A new poll from the University of Virginia’s Center for Politics finds that large portions of the American public now favor blue and red states going their own ways to form separate countries. The survey results, writes political scientist Larry Sabato, highlight the “deep, wide and dangerous divides” between Trump and Biden voters, presaging a new secession movement. But the schism was already evident in the increasing number of state and local officials enacting laws and policies that ban travel and restrict commerce with other American places with governments they object to—a trend that the Covid-19 emergency has only deepened. In everything from tax policy to travel to contracting rules, a secession movement within the states has been building for years.
California recently banned any state-sponsored travel by its employees to Ohio, based on a 2016 law that imposes penalties on states that California officials deem to be discriminating against lesbian, gay, bisexual, or transgender residents. At issue is Ohio’s new “conscience clause” law, which allows a medical provider to refuse to perform certain procedures, such as gender-transition surgery, if they violate a doctor’s religious or moral beliefs. The Golden State originally passed the 2016 legislation after North Carolina enacted a bill requiring people to use public bathrooms based on their birth gender. Five other states—Washington, Minnesota, New York, Vermont, and Connecticut—joined California in restricting commerce with North Carolina. Since then, the number of laws that allegedly run afoul of California’s 2016 measure have proliferated—and so have the bans. California now restricts government-financed travel in 18 other U.S. states containing 116 million people—including both Carolinas, both Dakotas, Texas, and Florida. Most recently, California applied its restrictions to states that require transgender athletes to participate in high school sports based on their birth gender—even though prominent LGBTQ athletes such as Martina Navratilova have endorsed a similar policy.
Once states and cities embark on these kinds of prohibitions, there’s nothing to stop them from spreading. And they have. A decade ago, for instance, Los Angeles restricted travel by city employees to Arizona because of its immigration policy and urged city departments not to do business with firms in the state. Among other things, city police refused to send helicopter pilots to training sessions taking place in Phoenix, and city council members refused to attend a National League of Cities conference in Arizona. A few years later, L.A. added its own restrictions on travel to North Carolina and Mississippi over their transgender bathroom laws.
Abortion restrictions are the next target of such bans. Officials in Portland, Oregon, are contemplating boycotts against Texas over its new abortion law. This could put at risk some $35 million in business with Texas suppliers, as well as extensive travel by city officials. Plans for the ban ignited a war of words, with Texas lieutenant governor Dan Patrick tweeting, “A boycott will hurt them, not us,” and adding, “Texas’ economy is stronger than ever.”
Covid-related state travel restrictions have raised tensions. At the height of the pandemic, 27 states enacted travel bans or quarantine requirements for residents of other states. Though the policies were ostensibly based on infection levels in other places, the travel restrictions were often arbitrary, with politically aligned neighboring states like New Jersey, New York, and Connecticut allowing travel and commerce with one another despite high infection rates.
Ordinarily, the Constitution’s Commerce Clause, which gives the federal government the right to regulate trade among the states, prohibits such restrictions, but courts have recognized the right of states to impose bans during emergencies. Yet, as with lockdowns, states continually expanded their travel bans based on emergency powers, in the process voiding the intention of the drafters of the Commerce Clause for unprecedented periods. New York’s travel and quarantine rules lasted ten months, Maine’s for more than a year, and Hawaii’s for a year and a half—and counting. Governors frequently jousted over the restrictions, with officials in Florida, New York, and Rhode Island waging a war of words at various points during the pandemic.
The power of the Commerce Clause is fading in other troubling ways. State laws like California’s 2016 LGBTQ discrimination measure are designed to extract some economic toll on other states, but even more powerful economic weapons are available. One troubling trend has been the decline of Commerce Clause protections against states’ reaching into other locales for taxation of citizens and businesses, resulting in an increase of out-of-state punitive actions. For generations, U.S. courts, led by the Supreme Court, interpreted the Commerce Clause as requiring a firm to have some physical presence in a state to be subject to taxes there. But the rise of remote work and technological advances like cloud computing have prompted states to redefine what constitutes a business’s “presence,” sparking widespread poaching of tax dollars. During the mid-2000s, for instance, New Jersey revenue agents stopped thousands of trucks with out-of-state license plates and impounded them, demanding that the owners pay a steep minimum corporation tax simply because the trucks were using the state’s roads to deliver remotely ordered products from businesses that had no presence there. The practice spread to other states and became punitive. Colorado legislators even passed a resolution urging their revenue agents to target trucks from states that had pursued Colorado companies.
The Supreme Court has declined to intervene in such cases, instead urging Congress to define legislatively what constitutes a “presence.” Thanks to its partisan divisions, Congress hasn’t even come close to addressing this crucial issue. This inaction has effectively handed states a potent weapon at a time when officials see differences of opinion on issues like immigration or civil rights as grounds for intra-state war.
It’s tempting these days to see a secessionist movement coming out of the sharp divide between Trump and Biden supporters. But long before Trump ran for office, back when Biden was a grandfatherly senator and later vice president, state officials began acting as if their colleagues in other states were the moral equivalent of leaders of rogue nations like Iran. The end of policy debates and the beginning of bans, restrictions on commerce, and punitive actions against American states and localities—these trends have played a major role in fueling secessionist sentiment.
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