This time it’s the SCOTUS conservatives’ ruling against workers’ common law right to litigate as a class. But it keeps happening that the Republicans are empowering states to take up the slack on issues big and small.
One of the unmentioned features of the revocation of the right to sue employers for wage theft is that states are victims too. They lose taxes when wages aren’t paid. They may even have a right of eminent domain on the causes of action in arbitration on behalf of employees, which would be a novel turn of law.
When President Trump fled from the Paris agreement, the liberal states stood up. When he uses ICE to attack undocumented workers, the states stood up. On the travel ban and on the right to pee. Up and down the line, they keep pushing the Democrats to take up the slack.
You must understand that power is a fluid. Where it is blocked by a dam, be it gridlock in the Congress or indifference to sanity in the White House, it will flow elsewhere.
With legislative stagnation for so long, we have long recognized the concentration of power in the executive and the dangers that poses. But it is entirely expected. If Congress will not legislate, then the limited powers of executive actions will be stretched to their limits.
And same with judicial powers. The worse that inaction bitrots the law, the more that judges have to intervene to account for equity.
But it’s different with the states. They have their own trilateral governments with their own laws and politics. And to some extent they are in competition against other states. So by pushing a wholly partisan agenda, President Trump is handing wads of capital to places like New York and California, to spend at their leisure.
A less direct example is the inaction in West Virginia, which led to a teacher’s strike for better treatment. That has now spread to other states. What does it have to do with Trump? It’s at least part of the climate of demonstration that his presidency has fomented, the spirit of Parkland and the Women’s March, that lends the nerve to teachers to finally say enough.
It’s the nomination of someone like Betsy DeVos as Secretary of Education. But it’s also the hopelessness of the current administration. Things aren’t getting better for teachers, and the current administration probably wants them to teach in coal mines, which is all the more reason to take action now, before they hand out the hardhats.