Trump Administration have sprung up across the country. In Connecticut, groups like Women’s March CT and Action Together Connecticut have continued to organize rallies and marches in support of women’s reproductive rights, immigrants rights and other liberal causes.

Town hall meetings hosted by Connecticut’s U.S. senators, Democrats Richard Blumenthal LAW ’73 and Chris Murphy, used to draw crowds of a few hundred. Now, they are attracting audiences numbering in the thousands. In an interview with the News, Murphy said he has never seen this level of political activism since he began his political career in 1999.

He also acknowledged that grassroots activism can be a frustrating undertaking, especially in an overwhelmingly Democratic state like Connecticut, where liberal advocates often feel as though they are “preaching to the choir.”

Indeed, many have questioned whether the grassroots resistance movement will have any concrete impact on what happens in Washington.

In response, Democrats point to the withdrawal on March 24 of the American Health Care Act, the GOP plan to repeal and replace President Barack Obama’s Affordable Care Act. Republicans, meanwhile, downplay the role popular activism played in the defeat of the AHCA, instead focusing on intraparty strife.

“I think maybe the best example of how this movement has worked is around health care laws,” Murphy said. “The repeal bill was a disaster, and it was organic pressure all across the country that caused a big number of relatively moderate Republicans to come out in opposition in the days before the vote, which eventually caused the Republicans to take the bill off the floor.”

Like Murphy, Tanden credits the failure of the AHCA to Democrats. Even without the support of the conservative Freedom Caucus, she said, the bill could have passed if the rest of the Republican Caucus had united behind it. But the popularity of the ACA and Democrats’ efforts to publicize the flaws of the GOP alternative ensured House Republicans’ failure.

Jennifer Young, a conservative health care expert and co-founder of the health care lobbying firm Tarplin, Downs & Young, said she believes that citizen activism alone cannot explain why Republican lawmakers came up short.

“I think there were other more important factors in play,” Young said. “I think the major reason that the AHCA has fallen apart for now is a divide within the Republican Caucus between the Freedom Caucus members who kept increasing their level of demands and … asking for things that were in violation of the starting principles of the more establishment portion of the caucus.”

Still, Young admitted that some of those “more important factors” were themselves likely influenced by constituents’ reactions to the bill.

Joe Antos, a scholar specializing in health care economics at the conservative American Enterprise Institute, went further in his assessment.

“[The failure of the AHCA] had nothing to do with the Democrats,” Antos said. “It had everything to do with the Republicans. They hadn’t come to an agreement. Democrats weren’t involved at all. That’s obvious.”

If House Republicans had been more strategic, Antos said, they likely would have been able to pass their bill. Blumenthal’s Chief of Staff Laurie Rubiner agreed that it was Republicans’ “fecklessness” that allowed Democrats to block the AHCA. In Young’s words, watching Republican efforts to repeal and replace the ACA was “like watching a trainwreck.”

Whether or not citizen activism was the driving force behind the failure of the AHCA, Democrats believe it can have an influence in Washington.

“At the end of the day, politicians do look over their shoulder and try to understand what’s going on,” said John Podesta, counselor and chair at the Center for American Progress and former chair of Hillary Clinton’s LAW ’73 presidential campaign.

Perhaps most importantly, Podesta added, intensifying popular outcry against the administration’s actions may discourage other Republicans from stepping forward to defend the president.

Trump’s approval rating currently stands at 39 percent, according to a poll released on Friday by the Marist Institute for Public Opinion. Podesta expects that if that number falls, more Republicans will be willing to challenge the president.

“I think that ability and desire to stand up and defend the activity of the president weakens in the face of popular discontent,” he said. “I think most individuals, including people … who supported him and voted for him, are going to sort of say, ‘I’m not going to get caught on the wrong side of history.’”

LOCAL AND STATE GOVERNMENT RESISTANCE

In the minority in both the House and Senate, Democrats can only do so much to resist at the federal level. At the state level, in blue strongholds, they have far more latitude to push back against the Trump administration.

And perhaps no state takes greater advantage of that latitude than does California. With overwhelming majorities in both chambers of the state legislature — Democrats have a 55–25 advantage in the House and a 27–13 advantage in the Senate — California liberals face little state-level opposition to their agenda and can pursue policies that would be politically unfeasible in most states.

The California Values Act is one such policy. Introduced by Senate President Pro Tempore Kevin de León, D-Los Angeles, the proposed legislation builds on the 2013 California Trust Act, which limited the state’s cooperation with federal immigration authorities.

The new bill would prohibit state and local agencies from using their resources for immigration enforcement and from complying with detainers, requests for local police to hold detainees for an additional 48 hours after their release dates while federal Immigration and Customs Enforcement determines whether to take them into custody for removal.

“I don’t believe that we should use local and state tax dollars to enforce immigration law,” de León said. “I don’t believe that local police officers should be forced to abandon their duty and to help ICE agents detain and deport hard-working, law-abiding residents. I don’t believe they should be in the business of separating children from their mothers and mothers from their children.”

In 2013, Connecticut became the first state to restrict detainer enforcement when it passed its own TRUST Act — the prototype for the law California would enact just months later. But today, the state continues to voluntarily enforce detainers despite their having been ruled illegal by numerous federal and state courts.

Admittedly, Democrats in the Connecticut General Assembly do not enjoy the same dominance that their West Coast counterparts do. While Democrats control the Connecticut House of Representatives by a seven-seat margin, the Senate is split 18–18 along party lines for the first time since 1893.

To navigate the deadlock, Senate Democrats will have to be more strategic than in the past, said Democratic Senate President Pro Tempore Martin Looney, D-New Haven.

But state Democrats have not even proposed legislation like the California Values Act. Gov. Dannel Malloy in February sent guidance memos to school superintendents and police chiefs reminding them that they are not obligated to enforce federal immigration law. But Malloy’s memo is only a recommendation, though, and thus does not prevent police departments from working with ICE.

Nevertheless, according to Michael Wishnie ’87 LAW ’93, the director of Yale Law School’s Worker and Immigrant Rights Advocacy Clinic, Connecticut has stood strong under the Trump administration in protecting the rights of all of its residents.

Still, he said, there are a number of ways the state could do better. For one, Connecticut voluntarily shares more information with ICE than it is required to under state law. Sharing criminal records is understandable, Wishnie said, but the state also shares civil records.

The California Values Act would outlaw such unnecessary information sharing, but Connecticut has yet to follow suit.

On climate change, too, California leads the way. Under the 1970 Clean Air Act, the federal government granted California the ability to request waivers allowing it to impose vehicle emissions standards more stringent than those enforced nationally. The CAA also provides that other states can adopt California’s stricter standards. Currently, 12 states, including New York and Pennsylvania, have chosen to do so.

With just one exception, the federal government has always granted waiver requests. Now, the Trump administration is threatening to withhold California’s waivers.

“This administration has sent every signal that they plan not to authorize it,” de León said. “So that we view and perceive as a clear and present danger and risk for the health outcomes of our children who may breathe dirtier air because of the rolling back of these types of regulations.”

Despite threats from Washington, the California Air and Resources Board has moved forward with its stricter vehicle emissions standards for the period between 2022 and 2025.

Connecticut, on the other hand, has big plans but has not yet taken concrete action. The Environment Committee of the General Assembly is currently considering a carbon tax, which would begin at $15 per ton and increase by another $5 each year, but the proposal has drawn considerable pushback from the state’s business community.

State Rep. Matt Lesser, D-Middletown, said he does not know if he and his Democratic colleagues will pursue the carbon tax.

As Connecticut pushes back against Trump administration policies at the state and local levels in a number of ways, California is gearing up for head-to-head battle. In preparation for these coming fights, the California legislature went so far as to hire former U.S. Attorney General Eric Holder to serve as an outside legal counsel.

“We’re not looking for a fight,” de León said. “If we had our druthers, we wouldn’t fight the new administration … but that being said, once we deem that the current admin is a threat to our economic prosperity, we have to do everything in our power to protect our economic prosperity and our values.”

Where Connecticut excels is at the federal level. Since Trump took office in January, the state’s U.S. senators have emerged as leading voices of opposition to the Trump administration.

Blumenthal was especially active in the ultimately unsuccessful fight to block Neil Gorsuch’s confirmation to the Supreme Court. The senator made national news when Trump targeted him on Twitter for revealing that Gorsuch was “disheartened” by the president’s recent attacks on the judiciary.

In response to each of Trump’s executive orders on immigration, Murphy introduced legislation to block the order by withholding the necessary funding. His questioning of Secretary of Education Betsy DeVos went viral on social media after DeVos said guns should be allowed in certain schools due to the risk of grizzly bear attacks. And he mocked Speaker of the House Paul Ryan’s PowerPoint presentation in support of the AHCA with a PowerPoint of his own enumerating the bill’s deficiencies.

Earlier this month, Murphy used the profusion of donations he has received in recent months to establish Fight Back CT, a campaign to coordinate opposition to the Trump administration and congressional Republicans.

Leading Democrats have taken notice of the Connecticut Senators’ assumption of greater leadership within the party.

“Murphy has been somebody who has taken to the airwaves and kind of formulated the argument,” Podesta said. “Both he and Blumenthal have risen from a space where they were kind of part of the crowd into much more of leadership voices.”

Democrats in the Connecticut General Assembly have also admired their U.S. senators’ recent work. Despite being in the minority, Looney said, Blumenthal and Murphy have been effective at highlighting flaws with Republican policies.

In an interview with the News, Murphy acknowledged the opportunity presented by the “exceptional moment” now in American history.

“I think that our delegation has the chance to show some real national leadership,” he said. “I hope that people in Connecticut can see their delegation stepping up and trying to be the leaders of the choir, not necessarily just members of it.”

BEYOND BORDERS

For California, resistance extends beyond state borders. More than any unilateral action the state could take, de León emphasized the need to build interstate coalitions.

“Engaging other states is an important instrument,” he said. “Like-minded states [can] trade ideas and policies and perhaps file briefs together … These are extraordinary times that require extraordinary action.”

Brown believes these partnerships can even extend into the international sphere. In 2015, he helped found the Under2 MOU, an international coalition of subnational governments devoted to limiting global warming to less than two degrees centigrade.

Like de Leon and Brown, Los Angeles Mayor Eric Garcetti stressed the importance of cooperation to resistance efforts, saying that recently he has spent the majority of his time working to build coalitions between cities.

Just weeks after the election, he wrote a letter calling on the then-president elect to partner with cities to address the threat of climate change. More than 70 mayors from 26 states and the District of Columbia had signed the letter as of Feb. 14, 2017. Garcetti also joined with Chicago Mayor Rahm Emanuel to coauthor a letter to Trump on immigration and led the first-ever Cities’ Day of Immigration Action, an effort to bring together law enforcement, faith leaders, legal advocates and community organizations across the country in support of immigrants.

By banding together, Garcetti suggested, cities can exert an influence on the national stage.

“I think that helps that not just be a local story but a national story, and remind the White House and Capitol Hill where the power in this country resides, which is near the periphery, not in the center,” he said.

Although New Haven Mayor Harp pays close attention to initiatives introduced by other cities and has staff members on intercity policy calls, she said, her focus is more local. She was not among the approximately 70 mayors who signed on to Garcetti’s climate change letter.

According to Harp, most of the work New Haven can do can be done at a local level. In the coming weeks, the city will distribute family preparedness guides across New Haven in an effort to teach undocumented families their rights. Los Angeles, by comparison, has established a $10 million fund to provide legal services to immigrants who are facing deportation and cannot afford to hire their own lawyers.

In legislative battles and matters of grassroots activism, Connecticut lacks the size and clout to match the influence of a state like California. In the legal arena, though, power is not proportional to population.

“Some of the greatest historical battles in America have been won in a courtroom,” De León told the News. “So even a small Northeastern state like Vermont or Connecticut can play a huge role on the national body politic by litigating.”

And Connecticut’s attorney general has been active. After a Washington judge blocked Trump’s January executive order on immigration, Connecticut Attorney General George Jepsen and 15 other attorneys general filed an amicus brief in support of that ruling. He also joined a coalition of 23 state attorneys general and city chief legal officers to oppose the president’s executive order rolling back Clean Power Plan, Obama’s landmark policy to fight climate change.

Unilaterally, Jepsen filed a motion to intervene in a court challenge filed by the Alliance of Automobile Manufacturers against vehicle emissions standards.

Still, he has yet to exert significant influence on the national legal stage, especially in cases relating to immigration, according to Wishnie.

“He has been supportive of many efforts to resist Trump, but to my knowledge he has not really led those efforts,” Wishnie said. “[Jepsen has] not led the fight there in the same way that the attorneys general of Washington state or Hawaii have done. …  Connecticut has stayed a little bit more passive.”

Wishnie acknowledged that the travel ban cases centered on international airports, so it is understandable for Connecticut to take a back seat to states with significant international air traffic. On future cases concerning issues like the federal government’s ability to withhold funds from so-called sanctuary cities, though, Wishnie said he hopes Jepsen will become more of a leading voice.

And he will have ample opportunity to do so. Many of the most consequential battles of the resistance will likely be decided in the courtroom.

If the Trump administration rescinds California’s waivers under the Clean Air Act, the state will almost certainly sue. Likewise, when the administration begins rolling back the Clean Power Plan, Jepsen said, the move will be met with legal challenges.

Even if Republicans fail to pass new health care legislation, Democrats like Podesta and Tanden speculate that Secretary of Health and Human Services Tom Price will try to sabotage the ACA from within. Here, too, legal questions abound with regards to how much flexibility Price has in enforcing the law.

Another major legal question revolves around the federal government’s capacity to withhold funding from states that do not follow its directives. Throughout his campaign, Trump threatened to defund sanctuary cities, and in March, United States Attorney General Jeff Sessions said he would deny grants from Office of Justice Programs to cities that refused to comply with federal immigration laws. On this matter, Garcetti said he is confident that Los Angeles and other cities stand on “strong constitutional ground.”

And there remains the question of the legality of Trump’s two executive orders on immigration.

Despite the vast number of legal challenges ahead, Jepsen called for a cautious approach.

“We need to be smart and we have to be strategic when we approach these issues,” Jepsen said. “If a case gets dismissed, Trump’s not going to say it got dismissed over procedural matter; he’s going to claim it as a victory on the merits. And so we have to be very careful not to hand Donald Trump cheap victories, easy victories by miscalculating our chances on a specific legal challenge.”

THE LIMITS OF RESISTANCE

Even for liberal bastions like California and Connecticut, resistance has its limits.

Last week, Trump said he must address health care before moving on to tax reform. Just like the first time Republicans tried to pass the AHCA, Democrats will do everything in their power to block it. If the bill passes, though, there may be little that states can do to mitigate its effects.

California currently receives $22.5 million in federal funds under the ACA, and Brown thinks it is unlikely the state could afford to cover the costs if those funds dry up.

“As far as what we’re able to do, we can’t replace exactly [the health care coverage that would be lost if the ACA were repealed],” Brown said. “Cities … would not be able to replace that without a massive tax increase … I don’t say it’s impossible, but I’d say it’s very unrealistic.”

According to an analysis by the Connecticut governor’s office, the AHCA could cost the state over $500 million in 2020, when the bill’s major provisions would take effect. Already facing a $1.7 billion budget deficit for fiscal year 2018 in what is the just the latest chapter of a years-long fiscal crisis, the state would be hard-pressed to offset those expenses.

Also last week, the U.S. Senate voted to allow states to withhold Title X funding from health care providers that offer abortion services, such as Planned Parenthood. In a blue state like Connecticut, the move is unlikely to change much. But in Republican-controlled states, it could spell the loss of tens of millions in funding for Planned Parenthood and a number of other family planning groups.

For Democrats in blue states, it is unclear how much there is to be done to push back against the law. Even the possibility of a legal challenge is uncertain, according to Jepsen.

“[In the case of] something like defunding Planned Parenthood, which I find highly offensive … It’s not clear yet what standing we would have from a legal standpoint to intervene,” Jepsen said.

He added that, when lacking legal authority, he would instead exercise the power of the bully pulpit to draw public attention to an issue. That is what Murphy hopes to do with regards to do with regards to issues like the president’s decision to no longer notify the public of new troop deployments.

In March, the president dispatched 400 marines to northern Syria and 300 army paratroopers to Iraq without a disclosing almost any information about the moves. Many see the shift away from the transparency of the Obama administration as a result of Trump’s desire to maintain the element of surprise, a point he often emphasized during his campaign.

For Murphy, this shift away from military transparency is a crisis, and one made all the more troubling by the apparent lack of public awareness.

“I wish there was more public consciousness about what’s happening in the Middle East right now,” he told the News.

In March, Murphy published a Huffington Post op-ed titled “Trump is dragging us into another war, … and no one is talking about it.” At the very least, he hoped, he could get people talking about it.

WHAT RESISTANCE MEANS

Just as in the case of health care, nobody knew that resistance could be so complicated. It occurs at rallies and marches, at city halls and statehouses, in legal offices and courts.

And to succeed, says Jepsen, it must interweave all three approaches — grassroots, legislative and legal. They are by no means “mutually exclusive,” he said.

For National Legal Director of the American Civil Liberties Union David Cole ’80 LAW ’84, they’re not just mutually inclusive but mutually reliant.

“We have a three-pronged strategy, which is lawsuits, advocacy within the legislatures and the executive branch, and … encouraging citizens to pay attention to and speak out in favor of certain basic rights and liberties,” Cole said. “You really need all three of those in order to be effective in defending liberty.”

Resistance does not have a single meaning. For Tanden, it means mobilizing across-the-board opposition to a way of governing. For Brown, it means targeted opposition to specific policies. For Harp, it means defending “states’ rights,” and for Podesta it means defending the credibility of the media and the sanctity of the judiciary.

All of that, according to Cole, begins with rallies, marches and town hall meetings. “That’s what democracy is,” he said. “And that’s where I think our salvation lies.”

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