Earlier this month, President Donald Trump made an unusual statement at the National Republican Congressional Committee dinner, to an audience of the party’s House members. “The states are just an agent of the federal government,” he insisted, in regard to states refusing to assist his sweeping immigration crackdown.
This is not only wrong as a matter of constitutional law and the basics of federalism, it was also a stark repudiation of the usual conservative defense of broad autonomy for states. But on the flip side, liberals are quickly learning the much maligned framework of “states’ rights” isn’t always bad.
Democratic Illinois Gov. JB Pritzker has announced the state’s pension funds would divest from El Salvador, in response to that country’s participation in the administration’s unlawful deportation scheme. And across the country, a number of states and localities have existing policies limiting law enforcement cooperation with federal immigration enforcement. There is a growing recognition among Democratic-led states that they are in a unique position to put up resistance to the Trump administration — not just politically, but constitutionally and in concrete practical terms.
Liberals are quickly learning the much maligned framework of ‘states’ rights’ isn’t always bad.
This isn’t entirely new. State attorneys general have been at the forefront of legal challenges to federal policies, in both parties, depending on who is in the White House. Since Jan. 20, Democratic attorneys general have been moving rapidly to file lawsuits blocking funding cuts tied to Trump’s demands, attempts to hijack state education systems, and to block the executive order attacking birthright citizenship. What’s changed compared to his past administration is the coherence and assertiveness of these efforts. With all three branches of the federal government under Trump-friendly Republican control, albeit with the courts less than the other two, the states are the one remaining bastion of constitutional authority able to push back.The legal footing for this resistance rests on firm constitutional ground. The 10th Amendment reserves powers not delegated to the federal government to the states or the people. More specifically, the anti-commandeering doctrine — affirmed in Supreme Court decisions like Printz v. United States and Murphy v. NCAA — makes clear that the federal government cannot compel states to administer or enforce federal regulatory programs. The Supreme Court’s ruling in National Federation of Independent Business v. Sebelius, striking down parts of the Affordable Care Act, also affirmed the principle that conditions attached to federal funding can’t be “coercive” on the states.
The federal government can enforce its own laws but it can’t force states to help or to adopt matching laws of their own. Most famously, states have used this in the case of marijuana legalization, dropping state prohibitions even while the federal ban is nominally intact. As a practical matter, the federal government doesn’t have the resources to crack down on itself.
Federalism is not inherently a conservative principle; it is a bedrock structural foundation for the system of government created by the Constitution. We are, after all, still the United States — it’s right there in the name. And the states may now serve as one of the most effective avenues for safeguarding civil rights and individual liberties at a time when federal policy is moving rapidly in the opposite direction.Understandably, liberals have historically tended to view such arguments with suspicion, seeing in them the echo of state resistance to desegregation, the legacy of Jim Crow and before that defenses of slavery. The federal government does have the power, properly, to intervene against states violating individual rights protected by the Constitution. But sometimes it’s the states that are on the right side of history.
At their best, states can serve as guardians of liberty, and they’ve done so before. States resisted the Alien and Sedition Acts, the notorious censorship laws under John Adams (the only remaining portion, the Alien Enemies Act, is back in the news). Northern legislatures passed personal liberty laws in response to the Fugitive Slave Act, and state obstruction and refusal to enforce the law was a prominent grievance of Southern secessionists in 1860. State and local governments also undermined federal attempts to enforce Prohibition, simply by refusing to assist. And states moved to legalize same-sex marriage years before the Supreme Court caught up at the federal level, and in the face of hostile federal law.
These moments are part of a larger constitutional tradition: When the federal government oversteps, the states can act as a counterweight. That is the whole point, as intended by the Framers, in dividing sovereignty between the states and the national government.
Federalism is not inherently a conservative principle; it is a bedrock structural foundation for the system of government created by the Constitution.
State noncooperation offers a measured, legal path for principled dissent. It allows states to protect their residents, assert their policy priorities, and maintain democratic norms — all without violating the supremacy clause or stepping outside the rule of law. And when the states plainly have the Constitution on their side, they can and have won victories in federal court.States could adopt broader noncooperation laws that prohibit state and local law enforcement from voluntarily assisting the increasingly rogue and lawless Immigration and Customs Enforcement, as well as the Border Patrol. They could impose review requirements before state or local personnel participate in joint operations with federal law enforcement, or decline to provide material support unless there is a clear state interest at stake. They could restrict state prosecutors and law enforcement from partnering with their federal counterparts on things like civil asset forfeiture.
At their core as sovereign polities, states are still military powers, too. Governors are the commanders in chief of their respective National Guards, when not federalized, as well as purely state defense forces in some states. In Washington state, Gov. Bob Ferguson recently invoked this power in signing a law barring out-of-state Guard units from operating in Washington without its consent.
This does not amount to obstruction of federal law. Under the Constitution, states cannot actively interfere with federal enforcement. But they are equally not required to aid it.
Radical nonassistance — refusing to provide personnel, data or facilities — is well within the bounds of constitutional authority. If the federal government wishes to enforce its laws, it must do so with its own resources. And if it exceeds the scope of its constitutional powers, states can fight back.
When used thoughtfully and with good intent, federalism can empower states to expand rights, not restrict them; to defend the vulnerable, not marginalize them; to offer a counterbalance when the federal government runs amok. We may need this bulwark now more than ever.