The Great Exception
California vs. Trump. Part One.
The California Sunday Magazine | January 17, 2017
AFTER THE NETWORKS had called it, Kevin de León walked out onto the balcony of his suite at the Ace Hotel in downtown Los Angeles for some fresh air. Darkness had settled over the city. De León was a mess — gutted, angry, confused. Back inside the suite, staffers sat hunched over their laptops monitoring election returns from around the state. As the president pro tempore of the California State Senate, de León, a Democrat, had reason to feel good about many of the results — it was possible his party would claim a supermajority in the Senate when all the votes were counted. But as someone who began his political career in the early 1990s organizing against the passage of Proposition 187, the anti-immigrant referendum, he felt a sickening sense of history repeating itself as he watched Donald Trump claim victory.
De León thought of the people in his district, a swath of Los Angeles that includes Filipinotown, Thai Town, Little Tokyo, Little Armenia, Little Bangladesh, and the Latino bastion of Boyle Heights. He represents one of the largest populations of Koreans outside of the Korean peninsula and one of the greatest concentrations of Central Americans outside of Central America. This was the United States he knew and believed in: welcoming, tolerant, where people of radically different backgrounds worked and lived side by side. California Democrats, he decided, had to respond to Trump’s election; they had to reassure their voters. De León reached for his cellphone.
Three hundred sixty miles to the north, Anthony Rendon, the Democratic speaker of the California State Assembly, had just left the governor’s mansion in Sacramento, where people had gathered to watch the returns. His party had won back three seats in the Assembly, reclaiming its supermajority. But the good news did little to lift the pall over Rendon. The scene at the governor’s mansion had felt like a wake. One of the few who had spoken was Governor Jerry Brown. Like most Democrats, he had expected Clinton to win. The country has seen worse, Brown told everybody. California has a strong constitution. It can protect itself.
Rendon was back in the Democrats’ war room a dozen blocks from the mansion when his phone rang. It was de León. The two men had been talking throughout the evening, and now they came up with a plan: a joint statement by the Assembly and Senate responding to Trump’s victory. The chambers rarely joined forces like that, and their leaders weren’t personally close, but both seized on the idea. Rendon drove home and typed out a few thoughts and sent them to his communications director, who forwarded them to speechwriter Dave Sebeck, asking for a draft first thing in the morning.
At 6 a.m., Dan Reeves, de León’s chief of staff, got into his car to drive back up to Sacramento from L.A. He stopped at a Carl’s Jr. to help with a hangover and then started making calls. As drafts of the joint statement flew back and forth between the two offices, Reeves had each version read aloud to him while he was driving the I-5. Cut that line. Too slow. Good, good, good. Rendon’s people wanted more time, but Reeves insisted the statement go out as soon as possible. The staffs settled on a final draft at 10:57. Rendon and de León signed off an hour later, and at just past noon, the two offices hit send.
The statement, released in English and Spanish, had come a long way from de León’s phone call and Rendon’s late-night riffing. But the opening line had remained intact just as Rendon had first written it: “Today, we woke up feeling like strangers in a foreign land ….”
ON THE DAY AFTER the election, Nancy McFadden, the executive secretary to Governor Brown, called a meeting of the Horseshoe team, the cabinet members and finance officers who work out of the governor’s U-shaped wing in the state Capitol. They filed into McFadden’s conference room, while other staff dialed in from around the state. A window looked out onto the astroturf-lined courtyard where Brown likes to read legislation. McFadden, who was dressed in yoga clothes, began the meeting by acknowledging that it took all she had to get out of her pajamas that morning. Then she turned to the question that was on everyone’s mind: What do we do now?
The journalist and historian Carey McWilliams once called California “the great exception.” McWilliams was writing in the 1940s as he tried to make sense of the first 100 years of the state’s turbulent history. But McWilliams’s idea that California is a singular place, a nation-state unto itself, has never felt truer than it does now.
On the same night that Americans narrowly elected Donald Trump, Californians voted overwhelmingly in favor of his rival, Hillary Clinton. They sent 39 Democrats to the House of Representatives out of 53 seats. They elected Kamala Harris, a liberal Democrat whose father is Jamaican and whose mother is Indian, to the U.S. Senate. They gave Democrats supermajorities in the state Legislature. They passed ballot propositions to legalize recreational use of marijuana, raise the tobacco tax, ban high-capacity magazines, relax parole rules for nonviolent felons, increase transparency in the legislative process, repeal the decades-old limits on bilingual education, and extend higher income taxes on the wealthy. Elsewhere in the country, the Democratic Party lay in tatters. In California, it was dominant.
California has long stood apart. With a GDP of $2.5 trillion, it has the sixth-largest economy in the world, trailing only the United Kingdom, Germany, Japan, China, and, of course, the United States. With 39 million people, it is by far the most populous state in the union. (Put another way, nearly one out of every eight Americans is a Californian.) Two of the nation’s most influential industries — tech and entertainment — reside primarily in California. The state is the fifth-largest supplier of food in the world. And on many of the great policy challenges of our time, like providing health care and fighting climate change, it has led the way. California has insured more people under the Affordable Care Act than any other state save Florida, and it was the first state to adopt a cap-and-trade program to curb emissions.
The California of today would likely shock Carey McWilliams — he could scarcely believe it when the state’s population grew by 3 million between 1940 and 1948, and he dismissed projections that said 20 million people would live in California by the year 2000. (The actual figure was 34 million.) “One cannot, as yet, properly place California in the American scheme of things,” McWilliams wrote 70 years ago. In the hours after the election, California’s political leaders began to reckon with the state’s place in the American scheme of things under a hostile president and administration. Is California best served acting as the faithful opposition? What legal, legislative, and economic tools can it use to resist? How can the state protect its gains? Or is Trump’s election an opportunity for California to show a new way forward?
DAN REEVES, de León’s chief of staff, got into Sacramento around lunchtime the day after the election and called a meeting of his own. The first priority, he told his executive staff, is making sure that California prepares itself for the worst. The state has issued driver’s licenses to undocumented residents since 2015 — what if the new administration demands the data that has been collected? California receives more than $20 billion in federal funding through the Affordable Care Act — what would happen if the Republicans repeal Obamacare? Reeves tasked his staff with identifying every legal vulnerability that could be exploited. Before the Senate and Assembly reconvened in early December, he wanted a report on all the ways that Trump could target California, its policies, and its citizens.
Soon after, de León, Rendon, and other Democratic lawmakers crafted legislation to pre-empt Trump on the issue he built his campaign on: immigration. One bill would require a referendum on the construction of a new wall along California’s border with Mexico. Another would ban state agencies from providing information on residents’ religious affiliations to the federal government, a way to stymie a registry of Muslim citizens. And a third bill would create “safe zones” at public schools, hospitals, and courthouses, where state and local officials would be banned from carrying out deportations unless they were complying with a federal warrant.
Few were surprised that de León and Rendon were leading the charge against Trump. They — along with Secretary of State Alex Padilla — represent an ascendant generation of Latino politicians wielding power in California. While the previous generation saw its primary mission as expanding the rights and securing the well-being of Latinos, de León and Rendon see their role differently. “For the first time now,” de León said, “you have a handful of Latino individuals in positions of power for all communities, not just Latino communities.” Rendon told me something similar: “I have as many ties in the Korean American community as I do in the Latino community. I don’t know that folks in my father’s generation traversed neighborhoods the way my generation does.”
In conversation, de León and Rendon come across quite differently. De León, who is 50, grew up in a San Diego barrio with, in his own telling, a chip on his shoulder. These days, he is very much the practiced politician, dressed in tailored suits, always in a rush, quick to name-drop, but always measuring his words. When we met in his ornate Capitol office, decorated by a Vin Scully street sign and a print by the artist Ramiro Gomez, de León steered away from saying anything incendiary about Trump. “We don’t want a fight. We’re not looking for a fight,” he said. “But we’re ready to defend this state and its people.”
Rendon, on the other hand, told me Trump is a “jackass” and “a very dangerous person with totalitarian fascist tendencies.” He didn’t stop there. “The assumption that we’re going to have midterm elections in two years,” he said, “is an assumption that I don’t necessarily buy into at this point.” A 48-year-old, self-described Anglophile, he met me for beers at a British-style pub not far from the Capitol. Unlike de León, he is a relative newcomer to politics, having run for office only three times, winning them all. He earned a Ph.D. in political philosophy at the University of California, Riverside, and for a number of years oversaw a network of early childhood education centers in Los Angeles. He decided to enter politics when the Schwarzenegger administration cut his funding: “I just got pissed off.”
On the evening of December 4, the day before the Legislature’s swearing-in, de León gathered his caucus in its meeting room in the Capitol. Once inside, his staff handed out a 17-page memo. It was the document that Reeves had ordered up, outlining California’s vulnerabilities on everything from the Affordable Care Act to cap-and-trade, from the Endangered Species Act to air-quality standards to immigration. “If you see something that should be in here that isn’t,” de León told the caucus, “let me know.” He also told the members to keep the memo confidential. As one Senate aide told me, “That document would be a playbook for our opponents. If they got their hands on it, it would be a disaster.”
A FEW DAYS BEFORE THANKSGIVING, Congressman Xavier Becerra, whose Los Angeles district overlaps with de León’s, put in a call to Jerry Brown’s office. With California Attorney General Kamala Harris going to the U.S. Senate, Brown had to name a replacement. Becerra didn’t speak to the governor, but he left a message: He was interested in the job.
Becerra’s name hadn’t appeared on any of the unofficial shortlists that were circulating in Sacramento, but he was the type of candidate that many in the Legislature hoped Brown would nominate. “I don’t want a DA. I don’t want a prosecutor,” de León had told Brown, according to someone with knowledge of their conversation. What was needed was a person with national experience, he said, who knew his or her way around Washington.
In his 24 years in Congress, Becerra had developed a reputation as someone who is both exceedingly cautious and an astute operator. The son of Mexican immigrants — his father was a farm laborer and construction worker — he grew up in a 680-square-foot house in south Sacramento. Becerra has told the story so often of how he got into college that it’s now part of his self-mythology: During his senior year in high school, he retrieved a friend’s crumpled application to Stanford from the trash, filled it out, sent it in, and was accepted. He went on to Stanford Law, and from there, his path to Congress is a familiar one: junior staffer in the California Legislature, deputy in the state attorney general’s office, assemblyman, and then on to Washington in 1992. In his time there, he became an acolyte of Democratic leader Nancy Pelosi, chairing the House Democratic Caucus and playing a key role in the passage of the Affordable Care Act. Many had thought a cabinet position in a Hillary Clinton administration would be an obvious next step. Now, with Clinton’s loss, Becerra was looking around.
Soon after he delivered his message to Jerry Brown’s office, an opportunity to rise further in the House opened up. Rumors were circulating that Representative Sandy Levin, of Michigan, the ranking member on the House Ways and Means Committee, was planning to step down. Becerra had served on Ways and Means for two decades. The prospect of being the top Democrat — and someday chairman — of one of the most powerful committees in Congress held enormous appeal. It also gave him leverage.
He phoned Nancy McFadden in Brown’s office and reiterated that he was still serious about the attorney general job but also informed her that he planned to run for Ways and Means unless he heard from the governor. A few hours later, Brown called. Becerra wouldn’t tell me what they discussed, except that in classic Brown fashion, the conversation went on for some time and caromed from one subject to the next. Still, there was no offer. After Levin announced he was stepping down that afternoon, Becerra launched his bid to replace him. He sent out “Dear Colleague” letters and began assembling a whip team and collecting votes.
He called McFadden the next day to let her know. “Nancy, this is looking pretty good on this end,” he told her, “and I can’t turn off the spigot just because you guys are thinking this is real serious.”
“Xavier,” she said, “we’d like to tell you we’re serious on our end.”
“That’s great you’re serious. But that’s not an offer.”
That evening, Brown phoned. The attorney general job was his if he wanted it. Becerra accepted immediately.
At his official unveiling in Sacramento the following week, Becerra, seated next to Brown, said it was too soon to say what he would do as attorney general: “I’d love to … go into detail, but as I said, right now I still don’t have the keys to the car.” The decision happened so quickly that Becerra, who hasn’t practiced law in 25 years, needed to reactivate his California law license.
One place to look for what Becerra might do is Texas. During the eight years of the Obama administration, the Texas attorney general’s office filed 48 suits against the federal government, challenging laws and executive orders on immigration reform, climate change, benefits for same-sex couples, contraception coverage, and banking oversight. As Greg Abbott, the Texas attorney general, put it, “I go into the office, I sue the federal government, and then I go home.” Texas won 8 of those suits, lost 12, withdrew 9, and 19 are still pending. Several of those victories were notable, blocking key Obama initiatives to halt deportations of undocumented immigrants and to protect transgender people.
Tom McGarity, an administrative law professor at the University of Texas at Austin who has studied Texas’s legal strategy, told me the state often failed because its cases cut against the grain of the law in question — it was fighting to weaken new laws or throw out new regulations. California, though, is more likely to sue a Trump administration to uphold existing laws and regulations. “It’s tough to persuade a court to make an agency do more,” McGarity said. “It’s not as hard to persuade a court to overturn a decision by an agency that is trying to do less than it has been doing.”
A better precedent for Becerra might be what the California attorney general’s office did under the last Republican president, George W. Bush. The two California attorneys general who served during Bush’s tenure, Bill Lockyer and Jerry Brown, joined several other states in suing the federal government to curb greenhouse gases under the Clean Air Act. The U.S. Supreme Court eventually ruled in the states’ favor. The attorney general’s office also successfully sued the Department of Energy for delaying new efficiency standards on home appliances, and it brought a case that prevented the departments of the Interior and Commerce from weakening the Endangered Species Act. Lockyer described two types of suits that Becerra could bring against the Trump administration. One is a “shield” case that could, say, try to block the federal government from deporting undocumented college students. The other is a “sword” case. “Someone will try to roll back EPA regulations on greenhouse gas emissions,” Lockyer said, “and the lawsuit says you can’t do that.” Both can be effective, he said.
In early January, Becerra picked up a powerful ally. De León announced that the Legislature had hired as its outside counsel Eric Holder, U.S. attorney general under President Obama, who is now a partner at Covington & Burling, one of the most powerful law firms in Washington, D.C. Holder has assembled a team of attorneys who specialize in climate, immigration, water, air, public safety, and health care — precisely the areas in which California could find itself in conflict with the new administration. Holder wasn’t selected just for his legal acumen. He also brings political savvy and Washington connections, a point he stressed in one of his meetings with de León. “There are some things you can’t win in court and you have to win at the ballot box,” Holder advised, according to a person familiar with the conversation. “They all go hand in hand.”
Legislators and staffers in California have begun to sketch out steps the state might take to counteract the most extreme actions of a Trump administration and a Republican-controlled Congress. The new president could sign an executive order denying funds for women’s health organizations like Planned Parenthood. Congress could pass a law that requires California to honor concealed-carry weapon permits issued by states with less stringent gun laws, or repeal parts of the Clean Air Act. “That’s partly why we got Eric Holder’s firm,” a Senate aide told me. “We’ll be looking for their advice on how to create laws that insulate us as strongly as possible. I think we’ll be pushing the envelope on state legislative authority.”
Some have speculated that Becerra took the attorney general’s job because, historically, it has been a springboard to more powerful positions. That was the case in Texas where Abbott’s lawsuits against Obama made him a hero to the party faithful. “It’s not as much whether you win the fight,” said Steve Munisteri, the chairman of the Republican Party of Texas, “it’s whether you’re willing to engage in the fight. If you’re willing to engage, the base will reward you.” Abbott was elected governor in 2014.
Not surprisingly, Becerra refuses to speculate whether he plans to run for another office. “That’s not even on my mind,” he told reporters in his first press conference after the announcement. The obvious seat is Dianne Feinstein’s in the U.S. Senate. She turns 84 in June, and many are wondering if she will run for re-election in 2018. Still, if Becerra’s going to be a serious candidate for the Senate, he will first have to prove he can defend California.
JERRY BROWN WALKED onstage inside San Francisco’s Moscone Center to thunderous applause. It was a Wednesday morning in mid-December. He wore a dark gray suit and a blue-striped shirt opened at the collar. At 78, Brown has lost much of the boyishness that marked his first stint as governor in the 1970s; mostly bald, he looks more than ever like the Jesuit priest he once aspired to be. He was there to deliver a keynote address to the fall meeting of the American Geophysical Union, a gathering of thousands of scientists who had come to discuss, among other topics, the fate of the Earth. Brown had arrived not with a prepared speech but with only a few notes he’d written himself. But, in many ways, he’d been thinking about what he would say for more than four decades.
Critics and admirers agree Brown is one of the most successful and vexing politicians of the modern era. No elected official has traced a career arc anything like his: secretary of state at age 32, governor at 36, and then after 16 years out of public office, eight years as Oakland mayor, four as attorney general, and now another six years as governor. He holds the distinction of being one of the youngest governors and the oldest governor in state history. For several generations of Californians, he has been a fixture, a landmark — as essential to the state’s identity as Yosemite and the Pacific Coast Highway. Politicians came and went. There was always Jerry.
By his own admission, he was an erratic governor the first time around. Easily bored, prone to freewheeling debates, he was, in the words of one biographer, the “philosopher-prince.” The governor ran late so often that visitors brought sleeping bags to their appointments. His closest aide was a beret-wearing French filmmaker named Jacques Barzaghi, who followed Brown everywhere he went and spouted nonsensical aphorisms. (“I only think in the present,” he once said. “The future doesn’t belong to me. The past is dead.”) Imagine the faces of the national press corps when Brown launched his 1980 presidential campaign by saying: “I see a future where we reach out into space itself and bring with us other nations, so that at last we begin to sense our unity in the spirit on this small speck of universal time.” For this and other musings, he was given the nickname Governor Moonbeam.
But underneath it all was a genuine commitment to safeguarding the environment and preserving the planet. When Brown listed the three overarching principles of that 1980 presidential run, the first was to “protect the Earth.” He also called for greater control of multinational oil corporations. As governor, he promoted everything from solar panels and geothermal energy to low-flush toilets.
Today, Brown’s warnings look prescient. During his current tenure, he has signed into law aggressive new emissions-reductions targets, strengthened the state’s cap-and-trade program, and invested in new climate research. California boasts more rooftop solar than any other state. It is home to the world’s largest photovoltaic solar installation. It slashed statewide greenhouse gas emissions by 5.5 percent between 2003 and 2013. Brown can’t claim credit for all these achievements — his predecessor, Arnold Schwarzenegger, set in motion the cap-and-trade program — but he has arguably done more than any other governor, past or present, to fight climate change.
It was striking then that Brown was silent in the immediate aftermath of Trump’s victory. The president-elect had repeatedly declared that climate change was a hoax perpetuated by the Chinese so they could dominate the world economy. Brown’s office declined to sign on to the Legislature’s joint statement. “I think you should put the statement out,” Nancy McFadden told a Senate aide. “But we’ll put out our own.”
The office waited two days to respond to the election, and the release it produced was pure boilerplate; it spoke of the need to “stay true to our basic principles” and to “find common ground whenever possible.” Brown passed on Meet the Press. He waited a month to take questions from the media about Trump. When he finally did, he defended his tepid postelection statement as “a well-crafted reaction,” adding, “I even ended it in Latin, and some of you didn’t cover that. E pluribus unum: from many, come one.” (“Original,” sniffed one of the reporters.) Asked about the meaning of Trump’s win, Brown said: “We don’t know what it means. It’s certainly different.”
J. Anthony Kline, a California appellate judge and close friend of Brown’s going back to Yale Law School, told me that the governor called him up not long after the election. Brown had finished reading The Sleepwalkers, Christopher Clark’s highly regarded history of the events that led to World War I. For Brown, Trump’s election had to be seen within the sweep of what was happening around the world — the rise of ethno-nationalism, globalization, Brexit. Kline told me he wasn’t surprised that his friend hadn’t spoken out more forcefully. “He’s putting things in a broader context,” Kline said, “and I find it really unusual in a political figure to be thinking in historical or intellectual terms.”
Lieutenant Governor Gavin Newsom also spoke with Brown soon after the election and came away with a similar impression: Brown was not going to be caught up in the fervor and panic that was engulfing Democrats. He had advice for Newsom: “You, the youthfully exuberant, I understand why you’re sending out press releases and tweets. But be cautious.” Newsom laughed at the memory, adding, “He was processing things in his own way.”
Brown has less than two years left in what will likely be his last term in public office. According to those who’ve spoken with him, Trump has made him more resolved than ever to stay relevant until his final day, and one way to do that is by placing a climate-focused initiative on the ballot in 2018. When negotiations over cap-and-trade stalled during last year’s legislative session, Brown threatened to put a measure on the ballot. The tactic appeared to work; the legislation passed a month later.
A confidant of the governor’s told me that Brown wants a proposition on next year’s ballot that will be the “most aggressive, far-reaching thing that’s ever been done” to combat climate change. Newsom also thinks that Brown will pursue a ballot measure. “He has every incentive to do it,” he told me. “This is the opportunity of a lifetime for Jerry Brown to strengthen his legacy on the existential issue of our time.” McFadden confirmed that Brown is seriously considering a referendum. “We hope we can get virtually everything we need through the Legislature,” she told me. “And then it’ll be, Is there something else that could be done at the ballot? Or is there a political reason that makes sense to do something at the ballot? The governor does not lack for ideas.”
On December 8, Trump named Oklahoma Attorney General Scott Pruitt to oversee the Environmental Protection Agency. Pruitt questions the connection between man-made activities and climate change and as attorney general has fought the EPA’s efforts to limit greenhouse gas emissions. He once sent the EPA a letter opposing new methane regulations that was copied almost word for word from a document produced by an energy company. Mary Nichols, who chairs California’s Air Resources Board and is Brown’s closest adviser on the environment, told me that one likely area of friction is whether the EPA grants California’s waiver to set air pollution requirements tougher than what federal law demands. Before the new administration had taken office, Nichols said she’d already heard rumblings that auto companies were pushing to restrict the state’s ability to establish its own emissions standards, but she was confident the state would win if it had to go to court. “We’ve never lost a waiver,” she said. “It’s not new for us to be in a position of staking out environmental ground that is more progressive and more protective of public health than the federal government. In fact, I would say it’s a role we’re comfortable with.”
It was a week after Pruitt’s nomination when Brown arrived at the Moscone Center. “There were some reports that Trump was rethinking his climate change stance,” McFadden told me, “and then he just seemed to double down on it. The governor said, ‘All right, it seems to be clear where he’s going. If this is where he’s going, we’ve got to start speaking out.’” The Geophysical Union speech was the opportunity he was looking for. Before he’d gotten a word out, the scientists gave him a standing ovation. “We’re going to need all that energy and enthusiasm in the battles ahead,” Brown said, acknowledging the reception. He then proceeded to deliver one of the most passionate speeches of his career. This was the Jerry Brown everyone was waiting for.
Brown hailed the scientists in the room as truth-tellers and truth-seekers. “The time has never been more urgent or your work more important,” he told them. He stabbed at the air as he likened the danger of climate change to the threat of nuclear weapons. He accused the fossil fuel industry of mimicking tobacco companies in its efforts to distort science and public debate. He took a swipe at conservative news outlets like “Breitbart and the other clowns” who dismissed the existence of climate change. And he took direct aim at the incoming administration. “Some people say they’re gonna turn off the satellites that are monitoring the climate,” he said, adding that back in the 1970s he had been one of the first politicians to propose low-Earth satellites. “They called me Governor Moonbeam because of that,” he said. “If Trump turns off the satellites, California will launch its own damn satellite.”
If there was any doubt where California fit in this new era, Brown had the answer. “We have a lot of firepower,” he proclaimed. “We’ve got the scientists. We’ve got the universities. We have the national labs. We have a lot of political clout and sophistication for the battle. And we will persevere.”