November 24, 2020 | Reading Time: 4 minutes
Federalism saved us
Decentralized power stopped Trump's coup d'etat.
The US government “ascertained” Joe Biden’s victory on Monday night. That means the president-elect can get on with the business of building a new administration. The move came after Emily Murphy, the head of the General Services Administration, found the political cover she needed to authorize his transition team. Donald Trump has not yet conceded, but in permitting a peaceful transfer, a source told the Post, “He basically just conceded. That’s as close to a concession as you will probably get.”
It’s Murphy’s “political cover” that we should be talking about. I don’t mean that she should have done what she was supposed to have done according to her sworn oath and without fear of betraying her patron in the White House. I’m referring, instead, to an argument already underway over whether “the system worked.” On the one hand are the alarmists, like me—Trump is attempting a coup d’etat! On the other hand are the skeptics. In this, the LA Times’ David Lauter is representative: “So far, predictions of [election] catastrophe have fallen flat: No violence, no huge lines, no big problems with USPS, nor mass numbers of voters with ballot errors. No efforts by GOP legislatures to interfere. Just Rudy with hair dye dripping down his face. Whimper, not bang.”
The best way of preventing tyrants from accumulating the power they desire, the founders believed, was building a structure by which power is decentralized and redundant.
I’m not going to conclude which is correct. I am going to argue that the answer to the question of whether “the system worked” is probably going to be found somewhere in Murphy’s understanding of “political cover.” Different people can define “the system” in different ways, of course, but everyone should agree that Murphy, as head of the GSA, is one of its critical cogs. We must look, therefore, at the forces culminating in her decision—on Friday, she said—that partisan loyalties were no longer sustainable.
I can’t touch on them all, obviously, but I can single out one: federalism. That’s the idea that shaped the founders’ thinking, and therefore, their framing of our system of government. The best way of preventing tyrants from accumulating the power they desire, the founders believed, was building a structure by which power is decentralized and redundant. Most recall the separation of powers at the federal level—the executive, legislative, and judicial branches. Some forget power is also split 50 ways, with each of the states having power, each county within each of the states having power, and each municipality within each county within each of the states having power. All of this is highly inefficient, but high inefficiency is the point. The United States is a sovereign entity, but so are its moral, legal and constitutional components.
Here’s the tip jar! Put something nice in it!
I think federalism was central to the creation of Murphy’s “political cover.” The president’s legal scheme for usurping the will of the people was running out of gas last week. That much was apparent. In state courts, the evidentiary standard is by necessity higher than it is in the court of public opinion. Baseless assertions are punishable by law. Even as Trump’s attorneys alleged widespread systemic voter fraud in front of television cameras (primarily Fox), they could not make the same allegations in front of judges. Over time, one lawsuit after another was getting tossed out of court. By the middle of the week, Trump knew that gambit was doomed. That’s why he changed tacks. He tried getting election officials and state lawmakers to crown him king.
That, too, ran into trouble. State election officials are bound by state law. (It is a felony in Michigan, for instance, for a member of the state board of canvassers to refuse to certify votes.) State legislators are doubly bound, you could say—by the law and by politics. Trump wanted GOP lawmakers in Michigan to assign their own slate of electors in order to usurp the will of the people. But that risked legal jeopardy. More importantly, that risked going to war with a Democratic administration with the legal authority to assign electors (who were also bound by the law). Trump wasn’t just asking them to side with him. He was asking them to commit political suicide.
The outcome in Michigan has been clear since last week. A group of CEOs said Monday morning Trump must end his 16-day stand-off with the republic. So did a group of GOP national security types. So did a handful of Republican Senators. By Monday afternoon, Michigan certified its votes. That gave Biden the electoral votes he needed. (Pennsylvania and Nevada certified their votes today). That gave Murphy the cover she needed. That is, federalism did—it established a reality the Republicans, including Murphy, could no longer deny. She “ascertained” Biden’s victory that night.
Federalism didn’t save us by itself. If Biden’s margins of victory had been narrower in Michigan, and elsewhere, I have no doubt the Republicans would have stood by while the president and his attorneys found perfectly legal ways of stealing the election. To the extent that federalism saved us, it was subordinate to the integrity of principled leaders (like Georgia’s beleaguered Republican secretary of state) and to the historic turnout on the part of American citizens who took matters into their own hands. We must have faith in democratic institutions. Our “system,” even if it “worked,” is in desperate need of reform. For now, however, let’s celebrate having faith in ourselves.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.