Federal Relations

The GOP governor who will be a thorn in Trump's side (it's not Kasich)

Strategy Room: Brad Bauman and Brian Morgenstern on the growing public division between both officials

 

President Trump seems to have mended fences with most Republican governors, even hosting a cordial meeting last month with ‘never Trumper’ John Kasich of Ohio. But one GOP governor from the land of Bernie Sanders is emerging as the exception – threatening to cause turbulence for the president from the same side of the aisle.

Vermont Republican Gov. Phil Scott, who was elected comfortably in one of the smallest and most liberal states on the same night Trump shocked the nation by defeating Hillary Clinton, is taking on Trump’s executive orders boosting immigration enforcement. He has done so on two fronts: assembling a special “cabinet” to push back and promoting legislation to challenge what he calls federal overreach.

“[I]t is increasingly clear that many elements in the orders have the potential to violate the constitutional rights of American citizens, and infringe on states’ rights afforded by the Tenth Amendment,” Scott said last month, joined by a bipartisan group of state officials supporting the bill. “This legislation serves to protect Vermont … against some of these potential violations, and to reassure our communities and citizens of their safety and security here.”

Trump’s orders vow to “empower” state and local law enforcement to “perform the functions” of immigration officers to whatever extent legally possible. To this end, it calls for reviving a partnership program known as 287(g).

Scott is a border-state governor, albeit on the border of Canada where illegal immigration is not nearly as rampant. Still, the governor’s office contends this portion of the orders could let the federal government “commandeer state and local law enforcement assets.”

The clash isn’t necessarily surprising considering the blue tilt of Vermont, which has continually re-elected Sen. Sanders, an independent and professed democratic socialist, to Congress. Clinton won the state with 57 percent to Trump’s 30 percent.

Scott, however, is making his case against the president in somewhat conservative-libertarian terms, arguing against federal encroachment, similar to contentions made by GOP governors that challenged then-President Barack Obama on the Affordable Care Act and his immigration executive actions.

“We are a nation of United States – a constitutional republic made up of individually governed states empowering three equal branches of government to act on our behalf – not one nation-state governed exclusively by a president,” Scott said on Jan. 30, when he announced his Civil Rights and Criminal Justice Cabinet to review the Trump orders composed of his legal counsel, the state’s attorney general, cabinet secretaries, state legislative leaders and one mayor.

It could be good politics, said one Vermont state elections expert.

“It is a state’s rights argument, curiously, but Vermont has been a state known to buck the tide,” Garrison Nelson, a political science professor at the University of Vermont, told Fox News.  “This is one of the most liberal states in the country. So, there is no punishment he will encounter for challenging the president. There is nothing to be gained by going along with the Trump agenda.”

Scott won 53 percent of the vote, outperforming Trump by more than 20 points in the state. His victory was not an easy task as Obama recorded an ad for Democratic opponent Sue Minter – and Massachusetts Sen. Elizabeth Warren and Sanders stumped for her. He won  on a fiscally conservative platform of vowing to veto any state budget that grew faster than the economy and was highly critical of the state’s health care system. Scott previously was the state’s lieutenant governor.  

The proposed Vermont bill stipulates the decision for local law enforcement to take on federal immigration enforcement duties will rest solely in the hands of the governor, rather than the federal government or local officials. The bill further bars the collection of resident information based on race and religion for the purposes of a federal registry.

“This bill has been carefully crafted … to confirm Vermont remains compliant with federal law, that we would not be established as a sanctuary state, and to address the needs and recommendations of our law enforcement partners,” Scott said during a press conference in February. 

Scott’s spokeswoman Rebecca Kelly did not return numerous calls and emails from Fox News.

The federal government clashing with states over immigration is nothing new. Texas led a challenge to Obama executive actions that shielded about 5 million illegal immigrants from deportation. Before that, the Obama administration challenged the Arizona immigration enforcement law.

Now, the roles are reversed as some states and cities push back on more aggressive federal enforcement.

Legally speaking, Trump’s executive orders on immigration don’t yet appear to pose a Tenth Amendment issue, said Anthony Casso, a professor of law at Chapman University.

“The executive order doesn’t appear to be a coopting state and local resources,” Casso told Fox News. “The Department of Homeland Security is asking state governors to enter agreements, but a state can say no.”

Casso cited the 1997 Supreme Court ruling in Printz v. United States that prohibits the federal government from coopting state and local law enforcement assets. But, he said, financial coercion is hardly different than withholding highway funds from states to enforce a federal 55 mile-per-hour speed limit, and other past practices by the federal government.