There’s a point I want to make about this issue of state power as a bulwark against corrupt efforts to overthrow the constitutional order. It’s a small point and it’s perhaps implicit in the discussion to this point. But it’s important so I want to draw it out a bit.
As separate though subordinate sovereignties, the states have a vast pool of sovereign authority, much more than a lot of state officers themselves appear to realize. A lot of that is affirmative authority and authority so deeply embedded in explicit constitutional mandates that it is difficult for even a corrupt judiciary to take from them. But it’s not only affirmative power. It’s also the power to resist and not be pinned down. That well of sovereign power creates a lot of ability to bob and weave, evade and parry against a corrupt assault from a renegade executive.
In a sense it is a version of the old saw that possession is 9/10ths of the law. States not only have a lot of sovereign power. They own a lot of the country’s power-in-depth, the on-the-ground day-to-day-life power that most people experience in their daily lives. They own it and it is difficult to pry away from them, even in the face of adverse court decisions. Those sovereign powers and the ownership of so much state machinery creates a sort of free space to parry and evade, a space to play for time, that is extremely important in a moment like this. It may prove even more important than the more affirmative powers. And it is all justified because the federal power is now in corrupt, anti-constitutional hands. The country’s republican traditions have retreated to the Free States.
When I first started making these argument about state sovereign power, I saw a rebuttal (not to me but the general argument) that states or provinces simply lacked the power to maintain republican government when it’s been lost at the federal level. But that’s not the point. It would be foolish to imagine that the U.S. could become an autocracy at the federal level and civic democratic government could maintain itself in New York or California or Minnesota. The point is that the states can be a redoubt where the opposition to Trumpism can hold out, collect its forces, build power while it works to reestablish constitutional government at the federal level. So parrying, playing for time is in many ways the whole game.
The supremacy of federal law is a powerful, powerful weapon even in the hands of a corrupt executive. The supremacy is there for a reason. It’s the basis of the federal union, what makes the United States a nation-state and not a league or a customs union. And certainly the current, largely corrupted federal judiciary will aggressively uphold that supremacy. But even when states lose in the courts they can still refuse to put state power to work for that federal executive. They can simply not do it. A mayor or a governor can simply decline to put state policing power to work for the corrupt executive’s ends. The federal government and the courts have ways of dealing with such non-compliance, but not terribly good or fast ways. The simple fact that the lines of executive power in the federal government and within the states are not connected — no tether binds them to each other — has a vast importance which has yet to be fully appreciated.
