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The primary drivers in the creation of the federal Constitution — James Madison and Alexander Hamilton — saw the several states more as problems to be solved or perhaps obstacles to be worked around than critical features of the new American national government they hoped to create. But that’s not how things worked out. The United States does in fact have a federal system, which chief justice of the Supreme Court Salmon P. Chase, just after the Civil War in 1869, described as an “indestructible Union composed of indestructible States.” That is a critical, central fact for anyone thinking about how to defy, delay and undo Donald Trump’s lawless effort to remake the American Republic into an autocracy.
In unitary states, lines of authority go from president or prime minister down to local officials. That’s not true in our federal system. The federal law is superior to state law. But governors don’t work for presidents. Nor do any other officials in state governments, whether they’re governors to state attorneys general or county commissioners or mayors. (The very important exception to this rule are the state National Guards, which in certain circumstances can be federalized and put at the command of the president — a key and potentially ominous detail we’ll return to.) What this means is that there are great stores of legitimate political power and authority in the United States which exist independent of the federal government and the power of the president. Inferior to that power, yes. But independent of it still. And that’s critical.
What we see today at the federal level is a degenerate, malfunctioning national government. Donald Trump is not acting as the chief administrator of the state. He daily reaches deep into the limbs and digits of the apparatus of the government and either commands or dismisses anyone who is not answering not simply to his commands but to his personal will and interests. His vision of the presidency is one in which his hold on the executive office entitles him to use the powers of the state to make war on the half or more of the country that doesn’t support him. He’s exploiting these unexplored and heretofore un-assaulted lacunae of presidential power every way he can. The branches of the federal government which are supposed to restrain a renegade president, in part because of jealousy of their own power, are mostly obedient to his control. He’s gone beyond the misuse of his nominal powers to simply stealing those entrusted to other branches. Two generations of anti-civic court opinions laid the groundwork. He justifies it with pablum served up by scholar-operatives who’ve spent half a century naturalizing and Americanizing foreign ideologues of warlordism into ersatz Founders. In many ways Donald Trump is already functioning as the dictator of the executive branch and he’s pushing against open doors in the other two branches.
But state governments aren’t part of that world. They’re separate worlds of sovereignty, inferior but parallel rather than subordinate. Critically, states run American elections. Within states’ domains, the power of action is on the other foot. What we’ve seen over the last seven weeks is action after executive action. Courts often momentarily halt or delay those actions. But it’s after the fact and reactive, usually incomplete. In states run by Democratic governors, and especially in those under unified Democratic control, Democrats hold executive power.
None of this is a panacea, of course. There’s still the supremacy clause. There is the darker shadow of a renegade president’s ability to nationalize state national guards, make lawless use of the Insurrection Act and more. Much of the terror of this moment is that those who support civic democracy and the rule of law feel, paradoxically, shorn of any basis of legitimate political power to act. But that’s not true. In a moment like this, when the supporters of civic democracy are temporarily excluded from all power at the federal level, it means falling back on those stores of legitimate power in the free states.
What does that mean in practice? It means inter-state compacts, much more extensive cooperation between and among these free states in which leaders serve the people rather than vice versa. We’re already seeing an ad hoc and embryonic form of this in the lawsuits brought by free state attorneys general against various Trump White House actions. But we need much, much more.
One critical necessity of the moment is allowing civic America to get a jump on the President’s latest depredations. Everything now is reactive. What new thing did he think of today? Being perpetually in a state of reacting is inherently demoralizing because it means losing or at worst fighting to a draw. The legitimate authority of the states is a testing and staging ground for evening out some of that score. Take elections themselves. The thing I hear constantly from people is that they don’t know or don’t feel confident there will be a 2026 election, at least not one that’s legitimately free. I don’t see it that way, precisely because states run elections. I’m quite confident that California and Illinois and New York are going to hold elections — and a lot of other states, too. But could that come under threat? Of course it could. So this isn’t a time to leave the matter to the inertia of past centuries of elections unfolding like clockwork.
It’s critical to reinforce the structure, regularity and robustness of the electoral machinery in every free state and in the ones already bowing to autocracy as well. State attorneys general should also be looking very closely at federal efforts to attack the ways Democrats raise money and access the courts. Right now. Look at the mounting harassment of ActBlue in addition to the executive order against Perkins Coie, which essentially functions as the Democratic Party’s law firm. It’s also critical for every Democratic governor to make sure they know who the state adjutant general of the state guard is. Is that someone who believes in civil government and the rule of law? That’s a talk they need to be having if they haven’t already. Like right now.
And it’s not only “hard” power. We have the benefit of knowing Donald Trump’s habits. He’s more than likely to single out individual states as examples. That’s where interstate compacts and cooperation come in. A single state should not and must face him alone — there’s money, legal support, all sorts of ways state governments can pool their robust and real legitimate authority.
As I’ve explained in other contexts, in a battle such as this, it’s not always the nitty-gritty and particulars that matter most. Actions themselves, performances of power, communicate messages and change realities in themselves. It’s critical not just for the states to band together to defend themselves and the Constitution, but to provide a proving ground for getting a jump on the President’s degenerate misrule. No one in opposition to Trump has any power in Washington, DC. But that’s not the only locus of power. And again, that’s critical.
A final point to remember. In our system, on specific questions of law and interpretation of the Constitution, the Supreme Court has the final say. But that doesn’t mean we are simply students waiting for the Court’s instruction about the contours and structure of the Republic we live in. Way back in the misty past of our history resides the basic fact that everyone who swears to protect and defend the Constitution of the United States has an obligation to interpret it and act in its defense. The Court doesn’t own the Constitution. It’s the venue for resolving specific disagreements about it. That’s not the same thing. And as I’ve argued recently, we should be clear that it is currently corrupted. We can decide as a practical matter to follow its rulings while recognizing that it is itself a deeply corrupted institution and we must act to save the American Republic and the Constitution from it. The central and essential point to understand is that everyone who is entrusted with legitimate political power in the United States has an equal right and, more importantly, an equal obligation to protect and defend the Constitution of the United States. Everyone swears that oath. When the President is at war with the Constitution, this raises novel and sometimes uncomfortable realities. But the duty and obligation remains undiminished.