How Extreme Can Democratic Governors Get to Stop Trump?
If there’s one thing that U.S. civics education hammers home the most—the one thing that grade school students first learn, which is one of the preeminent things international audiences know about our system of government—it’s that it is a federal system. There is no national ID, there are individual laws and even constitutions for every state, we have entirely different criminal justice regimes from state to state and a variety of approaches to everything from environmental protection to health care. To each state their own, we say.
This self-image will likely never have felt less abstract or more acute to blue-state governors and other officials who are watching as Trump effectively goes to war with their populations, particularly via the aggressive deployment of federal law enforcement in a way that will only be turbocharged by the MAGA megabill’s showering of staggering resources on immigration enforcement, detention, surveillance, and so on. As I’ve consistently written, the immigration crackdown has a real ideological basis and practical effect, but is also an entry point for the administration to target speech and political organizing. Masked agents are shoving people into unmarked cars, and the federal government is making the explicit argument that it can arrest people for their political ideas and target the citizenship of politicians that it doesn’t like.
Seeing all this, state executives are faced with a set of questions, whether they like it or not. How much are they going to tolerate? What is their responsibility to their own state residents, and when and how does this responsibility conflict with Trump’s overreaches? If the federal government won’t uphold civil liberties and constitutional principles, is it on them instead? And how would this even work?
These are all third-rail questions—inquiries that most mainstream commentators, politicians, and researchers have been squeamish about broaching for relatively obvious reasons. The reality is that there is no Democratic governor in the country who wants to get into a head-to-head showdown with a wannabe despot who controls the military and the mechanisms of hard and soft federal power. Ultimately, governors and other state and local officials might just not get to avoid making a choice as the administration’s moves force their hand. In California, Trump has federal agents and troops literally marching through town backed by armored vehicles. Governor Gavin Newsom’s control over his own state National Guard was not something he got to test because Trump preempted him, illegally federalizing the military for domestic law enforcement and making California sue, unsuccessfully, to try to get it back after the fact.
On the right, impassioned resistance to a centralized federal government that wants to, say, impose environmental regulations or force access to abortions has been an item of faith for decades, which has made the concept of strong federalism and active local pushback a conservative-coded principle among liberals and many on the left. On another extreme, the online tankie types have long lusted for glorious revolution on the premise that an authoritarian government will be safely splintered and replaced with some utopia—a shaky understanding of history at best. Neither group is particularly beloved or taken seriously by institutional Democratic executives.
Very few people want another civil war, and no one could possibly guarantee the outcome of such a conflict. Yet there is a vast space that exists somewhere between doing nothing and getting into a shooting war with the federal government, a space that liberal governors have only warmed up to potentially stepping into over the last decade or so. The whole notion of states’ rights and showing down against federal overreach is filtered through “the paradigm example of George Wallace in Alabama standing in the schoolhouse door, or other governors in the 1950s and ’60s implacably resisting Brown v. Board of Education. So that’s the modal picture people have,” said Alison LaCroix, professor of law and history at the University of Chicago and author of The Interbellum Constitution, an examination of law and federalism in the half-century prior to the Civil War.
Yet LaCroix points out that there is a concurrent history of state power being asserted to oppose federal enforcement of slavery protections. In 1854, the highest court in Wisconsin, barely some six years into being a full state of the union, ruled that the Supreme Court’s 1842 decision in Prigg v. Pennsylvania—declaring that a state could not refuse to extradite fugitive slaves or offer additional protections—was itself unconstitutional, defying both the court and Congress, which had just passed an updated Fugitive Slave Act. The state court granted a habeas corpus petition—the constitutional right to contest detention that people like Stephen Miller are musing getting rid of—to a man in federal custody on charges of liberating a slave, and went as far as refusing to send a record of that decision to the Supreme Court, though the high court eventually heard and overturned the state ruling. It was perhaps the most ambitious but certainly not the only effort to assert state control over enforcement of federal slavery laws.
This fight likely would have kept playing out had it not been settled in a more definitive, martial way a few years later. Even though the anti-slavery states ultimately lost the legal battle (and then won the military one), LaCroix believes there’s a legacy to draw on here. “Are we really going to say that precedents about the federal Fugitive Slave Act are controlling? Also, internal to that doctrine was a whole set of theories about things in the Constitution that made the power over fugitive slaves exclusively federal,” she said. “It can’t be the case that state officials are completely hamstrung because we have these legal precedents that are established in those circumstances.”
Some of this just looks like instituting more aggressive (or more aggressively following) what are broadly known as sanctuary policies, which really just mean noncooperation with immigration enforcement. You don’t have to look far to find examples of local officials violating noncooperation tenets through defiance, carelessness, or ignorance, whether it’s running license plate reader searches for immigration agents or sending information via informal “task force”–style chats. This data is the fuel that ultimately powers a lot of targeted immigration enforcement, and state executives could probably get a lot more serious about cracking down on the myriad ways their state security apparatuses, entwined as they are with federal agencies in the post-9/11 national security state, are leaking torrents of information they’re not supposed to be providing.
There’s ample precedent for states to refuse outright to expend resources on federal enforcement functions generally and on immigration enforcement specifically, downstream of bedrock federalist anti-commandeering principles. Judges in Trump’s first and second administrations have found that Trump cannot, for example, move to withhold federal funds from sanctuary jurisdictions that simply do not cooperate in immigration enforcement. In that vein, New York State Assemblymember Catalina Cruz of Queens, an outspoken defender of immigrants in the state, said she is having conversations with the governor’s office about barring participation by police and sheriff departments around the state in so-called 287(g) agreements, which allow local law enforcement to be essentially deputized as immigration agents.
Still, noncooperation can only go so far. If states find that the feds are trawling around their cities, tossing people into cars and arresting dissidents, the real question is what they can do not just to wash their hands clean but to functionally stop it. Cato Institute senior fellow Patrick Eddington began raising some of the practical and legal questions around city and state officials actively impeding certain federal operations back in December, prior to Trump’s second inauguration, including the notion of governors making the call to take their National Guards out of the federal system and deploying them to contend with a declared emergency of indiscriminate federal raids.
Six months on, the dangers of a federalized National Guard proved prescient. While a lot of the state-federal-relations talk these days focuses on the cudgels that the feds hold over states—mainly funding, but also things like disaster relief, which Trump seems keen on weaponizing to punish states that are insufficiently bending the knee—this flows both ways. Eddington believes that the administration’s lawlessness has created openings for other practical steps like ordering utility providers to cease providing services to “federal agencies/departments that are in violation of a federal court order.”
That argument would take the multipronged approach that the federal government has “forfeited its claim to lawful authority” and that the states have an independent duty to protect their citizens’ constitutional rights. While Eddington’s not particularly sanguine on the federal courts going along with these arguments, “the moral and political legitimacy of such actions becomes a separate question when traditional checks and balances have failed,” he told The New Republic. Then there’s the question of withholding taxes, an idea most prominently floated by Newsom himself, which would open some floodgates that couldn’t be closed, but then again, that’s just our current reality.
One obvious hook for states is the notion of their primacy over public order and police powers. That’s a foundational principle of a federalist system and the basic reason why the United States, unlike many other countries, neither has a national police force nor allows the military to enforce domestic laws, which incidentally encapsulates what the Trump administration is hoping to achieve with an engorged ICE and the literal military. This is an idea that the “Don’t-tread-on-me” crowd has long understood but with which blue states and their liberal leaders need to get more comfortable.
This could look a few different ways. Aside from or perhaps in tandem with Eddington’s ideas around cutting off access to state-based utilities—a notion that could in theory extend to other state-level resources like preventing federal troops and law enforcement from staging in state buildings or using state roads—local officials could put specific limitations on federal law enforcement activity. The most straightforward would be a requirement for agents to present a warrant that was satisfactory to state officials, such as a judicial warrant issued by a federal judge as opposed to an ICE supervisor, as well as to wear clear insignia and stop covering their faces. Local legislators and federal lawmakers are both now pursuing legislation to bar face coverings for federal agents. In this scenario, local cops and officials would presumably be able to use force or arrest power to enforce these rules.
“When we were trying to do a state employment permit, when the federal government wasn’t doing what they needed to do, our team did some research around this, and it’s not without precedent for the state to step into these shoes,” said Cruz, the New York legislator, referencing a relatively short-lived plan to issue state work permits to asylum-seekers. “We would be stepping into the shoes of the federal government around free speech and even around, not immigration enforcement, but I think public safety, because the way in which the government is carrying out its immigration enforcement is endangering the public safety of the residents of a particular state. There’s an argument to be made there that this is an emergency where the state can step into the shoes of the federal government and take control.”
“Could a state say, ‘We’re requiring federal officials to present a warrant?’” asked LaCroix. “That is right at the heartland of this deep question that asks, ‘Do we actually have a federal structure with states having some degree of autonomy?’ And formal line drawing would suggest: Yes, states can draw those kinds of lines in their territory over their persons, citizens, residents, and that is embedded in this long, long body of legal doctrine, some of which comes from this ‘new federalism’ conservative Rehnquist court.”
That gets us to the most uncomfortable question, which is the operational one. Let’s say a governor does decide that their realm of responsibility for the public safety and good order of their state requires limiting an out-of-control federal police force. They can develop this argument in court, they can get their attorneys general to defend it, but what happens on the ground? Does a governor order state police to, what, actively block the operations of federal officers until the latter can prove that they’re in compliance with basic legal provisions? What if the federal officers just don’t, or draw weapons on the local officers? It’s like a board game with a limited set of endings, of which a good chunk are, “Open fire.”
That’s not a position any governor wants to be in, though there could be some conceivable scenarios where a confrontation ends up as the best of bad options, which is really what all of this is about. As Eddington noted, California—like 19 other states—has what are known as state defense forces, separate from the National Guard. Yet “it is relatively small, is armed only with small arms (rifles, pistols), and has no armored vehicles.” Newsom could in theory ask the legislature to significiantly expand the California State Guard and better arm it, as well as order the National Guard to refuse illegal federalization orders, which of course brings us back to the line that no one wants to cross.
I reached out to 11 Democratic governors’ offices in immigrant-heavy states around the country with specific questions about policies geared toward restricting unlawful federal operations, up to and including use of force standards. Only two—the office of Hawaii Governor Josh Green and Maryland’s Wes Moore—provided concrete responses. Green’s office emphasized its “strong working relationship with our federal law enforcement and military partners” and then touted its lawsuits against unlawful federal activity. Meanwhile, a Moore spokesperson told The New Republic that their administration was “using every tool in their toolbox to protect all Marylanders,” citing the “dozens of lawsuits” they’ve filed against the Trump administration and noting that Moore is in “constant communication” with the state’s adjutant general. According to his spokesperson, “This is a personal issue for Governor Moore, as the son of an immigrant single mother.”
Unsurprisingly, it seems like most state executive offices are squeamish about this realm of possibilities.
It’s not looking like there are going to be any particularly happy endings here, and pure conflict avoidance has historically not been effective or favorably seen. There well should be some successive red lines that the federal government could cross that would trigger increasing levels of responsive action from states with a responsibility to protect their people. A failure to do so only makes the higher-order consequences more likely, and more dire.