Plus: The Comstock Act, gun rights, and more


[link removed]

States, including state courts, play a much bigger role than many people realize in determining whether and how federal policies get implemented — and in curbing abuses of power.

The early weeks of the Trump administration have included a jaw-dropping number of (often illegal) policy changes, many targeting immigrants, transgender people, and diversity, equity, and inclusion (DEI) programs, along with efforts to politicize, weaken, or eliminate government agencies. States don’t often get mentioned when we talk about checks and balances, but I’ve been struck by the varied ways that states are flexing their constitutional muscles in response.

To start with, states can be plaintiffs. Democratic state attorneys general have filed multiple federal lawsuits against Trump administration policies, scoring early wins in blocking

[link removed]

the president’s order purporting to revoke birthright citizenship, temporarily halting

[link removed]

the federal funding freeze, and temporarily barring

[link removed]

Department of Government Efficiency officials from accessing sensitive Treasury Department information.

State constitutions and laws can also be an important counterpressure on institutions considering “complying in advance” with the administration by changing their policies when they’re not obliged to do so under federal law.

For example, after President Trump sought

[link removed]

to halt funding for medical providers offering gender-affirming care to minors, several hospitals stopped offering these services to transgender patients even after a federal court blocked the funding freeze. Last week, New York’s attorney general warned

[link removed]

that withholding services from transgender individuals “is discrimination under New York law,” and 15 state attorneys general (including New York’s) said in a statement

[link removed]

that they “will continue to enforce state laws that provide access to gender-affirming care.”

States will also have to decide whether to cooperate with the Trump administration, for example, in providing assistance in implementing mass deportations. For the most part, the Constitution bars the federal government from forcing states to carry out federal policies. (For those of us who love legal jargon, the doctrine is called anti-commandeering

[link removed]

.) As a result, whether state and local officials can cooperate, must cooperate, or are prohibited from cooperating with federal officials is largely a matter of state law.

State policies vary widely: The Texas governor recently authorized

[link removed]

the Texas National Guard to make immigration arrests, while laws in Oregon

[link removed]

and Illinois

[link removed]

bar state and local officials from assisting with immigration enforcement at all.

Meanwhile, state courts will play a significant role in filling in the legal gaps. During the previous Trump administration, the Massachusetts Supreme Judicial Court concluded

[link removed]

that state court officers lacked the authority to arrest people based on a civil immigration detainer. Other state lower

[link removed]

courts

[link removed]

made similar rulings. Look for similar issues this time around, along with legal fights

[link removed]

about the extent to which local governments can impose their own policies under home rule

[link removed]

provisions that delegate some regulatory powers to localities.

That’s not to say that the federal government doesn’t also have its own “sticks” when it comes to federal-state relations. One of the big legal issues to watch for will be the extent to which the Trump administration can cut funding from states and localities that fail to cooperate with its policies. For example, Sean Duffy, the secretary of transportation, recently issued an order that could potentially slash

[link removed]

transportation funds from sanctuary cities.

I think that spending cuts of that scale are likely to be struck down by courts, both because there isn’t clear statutory authorization and because of legal doctrines limiting the extent to which spending can be used to coerce states. But figuring out where these lines get drawn will be one of many questions almost certain to land in the Supreme Court.





Anti-Abortion Strategies Center on 19th-Century Federal Law

Efforts to limit abortion access by relying on the 1870s Comstock Act, an anti-obscenity law that includes references to limits on mailing items for producing abortions, are occurring even in states with abortion protections — and raising new legal questions. “Issuing decisions on a largely blank slate, state courts will have a significant say in how federal courts later approach a law that could transform abortion access in America,” writes law professor Mary Ziegler of the University of California, Davis. Read more

[link removed]

Choice of Law in an Era of Abortion Conflict

If a New York doctor sends abortion-facilitating pills to a woman in Texas, and Texas sues the doctor for violating its abortion laws, which state law governs the doctor’s actions? This is an area where there isn’t much precedent. To simplify the resolution of bitter interstate conflicts, there is a pragmatic argument that the U.S. Supreme Court should issue a territorial choice-of-law rule based on federal constitutional principles, writes Roderick M. Hills Jr., a law professor at New York University. Read more

[link removed]

State Gun Rights Amendments and the U.S. Supreme Court

Dissatisfied with federal courts’ interpretations of the Second Amendment, gun rights advocates spent years lobbying for state constitutional amendments that require courts to apply strict scrutiny analysis to challenged gun laws. Eric Ruben, an associate professor at Southern Methodist University’s law school and a fellow at the Brennan Center, explores whether those amendments are still relevant since the U.S. Supreme Court has strengthened Second Amendment protections. Read more

[link removed]





What Else We’re Reading

The National Center for State Courts

[link removed]

has updated dashboards

[link removed]

that allow users to explore court types, jurisdiction information, and routes of appeal, as well as state-to-state comparisons of that information. Features include data on courts’ caseloads and states’ unique court names.





You May Have Missed

In the ongoing dispute

[link removed]

over certification of a North Carolina Supreme Court election, a superior court in North Carolina affirmed

[link removed]

in three one-page orders

[link removed]

the state election board’s decision to dismiss protests brought by the loser of that election, Jefferson Griffin, who argued that more than 60,000 ballots should be tossed out. Earlier this month, the Fourth Circuit Court of Appeals affirmed

[link removed]

a lower court decision to remand the dispute to the state courts, though it said that the federal court could hear any remaining federal questions after the state process concluded. The election’s winner, Justice Allison Riggs, had argued that a federal court should decide the dispute.

A state district court in Alaska denied a claim

[link removed]

by the League of Women Voters and others that the state must notify absentee voters if their ballot has errors, such as a missing ID number or signature, and allow them to fix those issues before the election. To address plaintiffs’ claim that the lack of such a “cure” system violates the right to vote under Alaska’s constitution, the trial court applied the federal test used to determine if an election measure is too burdensome for voters. State Court Report has written

[link removed]

about state applications of that test.

The high courts of Maryland

[link removed]

, North Carolina

[link removed]

, and Maine

[link removed]

all resolved challenges to legislation reviving child sex abuse claims that would otherwise be time-barred. The decisions joined a list of other cases, as previously discussed

[link removed]

in State Court Report, that diverge over whether these laws violate defendants’ “vested” rights — that is, rights that are secure and cannot later be taken away — by restoring expired claims.

A redistricting challenge brought under New York’s Voting Rights Act alleging that a legislative district map in Nassau County diluted the voting strength of Black, Latino, and Asian American voters has resulted in a first-of-its-kind settlement

[link removed]

. The county agreed to a replacement map that creates six “majority-minority” districts and an additional district that the plaintiffs said

[link removed]

rectifies vote dilution of Asian Americans. The constitutionality of New York’s Voting Rights Act was also unanimously upheld

[link removed]

by a four-judge appellate court panel. The panel reversed a November trial court ruling that vote dilution provisions in the act violate the federal Equal Protection Clause.





Notable Cases

Cherokee Nation v. U.S. Department of the Interior

[link removed]

, Oklahoma Supreme Court

Unanimously held that the governor possesses constitutional and statutory authority to represent the state’s interests in litigation involving tribal gaming contracts, including the choice of counsel who will represent his position. The governor is a named defendant in his official capacity in the underlying litigation, and the state attorney general sought to assume control of defending the state’s interests over the objection of the governor, who had already employed separate counsel to represent the state. // Oklahoma Voice

[link removed]

State v. Tirado

[link removed]

, North Carolina Supreme Court

Held that the appellate court did not err in addressing a defendant’s state “cruel or unusual” punishment challenge to his resentencing to consecutive life-without-parole sentences. His resentencing followed a 2012 U.S. Supreme Court decision that the Eighth Amendment prohibits laws mandating life-without-parole sentences for juveniles but not — as occurred at the defendant’s resentencing — trial courts in their discretion imposing such sentences.

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

[link removed]

. We preview important or interesting cases set for oral argument each month. The February edition is available here

[link removed]

.









[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support Brennan Center

[link removed]



Did you get this message forwarded from a friend? Sign up here

[link removed]

.

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]