Democrat governors have vowed to resist President-elect Donald Trump’s agenda if they believe it endangers personal rights and freedoms, but the murky boundaries between state and federal powers may complicate those efforts.
Following Trump’s convincing win on Election Day, Democrats including New Jersey Governor Phil Murphy, California Governor Gavin Newsom, Illinois Governor J.B. Pritzker and Massachusetts Governor Maura Healey drew lines in the sand over concerns that Trump would enact far-reaching new policies that they believe would breach the rights of their citizens.
One such policy is Trump’s plan to deport millions of undocumented immigrants, even toying with the idea of using military assets to accomplish the herculean task.
Healy in particular promised to file litigation against Trump’s administration if he goes ahead with the deportations. She had filed dozens of lawsuits against Trump while serving as the state’s attorney general during the first Trump administration.
“Every tool in the toolbox has got to be used to protect our citizens, to protect our residents and protect our states, and certainly to hold the line on democracy,” Healy said during an appearance on MSNBC.
Newsom went a step further, claiming that “freedoms we hold dear in California are under attack – and we won’t sit idle. California faced this challenge before, and we know how to respond.”
New York Governor Kathy Hochul created the Empire State Freedom Initiative in order to “develop strategies for protecting New Yorkers from a variety of policy and regulatory threats that could emerge under President-elect Trump.”
Pritzker’s press secretary directed Newsweek to the governor’s post-election comments, in which he announced a state-level coalition to resist Trump’s policies. He will work with Colorado Governor Jared Polis to guide a “nonpartisan alliance of governors working together to uphold and fortify American democracy.”
Newsweek reached out by email to the governors of California and Massachusetts and the Trump transition team for comment on Thursday night.
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Stanford Law’s Bernadette Meyler, an expert in constitutional history and constitutional law, told Newsweek in a phone interview that the question at play is one going back to the earliest days of the country’s existence—federalism, or what is the delineation of powers between the states and federal government.
“A lot of this is about the federalism balance and what is already the province of the states as opposed to the federal government,” Meyler said. “In many ways, some of the things Trump is planning to do would just be eliminating a federal bureaucracy … but leaving the state bureaucracy standing.”
Meyler believed that states can “in various ways” pick up the pieces of what Trump destroys and use it to enact their own enforcements, but she stressed that it really does depend on which set of laws are in question, such as education versus energy or climate policies.
“I think the basic thing is just the funding issues,” she added. “If the federal government defunds a lot of programs, it’s just going to be hugely expensive for the states to step in and fund them.”
“During the first Trump administration, that was part of the Tax Cuts and Jobs Act—to limit the extent to which state income tax could be deducted from federal income tax… so I think the funding part is going to be complicated for the states to push back on.”
Critics have raised concern that Trump could try to simply overrun the states through the Supremacy Clause—stated in Article VI, Clause 2 of the U.S. Constitution—which states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Meyler stressed that the clause only comes into effect when dealing with “legitimately enacted federal law,” and that the federal government already often creates carve-outs for states depending on what they’ve already enacted even in contradiction to federal laws.
“There are pretty specific criteria to figure out whether they preempt state law, and it has to be intended to preempt state law and also, or to have, such a big scheme like federal air traffic enforcement (which preempts contrary state regulation), but that’s because it’s such a comprehensive scheme,” Meyler said.
“There aren’t that many areas where federal legislation completely preempts or overrides what the states do, and the important part is the president can’t unilaterally decide that it does: It has to be Congress enacting something,” she added. “Even if this Congress is extraordinarily efficient, they’re just not going to be able to enact that many things quickly that will preempt the frameworks of law.”
Meyler speculated that instead Congress would have to lean on its powers under the Spending Clause—which gives Congress power over taxes and debts to “provide for the common defense and general welfare of the United States”—or must fall within the enumerated powers clause.
The enumerated powers includes powers over tax, commerce, the post office and armed forces, among others—effectively matters of national concern.
