From its domestic deployment of the National Guard to its politicized denials of nondiscretionary federal funds, the second Trump administration has embraced a politically-charged, even authoritarian, approach to governing that repudiates prior versions of our federalism, the Constitution’s term for the relationship between national government established by the 1787 document and the several sovereign states that preceded that document. Yet, as the contributions to this symposium explore, the several states are explicitly recognized in the federal Constitution as sovereign actors, with their own suite of protected rights and authorities. Over decades of precedent, the U.S. Supreme Court has affirmed and deepened those protections, often in the name of ensuring that states remain effective counter-weights to a potentially overbearing federal government. It has developed rules against federal commandeering, limits on unexpected conditions on federal funds, and a robust form of sovereign immunity when the state itself is sued. The result is a two-sided pattern of constitutional entitlements on the part of both the states and the federal government — a legal arrangement intended to generate a rough sort of balance between the national government and its subnational counterparts so as to insulate ordinary Americans from the overbearing ambitions of either sort of sovereign.
At different moments in American history, this balance has unfolded in different ways, with both states and the national government taking positions in ways that strike most of us today as reprehensible. For many people today, use of the term “states’ rights” today resoundingly and unavoidably conjures the baleful specter of Theophilus “Bull” Connor and Governor Orville Faubus, both staunch defenders of Jim Crow segregation. Yet it was also states that stood firm against the 1850 Fugitive Slave Act, and it was states that insisted on economic reforms to prevent the vertiginous concentration of corporate wealth during the Gilded Age. Federalism — and in particular the exercise of independent judgment by the several states — has many faces. It can take on the colors that the age demands, and cannot be reduced to those instances in which states invoked the Constitution as a shield for the ignoble institution of slavery or its successors.
As a consequence, broadly shared understandings of how federal-state relationships are supposed to work have tacked and modulated since 1797 with the changing political and economic conditions. At the risk of simplifying, it is possible to speak of three leading models of federalism. These, even if not helpful heuristics for today’s situations, offer a sense of what a well-functioning federalism might look like.
First, it is commonly said that a theory of federal and state actors as “separate sovereigns,” creating a system of “dual sovereignty,” characterized the American constitutional order for the decades after its Founding. This simple, almost Newtonian model has been challenged of late by legal historians, who weave a more complex tale. It is clear, however, that by the 1930s, any dualist system was dead — broken by the emergence of a large federal regulatory state in the New Deal that brooked few federalism-related outer bounds, and was embraced of necessity in the crucible of World War II.
Second, the collapse of separate spheres theories opened a space for an influential slate of “process federalism” theories that celebrated political and institutional safeguards baked into the formal and informal structures of political representation. The Columbia Law School scholar Herbert Wechsler, for example, flagged the states’ “crucial role in the selection and the composition of the national authority” through the choice of senators, House districting, and the Electoral College. All these, he suggested, acted as mechanisms that worked so as to give federal politicians powerful reasons not to encroach “on the domain of the states.” Once again, accounts of process federalism have drifted apart from the observable behavior of institutions and elected actors. In recent decades, for example, senators and representatives have arrayed themselves on increasingly polarized partisan lines. Their voting behavior, as a result, more and more weakly reflects the interests of their state, and tends to be dominated instead by the shadow of their party.
Third, in the second decade of the twenty-first century, a fresh wave of federalism scholarship suggested a need to start from a different feature of the political landscape. These scholars, led by former Yale Law School Dean Heather Gerken, pointed out that the federal government and the states often worked together to deliver a growing set of policy goals. These have ranged from infrastructure development (e.g., roads, airports, and energy grids), to vital, life-preserving benefits programs such as Medicaid and Medicare, to food and drug regulation, to child and maternal welfare. Rather than conceptualizing states as separate actors or political beasts, these scholars have described a bureaucratic apparatus in which the national government and the states are deeply interlocked, and thus surprisingly dependent on each other to advance policy goals of shared concern.
What has been striking about the second Trump administration, even in its first eighteen months, has been its wholesale repudiation of all three models of federalism. It has instead favored a top-down, authoritarian approach. This is characterized by coercion, demands for subservience, and even violence. Deployments of the National Guard in Los Angeles and other American cities, as well as the extensive and violent ICE and CBP operations in Chicago and Minnesota, are among perhaps the most salient and striking examples of this approach. But they are hardly alone.
Consider some of the other striking divergences from federalism norms that characterize the second Trump administration. As an example, the administration has withdrawn much needed federal public-goods upon which the states reasonably rely. At the same time, the administration has weaponized states’ entanglement in cooperative federalism programs, and their reliance upon certain forms of federal support, or at least cooperation. It has, for example, threatened to cut off all federal funds to the University of California and the Cal State systems, lest certain culture-war demands are met. Like demands have been leveled against Maine and California, as well as cities that have so-called “sanctuary” programs (really, lawful rules of non-cooperation with federal immigration authorities). And it has threatened to investigate or sue state officials it views as hostile to its agenda, and in some instances actually done so.
Put these changes together, and you have a dramatic, severe, and plainly politically charged phase-shift in the quality of American intergovernmental relations. Suddenly, the national government consistently acts as if it is not tied down by legal and statutory rules. Instead, it treats ideologically non-aligned states and localities with contempt and brute economic or military force (echoing its treatment of foreign sovereigns). And it simply threatens, or outright bullies — without real negotiating or deliberating together — to achieve what it wants. At times, it doesn’t seem unreasonable to describe this system as closer to feudalism than to federalism as the latter term is now used. One of us has used the phrase “agonistic federalism” to try to capture what is new here.
How novel is this situation, and how comprehensive has the change been? It would be foolish to claim that the history of federal-state relations has always run smoothly. Conflict between the states and the national government has been, to the contrary, almost endemic throughout the nation’s history. Yet the nature of that conflict has changed in an important way during the second Trump administration. Much of the previous federal-state conflict has arisen over the constitutionality of statutes enacted by Congress (or the validity of orders coming from federal judges). It has had a distinctively legalistic quality. Outside the context of the American Civil War, that is, it is hard to think of another moment at which federalism conflict takes the form of executive branch action — often in violation not just of constitutional interests on states’ part, but also of federal statutes that purport to set boundaries on what the president can do.
The following essays, like the chapters in the book from which they are drawn, Fight Back: How States Can Counter Authoritarianism (New Press, forthcoming 2027), suggest why this situation is not irreversible. They demonstrate that state and local governments have constitutional and legal powers that can be harnessed as a force to challenge repressive federal actions and to advance a more substantive and meaningful kind of freedom and equality — terms that can be understood, and conditions that can be enjoyed by conservatives and liberals alike.
The book from which these essays are drawn collects contributions by leading legal scholars, historians, and political scientists on how states’ constitutional interests can be deployed in a moment at which the national government behaves in ways that are hard to square with existing accounts of legality and constitutionality. We hope the resulting essays — several of which are adapted in abbreviated form here — will be especially valuable for state and local government officials, who are suddenly at sea in this new federalism landscape. To that purpose, we hope that the book offers a comprehensive toolkit for those people to inform their actions, and to stiffen the resolution of those wanting to keep faith with the very best of our constitutional tradition.
