The time is now for states to build capacity and will to redress injuries to their residents arising from constitutional and statutory violations of their basic rights to fairness and equal treatment from the U.S. government and anyone else. Repeated and well-publicized instances of federal agents’ violent repression against local communities require the United States to reconsider what is necessary to protect residents against both government and private excess that perpetrates harm. The failure of the federal government to correct the damage it’s done lays bare that it is no longer a meaningful backstop against discriminatory harm in communities.
The formulation Americans have relied on in recent decades was: federal law guarantees equal justice, federal agencies enforce those guarantees within the limits of their staff capacity and political will, and states largely defer to that balance, except in notable but isolated instances when states choose to challenge it. That formulation no longer operates effectively. The question now is what resources can states bring to bear when the federal government itself visits harm on constituencies it disrespects? The public needs to build a safety net that allows private citizens, acting in tandem with state governments, to hold federal – and any – actors accountable for harm.
Some states are beginning to take action to build that safety net. A handful of states have enacted laws or have bills pending that would permit residents to sue law enforcement officials for violating their constitutional rights, for example.
As important as these new state formulations are, they are narrow. They focus on the most visible – and certainly dangerous – formulation of federal power that is in the news today: federal law enforcement officers violently repressing residents during immigration-related actions. In addition to that urgent and deadly harm, residents now face many other forms of repressive federal action that cry out for redress. State legislative responses need to contemplate and address these risks to be fully responsive to the present and future danger for all in the United States.
As important as state litigation against the federal government is and has been, that litigation is only one tool that states have to provide an effective safety net for their residents. And for some harmful federal actions, a state litigation remedy is procedurally unavailable. States thus must look beyond that exclusive tool.
What States Can Do
While the federal constitutional scheme limits state regulation of federal actors, those limitations leave room for substantially more extensive state protection than states currently avail themselves. Consider some of the steps that states could take to protect their residents’ civil rights. For instance, states could follow the example of former Republican California Governor George Deukmejian, who 40 years ago signed into law a broad right for any individual to sue anyone who interferes with, or attempts to interfere with, their constitutional or statutory rights through threats, intimidation, or coercion. That law is also explicitly enforceable by California’s attorney general.
Likewise, states can, as many have over the years, provide more robust state-law protections for individual rights than federal statutes provide – and then back up those more robust state legal protections with the state infrastructure for their enforcement to ensure that the law on the books is the law in state residents’ experience. And states can, as some already have done regarding private actors, enforce federal civil rights laws on behalf of their residents against the federal government when it is the perpetrator of harm. If, for example, federal officials and federal agencies engage in race discrimination, or disability or sex discrimination, when engaged in purported law enforcement activities in local communities, states can represent their residents to enforce the federal laws that guarantee that no person will experience those harms.
To these ends, states need to think not just about new laws but new institutions. Effectively functioning state civil rights safety nets would, more specifically, incorporate all of the following elements:
- Comprehensive state laws protecting against discrimination;
- Independent state agencies with jurisdiction to enforce state and federal rights against any violator, with meaningful available remedies, as well as expert staff sufficient to meet the volume of need in the state;
- Mandatory transparency sufficient to allow meaningful oversight of agency effectiveness and public awareness of the scope of harms the agencies address, in addition to data collection and reporting regarding the status of rights protections in their state.
The need for comprehensive protection against discrimination follows not merely from the challenges states experience today to protect their residents against a divisive and weaponized federal government. The need also follows from the country’s founding guarantees that all persons must enjoy the right to equal treatment. A nation that is serious about that equality principle provides protection for its people in all the ways that exist.
New State Institutions to Protect Rights
In the most comprehensive formulation available to states, states could stand up, operate, and fully staff state civil-rights enforcement agencies with explicit authority to enforce – including through litigation and other legal means – the constitutional and statutory rights of state residents as against any entity that violates those rights.
These state agencies, so constituted, could challenge federal officials who violate residents’ federal constitutional and statutory rights. And these state agencies also could enforce robust state rights on behalf of their residents when it comes to state and local actors.
A parallel state enforcement structure could perform two crucial functions, one that responds to the current crisis, and a second that responds to the persisting reality of fragile rights protection. The first, time-sensitive virtue would be states’ meaningful response to the Trump administration’s attack on many of the statutorily protected beneficiaries of federal civil rights law, to ensure precisely the evenhanded protection the federal government newly refuses. And the second, at least equally important and evergreen virtue, would be enabling states finally to fill longstanding functional gaps in rights protection that follows from insufficient staffing in federal agencies.
The value of creating such institutions is not merely rhetorical. Imagine, for example, a small, rural police department that deliberately targets Black people when carrying out its low-level enforcement strategy. Its officers tase and otherwise use excessive force against Black residents, steal money from people with disabilities, sexually harass women held in custody as well as those who file criminal complaints, and arrest or illegally jail people for non-criminal activity. All this comes from a September 2024 report documenting findings from a Department of Justice inquiry into a Mississippi town. Nor was this an isolated case. When state court judges charge deaf or hearing-impaired persons for the cost of sign-language interpreters, as some state laws permit but federal disability law forbids, these state residents need protection and remedy as well. When students mock a middle schooler based on her skin color and belittle her for her accent, in conduct so extreme that she hides in a school bathroom to avoid her harassing peers – as the Department of Education Office for Civil Rights found recently occurred – this school community needs change and healing.
Operating staffed entities with jurisdiction to enforce these individuals’ rights means that states do not leave residents’ protection to the vagaries of elected attorneys general, or to residents’ (variable) capacity to find and afford counsel on their own. Instead states would provide to their people agencies whose day-to-day reason for existence is protection of the equal rights of all. Recent years have shown example after example of shifting priorities of states’ attorneys general offices when the elected attorneys general change. Independent agencies charged to protect rights of state residents would visibly and actually operate to fulfill those roles regardless of election cycles, serving as a meaningful check on abuse of power external to the attorneys general offices.
This institutional arrangement would parallel the theory of effective federal enforcement that, until recently, drove federal institutional practice: Congress created separate, independent, agencies with authority to enforce federal civil rights laws, including at the Departments of Justice, Labor, and Education, in addition to the Equal Employment Opportunity Commission. These agencies have had statutory authority to enforce federal civil rights law, without seeking permission from elected officials, against any violators. As constituted, these agencies have authority to enforce federal civil rights against any recipient of federal funds, and to limit the actions of federal agencies to ensure their compliance with federal civil rights law.
The independent state agencies proposed here are essential to a healthy democracy: states need independent agencies with jurisdiction to enforce their residents’ rights precisely so the valuation of those rights are evenhanded and not subject to political will. Agency independence insulates practitioners from the kind of corrupt practices the United States now witnesses from a president who treats the Department of Justice as if it were his personal law firm rather than a federal agency with litigating authority to assure justice for the nation.
Recent state practices confirm the importance of agency independence. Tennessee, for example, has recently eradicated its state human rights commission and moved its functions to its state attorney general office. The latter has received wide criticism for its hostility to comprehensive and full protection of rights for all state residents. For instance, the attorney general has written to Fortune 100 chief executive officers to warn them against operating diversity and inclusion initiatives that do not violate federal or state law, well exceeding his law enforcement authority. Operating a putative civil-rights function in an attorney general office whose leader’s political brand is synonymous with hostility to those rights not only provides no protection to state residents but also targets them for harm.
Adequate agency staffing can make or break the effectiveness of an institution’s work. Where existing state civil rights offices lack people to investigate and enforce their residents’ rights, states, unsurprisingly, resolve very few cases and secure very few remedies. For example, in fiscal year 2023, the state of Iowa operated a civil rights commission with seven part-time commissioners to hear cases, four attorneys, and 15 civil rights specialists. That body held 13 meetings, one hearing, and issued zero reports. In contrast, California employed 315 positions in its Civil Rights Department and launched 5,765 investigations, secured 788 settlements regarding discrimination in housing, employment, and public accommodations, and secured some $154 million in monetary relief for complainants. California, which has 12 times the number of residents the state of Iowa has, spent more than 25 times the funds for state civil rights enforcement to protect its people that year. That same fiscal year the state of Michigan increased funding for its Department of Civil Rights, allowing the office to hire 48 new staff, with the result that the office more than halved its backlog of cases, reducing its pending cases from 1,450 to 540. Michigan, with a quarter the population of California, spent half the amount that California spent for civil rights enforcement that year.
These data reflect the value of transparency for oversight and public confidence in agency work. Where state legislators can’t see what an agency does or does not do, or the scope of rights allegations or the resolution of cases, those legislators cannot effectively oversee their residents’ rights protection. And when there is a lack of transparency, the public lacks confidence in an expectation of equal treatment from their government.
As readily attainable as these protective state actions are, some states not only will not act to provide them but instead actively work to reduce equality protections for their communities. Iowa, which in 2025 became the first state ever to remove a protected class from state protection, took further action in 2026 to deny, in state law, any local government authority to enact more comprehensive civil rights protections than already provided under state law. This state repression, combined with federal weaponization of rights protection, underscores the imperative to act wherever doable elsewhere.
Many states are beginning the long overdue work of backfilling rights protection, recognizing both that the federal government is not reliably fulfilling its responsibilities and that it is itself now an affirmative perpetrator of harm against residents. States that are serious about that work, as every state should be, will begin to examine the effectiveness of their state infrastructures and to build the systems needed so that all people, every day, have access to the country’s guarantees of equality.
