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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.
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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.
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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 the president’s order purporting to revoke birthright citizenship, temporarily halting the federal funding freeze, and temporarily barring Department of Government Efficiency officials from accessing sensitive Treasury Department information. |
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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.
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For example, after President Trump sought 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 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 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.) 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 the Texas National Guard to make immigration arrests, while laws in Oregon and Illinois 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 that state court officers lacked the authority to arrest people based on a civil immigration detainer. Other state lower courts made similar rulings. Look for similar issues this time around, along with legal fights about the extent to which local governments can impose their own policies under home rule 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 transportation funds from sanctuary cities. |
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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.
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Anti-Abortion Strategies Center on 19th-Century Federal Law
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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 |
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Choice of Law in an Era of Abortion Conflict
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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 |
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State Gun Rights Amendments and the U.S. Supreme Court
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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 |
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What Else We’re Reading
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- The National Center for State Courts has updated dashboards 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.
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You May Have Missed
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- In the ongoing dispute over certification of a North Carolina Supreme Court election, a superior court in North Carolina affirmed in three one-page orders 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 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 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 about state applications of that test.
- The high courts of Maryland, North Carolina, and Maine 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 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. The county agreed to a replacement map that creates six “majority-minority” districts and an additional district that the plaintiffs said rectifies vote dilution of Asian Americans. The constitutionality of New York’s Voting Rights Act was
also unanimously upheld 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.
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Notable Cases
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Cherokee Nation v. U.S. Department of the Interior, 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
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State v. Tirado, 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.
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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database. We preview important or interesting cases set for oral argument each month. The February edition is available here.
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