Last night I got an email from TPM reader LE. She started by explaining that she’s been reading TPM for at least a couple decades, going back to earlier early adulthood phases of her life, and is now a state legislator in a midwestern state. So the idea that state governments are central to the current moment is of great interest and resonated with her. (A side note: this introduction warmed my heart on many levels.) But she asked, more as a rhetorical question, than as a question to me: what specifically? Yes, state power is clearly critical but just what elements of state power should we be focusing on, where are the specific resistance points?
I had perhaps an over-convenient answer: I’m focused on the big picture. The small picture, well, good question …
But it did make me start thinking: If the concept is right, operationally what’s first? If state officials are saying what should we be doing, what should people advise?
This got me to thinking and I thought of various ideas and various ways of answering the question. So let me share a few of those, not in any comprehensive way but as a way of starting a conversation.
The simplest way to answer this question is simply to say “no” and go from there. By which I mean identify things that the federal government is doing within a given state and set a goal of stopping it or impeding it and then creatively look at all the powers the state has to determine the best strategy. Where to start is simply to look at the worst thing happening, and there’s no shortage. We saw a good example of this yesterday from Mayor Michelle Wu defending Boston’s sanctuary city status over threats from Attorney General Pam Bondi. Even in its Trumpian/Supersized form the federal government has great difficulty exercising power in depth at the local level without at least the passive cooperation, if not active assistance, of local government authorities. Play to that fact.
My more concrete and specific answer is protecting the vote. I’ve written a number of times that this is a critical feature of the constitutional order in the current moment. States run the elections. So the federal government simply has no wires to pull or authorities to invoke to cancel elections or delay them or change the rules for them or really anything. That is absolutely critical in the current moment. The elemental right to vote and change the balance of power in Washington is owned by those state sovereignties. Congress can create new universal regulations for voting. Courts can play at the margins. But the state governments run the process.
States don’t need to “do” anything to make that the case. It already is the case. But of course there are lots of ways the White House will try to subvert or impact the election. It’s already trying to harass states into turning over voter rolls and using the power of the Justice Department to launch investigations. We can imagine scenarios where Trump wants to put a heavy National Guard or Immigration and Customs Enforcement presence outside voting stations on election days. It can use law enforcement to harass the mechanism through which the opposition raises money — see the attacks on ActBlue, etc. The federal government is vast and powerful. So even though it can’t directly take over election administration, the White House can pressurize the free conduct of the election process on numerous fronts.
So that’s the first order of business: safeguard the 2026 and 2028 elections. People doom-out about elections being canceled, or say they simply won’t be free and fair. But free and fair isn’t a binary matter. It’s a spectrum with infinite gradations. So, as I said, that’s the first order of business: safeguard the 2026 and 2028 elections. This builds on my argument yesterday about the states as the opposition’s strategic depth. Yesterday our friend Rick Hasen shared the draft of a political science researcher’s article with the cumbersome title “Can Federalism Protect Subnational Liberal Democracy from Central Authoritarianism?“. For our purposes and more straightforwardly, Can the states be the big line of defense against Trump? I have not yet read the full paper. But as it’s been explained to me the answer is, over the long term, no. Over the short term, yes or maybe. A friend asked me if this contradicted my thesis. I said not at all.
No one thinks, certainly I don’t, that you’re going to have autocratic authoritarianism in Washington and good old civic democracy in the states that want it. The federal government is too strong. It will wear the states down over time. Again, back to the idea of strategic depth. The idea isn’t that this is a viable strategy for the long run. Pakistan as a state can’t persist as a battered army rebuilding its strength somewhere in Afghanistan. The idea is that the states are a locus of power from which to defend and rebuild opposition until change comes to the federal government. So, at least as it’s been explained to me, this study seems quite consistent with my argument. And change will come to the federal government in one way: by the vote. So that’s the essence of the states’ role, the most critical use of that power.
Now let me shift gears from what’s first or what’s most important to how to think about using state power, the pure mechanics. One great challenge for the states is that they cannot easily intercede in the collection of taxes. Most blue states pay more in than they get in return. But the federal government acts on individuals, not states, to collect taxes. Gavin Newsom and other state elected officials in California have already been brainstorming out loud about how states could get creative in this way. States are massive employers. They could sequester or delay withholdings. There are possibilities there.
Another thought occurred to me with massive and unidentified ICE teams. State police entities cannot arrest or detain federal police or impede their lawful enforcement. But here we have a case where there is very genuine question of who these teams actually are. They routinely will not identify themselves to civilians. They wear no uniforms are badges. Will they identify themselves to state officials or police? It would obviously be a very edgy and aggressive move for state police to intervene in any way against people who are probably ICE agents. But in the current environment, there is often a more than good faith argument that we don’t actually know who these people are. If they refuse to identify themselves that speaks for itself. Of course, if state police arrested ICE agents, the federal government would go to court and get them sprung immediately. It’s straight up supremacy clause. But this goes to the nature of executive power. That complicates ICE’s work a lot. It might lead to a more orderly and proper system of self-identification. Again, this goes to the essence of independent executive power. It’s the ability to react and not simply react. It’s the ability to grind the gears, throw sand in the works, slow things down. Losing each time in court? Fine, find new things to try and spend time litigating those. And if you lose on those just keep going.
No one is imagining that this is a workable long term plan. It’s a fallback to defend independent opposition power and build it to retake power at the federal level. Along those lines there is a final point to consider. I’ve talked a lot here about different angles, cat-and-mouse games with the federal government, aggressive expedients that can likely be knocked down quickly in court. But we also need to see beyond the literalism and specifics. When a government is overbearing and unpopular, people like seeing resistance to it. They like seeing actors get in its face, slow it down. That is galvanizing. It shows that Trump and the federal government is not all powerful. We should not underestimate this galvanizing, catalytic effect beyond just what states can do to impede directly.
In any case, these are a few thoughts, initial brainstorms on the question. I invite your thoughts and suggestions.