If people want to know where the most active resistance to the Musk/Trump regime is coming from, it isn’t the opposition in Washington, DC. No, it is the state governors and Attorney Generals that are bringing the lawsuits that are crippling the regime right now.
President Trump and his administration are being sued by 22 states and the District of Columbia, which say his attempt to freeze the federal budget is unconstitutional.
The order states that the government "must temporarily pause all activities related to obligation or disbursement of all federal financial assistance, and other relevant agency activities that may be implicated by [recent executive orders] … including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology and the green new deal."
The "green new deal" is not an official government policy but a framework for the government to view climate spending. The federal government also does not fund "gender ideology". However, Trump's executive order on transgender people has removed a number of books on supporting and accepting LGBTQ+ people, including children, from federal offices and agencies.
This announcement was issued by the President's Office of Management and Budget (OMB), which is set to be run by Project 2025 author Russell Vought.
The spending freeze has been temporarily halted by a federal judge until Monday as it faces legal action, not just from almost half of U.S. states, but also from public health groups and nonprofits.
It is the 10th Amendment and a receptive Extreme Court where the biggest resistance to the Musk/Trump regime can come to fruition. States have special standing to sue the federal government and their cases are more likely to be listened to and appealed to the Supreme Court. All that changes are the types of states depending upon which party controls the federal government.
States have long sued the federal government over alleged impositions on their prerogatives, but in 2007, after Massachusetts sued the EPA for failing to regulate carbon dioxide, the justices ruled for the state and said that states have special standing to sue in federal court to ensure that federal agencies are following federal laws. State attorneys general were more than happy to take advantage of the new leeway.
“What we’ve seen since around the George W. Bush administration is this massive increase in state lawsuits,” Tara Leigh Grove, a law professor at the University of Texas, told me. “It’s just the name of the states that change from administration to administration.”
This article looks at how the arguments over federalism have evolved and changed over time. Many view states’ rights with a well-deserved suspicion here but perhaps it is time to reevaluate that position now that we could be out of power for a very long time.
Federalism According the the Founding Fathers
James Madison wrote the most about federalism in The Federalist Papers #44-46. The Constitution was in response to “states’ rights” going amok in the Articles of Confederation.
The Founding Fathers were worried about a tyrannical federal government similar to the monarchy and Parliament under King George III in Great Britain. Their struggle and ultimate success of the Revolutionary War led to the creation of a weak federal government. The Articles of Confederation called for state legislatures to have the ultimate power (a single state could veto any amendments and 9 of 13 were needed to pass legislation). This severely limited taxation, the army, paying off the debt, and especially foreign policy.
By 1786, it was clear that a stronger federal government was necessary for the union of the states to survive. That led to the Constitutional Convention in 1787 in Philadelphia. The people there carefully crafted a series of checks and balances that would strengthen the federal government but not by too much. Some of the compromises hatched by the convention that touched on federalism include the 3/5th Compromise (the apportionment of Congress based on the number of slaves), the Connecticut Compromise (lower House based on population and and upper House with equal representation for each state). Until it was superseded by the 17th Amendment, another check on federal power was that the Senate was selected by state legislatures in every state. A Congressional veto over state laws was rejected by the convention but a supremacy clause was added that states that the federal government is the highest authority in the union.
Article IV of the Constitution dealt with federalism and the relationship between the states. The full faith and credit clause states that records and proceedings in one state count as records in proceedings in any state. The privileges and immunities clause means that a state cannot discriminate against people from other states. This was followed by a contentious one in the extradition clause which says that criminals fleeing from a state must be returned to a state to face justice. Thankfully, the 13th Amendment superseded the fugitive slave clause which meant that slaves had to be returned even if they fled to a state without slavery. Article IV also dealt with the admission of new states to the union on equal footing to the original 13 states while having the federal government being in full control of federal lands and colonies of the United States. Finally, a clause guaranteeing a republican government and protection from invasion or domestic violence was inserted.
There was no guarantee that the Constitution would be adopted. The first factions in the United States formed around whether to ratify the Constitution (Federalists) or reject it (Anti-Federalists). James Madison wrote three articles for the Federalist Papers about the topic of the relationship between the states and the federal government.
Starting with #44, he explains why some powers had to be reserved for the federal government.
A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:1. "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex-post-facto law, or law impairing the obligation of contracts; or grant any title of nobility. "The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.
In #45, Madison argues that the federal government is the only one strong enough to prevent conflicts between states, as well as protect the nation in times of war.
Madison notes the dangers and instabilities feared in a federal system, especially the concern that the national government could take too much power from the states or that the states might overthrow the national government. But he argues that the de-centralized nature of the federal system prevents this by being naturally harmonious and symbiotic; that the national government cannot operate without the state governments, while the state governments gain major benefits from the national government. He wrote: "the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty".
The state governments, Madison argues, are closer to the people and can focus on the welfare of the people, regulating ordinary affairs such as the lives, liberties, and properties of the people, as well as the internal order of each state, and should have numerous undefined powers to do so, while the national government, being bigger and possessing national resources, can bring victory in war, protect the people's liberty, and maintain peace between the states, and should have clear, few, defined powers to do so, mostly focusing on external objects such as war, peace, negotiation, and foreign commerce and national taxation. He suggests that in times of peace, the state governments will tend to be larger and more powerful, while in times of crisis and war, the national government will expand as needed. Such a federal system will bring the government as a whole closer to the people than a purely national form of government.
I bolded the most astute observation that the federal government expands its powers during a crisis vis a vis the states. This is consistent with what has happened in the history of the United States.
In #46, Madison predicted the Civil War that would occur 70 years after the Constitution was adopted. He says that an unpopular federal government would be resisted by the states and that many states could band together to oppose the federal government. In fact, this was why the Founding Fathers argued for a very small Army and reliance on state militias that would be loyal to their own states and not the federal government!
On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other.
The fears of a strong federal government were so rooted in the minds of the Anti-Federalists that the 10th Amendment was passed in the Bill of Rights. It states the following:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This is the favorite amendment of those who favor an extremely limited government but there actually haven’t been many court cases testing the legal theories of this amendment. That’s because historical events have basically superseded this amendment in practice.
A House Divided: Early Fights About Federalism
Terrible President, but Andrew Jackson was 100% correct to clap back at South Carolina during the Nullification Crisis of 1832.
Very early on, some of the Founding Fathers seemed to regret strengthening the federal government as much as they did. James Madison and Thomas Jefferson penned the Kentucky and Virginia Resolutions in 1798 and 1799 in response to the Alien and Sedition Acts being recently passed (coincidentally those same acts are being used by the Musk/Trump regime right now!).
Kentucky Resolution #1 stated:
That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Kentucky Resolution #2 followed:
That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," therefore the act of Congress, passed on the 14th day of July, 1798, and intitled "An Act in addition to the act intitled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the—day of June, 1798, intitled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force whatsoever.
The Virginia Resolution was very similar:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.
Every states’ rights enthusiast has cited these resolutions as the legal and moral justification for opposing the federal government. The resolutions were viewed as dangerous even at the time, with President George Washington appalled at them and most of the other states passing resolutions disapproving of this radical theory. It has been rejected in the courts numerous times but it was like a zombie that wouldn’t die.
The first major crisis precipitated by these dangerous ideas was the Nullification Crisis of 1832. South Carolina tried to nullify the “Tariff of Abominations” passed by President John Quincy Adams and amended by President Andrew Jackson. The forefront of the resistance came from the state legislature and from John C. Calhoun.
If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights, It is impossible to understand the force of terms, and to deny so plain a conclusion.
This radical reading of the Kentucky and Virginia Resolutions by South Carolina prompted James Madison out of retirement to assert that nullification was never the intent of these statements, but it was to no avail. This crisis was only averted when the tariff was lowered and President Jackson threatened South Carolina with federal troops.
Jackson knew the debate wasn’t over and a more calamitous debate was going to occur over the “peculiar institution” of chattel slavery. The would be the ultimate test of states’ rights.
The Federal Government Wins? Looking at the 14th Amendment
The 14th Amendment was remarkable in that it incorporated the Bill of Rights for the states as well. This amendment settled most of the early debates about federalism.
The decades before the Civil War laid bare the flaws of federalism and the early political system. The balance between slave and free states was carefully maintained (until the Compromise of 1850) in the Senate and the House was strongly pro-Northern even with the advantage of the 3/5th Compromise artificially raising the population of the South. The South wanted it both ways — when in power they wanted a strong federal government (to protect slavery) and when out of power they affirmed states’ rights (to protect slavery).
This all came to a head in 1860 with the election of President Abraham Lincoln. South Carolina decided that nullification and interposition weren’t enough and that secession from the union was the only means available to protect slaver interests. Ten other states would eventually agree and the Confederacy was formed. The North would win the Civil War (but not the peace) and secession along with nullification and interposition became a dead letter.
The 14th Amendment to the Constitution is probably the most important amendment since the original Bill of Rights. It should be seen as the response to the Civil War and especially to some of the flaws in the Constitution shown in the lead up to the conflict. Most importantly, it shifted power from the states to the federal government. This is a short primer on the most substantive section of the 14th Amendment — the first section.
The amendment's first section includes the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The Citizenship Clause broadly defines citizenship, superseding the Supreme Court's decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be U.S. citizens. Since an 1873 decision, the Privileges or Immunities Clause has been interpreted to do little. The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure; the Supreme Court has ruled that this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, as well as to recognize substantive and procedural requirements that state laws must satisfy. The Equal Protection Clause requires each state to provide equal protection under the law to all people, including non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting discrimination against people belonging to various groups.
Surprisingly, the Bill of Rights is still not fully incorporated against the states. It took until 2019 for the 8th Amendment’s excessive fines clause to apply to the states for instance. But it is clear that restricting the power of the states after the Civil War was the intent of the 14th Amendment.
The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. [...] [T]he provisions of the Amendment are to be construed with this fundamental purpose in mind.
The Strengths and Flaws of Modern Federalism
Old cartoon showing federalism as a balance between states’ rights and the federal government.
There was an echo of the earlier arguments over federalism once Brown v. Board of Education was decided in the 1950s. The Southern states created a strategy of massive resistance to this Supreme Court decision and used states’ rights theories such as nullification and interposition to argue their claims. The courts rejected all of their claims and once again the federal government sent in troops to enforce federal law over recalcitrant local officials. Once again, the federal government won and expanded their powers.
That doesn’t mean that the states don’t have power left. There are two avenues where the states still have power to shape federal law — enforcement within their boundaries and by passing test case and trigger laws.
The Supreme Court has ruled that federal funding cannot be used to coerce the states into becoming an instrument of the federal government. This was further applied to strike down mandatory Medicaid expansion once the ACA was passed. Instead, the federal government usually tries to get the states to cooperate to pass federal minimum standards via tying it to funding.
For this reason, Congress often seeks to exercise its powers by encouraging States to implement national programs consistent with national minimum standards; a system known as cooperative federalism. One example of the exercise of this device was to condition allocation of federal funding where certain state laws do not conform to federal guidelines. For example, federal educational funds may not be accepted without implementation of special education programs in compliance with IDEA.
That doesn’t mean the state governments just accept what the federal government dictates. Many state governments pass trigger laws that purport to nullify federal law but only when the Supreme Court overturns it. Other laws are left on the books for the same reason instead of being outright repealed. These are zombie laws that go back into effect if the Supreme Court overturns its own decisions later on. Finally, some states deliberately push the envelope knowing that only the Supreme Court can override the federal laws. These test case laws (anti-abortion ones were particularly in vogue before Dobbs) defy the federal government but not actively. With the current reactionary Extreme Court, those types of laws coming from reactionary states have more of a chance of being enacted than ones from more liberal states.
Conclusion
It is clear that traditional federalism (massive resistance to the federal government from a state) is not a solution to be used except in the most desperate of circumstances. Every time a state (or states) have tried it, the federal government wins and even increases its own power. Given the vast amount of resources and the backing of a professional modern army, the outcome of active resistance via nullification, interposition, or secession will not end well for those who attempt it.
The doesn’t mean that federalism cannot help us right now. Blue states can still look to the courts to overturn the most egregious of the actions the Musk/Trump regime is undertaking. We can pass our own trigger laws and test case laws in the event that the pendulum swings back in our favor. We can slow walk implementation of federal diktats coming from the regime since they cannot possibly have enough enforcement officers to enforce the laws everywhere. That doubly rings true when they seem to be firing so many federal officials!
The 10th Amendment has a bad reputation amongst liberals because of the historical association with some repugnant stances (slavery, resistance to integration) and reactionary politics. We need to learn how to make a liberal argument for this amendment and free it from the reactionaries that promote it. Instead of muscular states’ rights that seeks to nullify federal law, the 10th Amendment should be about cooperation between the states and the federal government. It is a bit hypocritical, but the 10th Amendment is useful to the opposing faction out of power!
