Amicus With Dahlia Lithwick | "States’ Rights"

Date: April 25, 2020
Host: Dahlia Lithwick
Guest: Phil Weiser, Attorney General of Colorado

Episode Overview

This episode delves into the collision of federalism, states’ rights, and the COVID-19 crisis. Host Dahlia Lithwick speaks with Colorado Attorney General Phil Weiser about the constitutional limits on federal authority during public health emergencies, the evolving role of state attorneys general, cooperative federalism, the politicization of AG races, and pressing issues around voting and civil liberties in the pandemic era. The discussion is timely, exploring both theoretical principles and the lived reality of governance amid chaos, division, and historic legal uncertainty.

Key Discussion Points & Insights

1. States’ Authority Versus Federal Oversight in the Pandemic

• Federalism and Police Power:

  • Weiser explains that states have inherent authority—so-called "police power"—over public health decisions, limiting the federal government’s capacity to dictate state responses to COVID-19.
  • Quote: “Bill Barr can’t order any state governor to decide when to end a public health emergency. The states have that authority. It’s the police power of the state.” (Phil Weiser, 00:05 & 08:49)

• Failures in Federal Leadership:

  • The lack of coordinated federal action has left states “bidding against each other for PPE and ventilators” and addressing price gouging and scams with little national support.
  • Quote: “Now in Covid, we are seeing this on steroids because the federal government's lack of leadership here is such a point of pain.” (Phil Weiser, 06:41)

2. Constitutional Framework: The 10th Amendment & Federalism

• Federalism Explained:

  • States are “independent, sovereign,” and their relationship with the federal government is one of partnership rather than subordination.
  • The federal government cannot coerce states by threatening to take away funding as a means of control.
  • Quote: “Part of what is most, I would say, insidious is the federal government tries to coerce the states to do things...but really it’s the federal government making the state do something.” (Phil Weiser, 08:49)
  • Justice Brandeis’s “laboratories of democracy” concept is invoked to champion state-level innovation.

• Separation of Powers Issues:

  • President Trump’s claim to “absolute authority to order governors to open up their states” offended both federalism and separation of powers.
  • Quote: “He was both offending...the principle of the 10th Amendment, federalism and states rights, but also, actually, weirdly, separation of powers principles.” (Dahlia Lithwick, 11:58)

3. The Expanding, Politicized Role of State Attorneys General

• AGs as Checks on Executive Power:

  • State AGs have increasingly acted as a “check on executive power,” both during the Obama and Trump administrations.
  • This has been intensified by a “less functional Congress,” forcing disputes into the courts.
  • Quote: "State AGs felt we're the ones to stand up for our Constitution." (Phil Weiser, 13:47)

• Campaigns & Politicization:

  • Weiser reflects on the “attack politics” and immense spending in state AG campaigns, acknowledging increasing polarization but emphasizing his commitment to bipartisan cooperation.
  • Quote: "We are seeing particularly the Republican Attorneys General Association...targeting races. In my race...almost $6 million spent by this outside group against me." (Phil Weiser, 17:13)

• Civility Amid Disagreement:

  • Notwithstanding policy clashes (e.g., abortion restrictions in Texas during COVID-19), relationships among AGs can remain civil and collaborative on shared issues.
  • Quote: "We have the ability to disagree but not have it burn the relationship." (Phil Weiser, 19:37)

4. Cooperative Federalism: Partnership, Not Coercion

• The Ideal Model:
  • Cooperative federalism is about voluntary state participation and innovation within broad federal frameworks on health care, environment, and more.
  • Quote: “At our best, the states and the federal government are partners...That is the spirit of cooperative federalism.” (Phil Weiser, 20:47)

5. Voting Rights and 2020 Election Fears

• Colorado as a Model:

  • Mail-in ballots, automatic registration, and accessible voting are highlighted as ways to ensure election integrity and participation.
  • Quote: “Colorado automatically registers everybody. It mails people a ballot. It makes it easy to mail it back or drop it off. It gives people time to vote and it is committed to the highest participation level possible. That is democracy at work.” (Phil Weiser, 23:05)

• Fraud Fears Overstated:

  • Instances of vote-by-mail fraud are described as “minuscule.”
  • Quote: “We've had extraordinarily few cases...They are minuscule.” (Phil Weiser, 24:39)

6. Civil Liberties and State Emergency Orders

• Balance of Power:
  • The state’s authority to enact “drastic” quarantine or stay-at-home orders is bounded by the responsibility not to abuse these powers—legal checks and accountability remain vital.
  • Quote: “How do we ensure that's done responsibly and not abused? This is where we have a legal system and actions that are authorized by law can be tested.” (Phil Weiser, 29:39)

7. Supreme Court, Electoral College, and Federalism

• Upcoming Supreme Court Case:
  • Weiser previews his upcoming argument at the Supreme Court addressing whether states can bind presidential electors (“faithless electors” case).
  • Quote: “Can electors act as free agents or can states bind them to do what the people of the state want?...We believe states can have the authority...” (Phil Weiser, 31:11)

8. Non-Pandemic Priorities

• Other AG Priorities:
  • Weiser’s top pre-pandemic areas: defending the rule of law, opioid crisis, criminal justice reform, consumer protection (especially antitrust), and environmental issues.
  • Quote: “Those are still areas I'm committed to working on.” (Phil Weiser, 36:17)

9. Antitrust Concerns

• Market Concentration:
  • The increased concentration in sectors like airlines is leading to higher prices and less competition; state AGs can act independently from federal agencies.
  • Quote: “Our economy is more concentrated today than it's ever been...Consumers are better served when there's competition.” (Phil Weiser, 37:16)

10. Endnote: On Hope and Resilience

• Weiser's Counsel in Uncertain Times:
  • Drawing on personal family history, Weiser urges listeners to “stay hopeful” and believe in the durability of the American constitutional tradition.
  • Quote: “We need to stay positive. We all have a choice. We can stay positive or we can mire ourselves in doubt and fear. And that is contagious. But you know what? So is hope.” (Phil Weiser, 39:30)

Notable Quotes & Memorable Moments

• On the absurdity of patchwork pandemic response:

  • “None of this really accounts for the fact that we have interstate travel. Someone likened it to only peeing in one part of the pool.” (Dahlia Lithwick, 01:57)

• On barriers to federal coercion:

  • “The feds can provide support and say, hey, we'll give you money for a ventilator...But the federal government can't say, oh, we have this program...if you don't want to open up tomorrow, we're taking away all this money. That's coercion.” (Phil Weiser, 08:49)

• On fear for November elections after Wisconsin's debacle:

  • “How could you watch that Wisconsin election and not be in mortal terror about what could happen in November?” (Phil Weiser, 23:05)

• On the principle of hope:

  • "But you know what? So is hope. The arc of our moral universe has continued to bend towards justice. It's not always a straight line, and we have a lot of bumps in the road in this country. But we've got this great tradition." (Phil Weiser, 39:30)

Timestamps for Key Segments

• 00:05 – Weiser on the constitutional basis for state leadership in public health.
• 06:41 – How COVID-19 has changed the work of state attorneys general.
• 08:49 – The 10th Amendment/federalism “Cliff Notes.”
• 13:47 – The evolving and politicized role of state AGs as checks on the executive.
• 20:47 – Cooperative federalism and pandemic-specific collaboration.
• 23:05 – Colorado’s model for safe, high-participation elections.
• 29:39 – Civil liberties, quarantine orders, and legal recourse.
• 31:11–34:00 – Electoral College “faithless elector” Supreme Court case preview.
• 36:17 – Non-pandemic AG priorities.
• 39:30 – On hope, resilience, and constitutional faith during crisis.

Episode Tone & Style

The conversation blends legal analysis, policy realism, and personal conviction. Both Lithwick and Weiser display warmth, humor, and sobriety about the magnitude of current challenges. Both insist on the importance of rigorous law, bipartisanship where possible, and hope.

This summary covers all major themes and arguments, highlights key takeaways, and preserves the dynamic, accessible style of the original episode.