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 turbo-charged 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 they can arrest people for their political ideas and target the citizenship of politicians that they don’t like.
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. Gov. 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.
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.
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.”
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.
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 on 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.”
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.
“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.”
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.”
I reached out to eleven Democratic governors’ offices in immigrant-heavy states around the country with specific questions about policies geared towards restricting unlawful federal operations, up to and including use of force standards. Only two — the office of Hawai’i Governor Josh Green and Maryland’s Wes Moore—provided concrete responses. Green’s office enphasized 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.”
It’s not looking like there are going to be any particularly happy endings here, and pure conflict avoidance has historically not been effective nor 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.
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