Federalism and Interstate Conflicts
Transcript of panel from Symposium: The Power of State Constitutional Rights
The following is a transcript of the panel “Federalism and Interstate Conflicts,” which took place at Thorne Auditorium, Northwestern Pritzker School of Law, Chicago, Illinois, on Friday, Nov. 7, 2025, as part of the symposium, The Power of State Constitutional Rights. The transcript is edited for clarity.
In this session, participants discussed what happens when state supreme courts interpret rights in ways that conflict with other states, and how those disputes are playing out on such issues as reproductive rights.
Speakers:
- Bridget Fahey, Professor of Law, University of Chicago Law School
- Roderick M. Hills, Jr., William T. Comfort III Professor of Law, NYU School of Law
- Jenny Notz, Illinois Solicitor General, Office of the Illinois Attorney General
- Adam Sopko, Associate Professor of Law, University of Colorado Law School
- Julia Spiegel, Founder and CEO, GovAct
Moderator:
- Ryan Park, Solicitor General, North Carolina
Kathrina (Kasia) Szymborski Wolfkot: Good morning everybody. Welcome to day two of our symposium, “The Power of State Constitutional Rights.” If you weren’t here yesterday, I am Kasia Wolfkot, senior counsel at the Brennan Center.
Just a reminder, if you need CLE credit we have Illinois CLE credit for people who are here in person, you have to go scan a code at the front desk. And with that I’m going to welcome the interim dean, Zachary Clopton, who is moderating our first panel, “Federalism and Interstate Conflicts.”
Zachary Clopton: Great to see everyone back for day two. Really excited to talk to you all today about federalism and interstate conflicts with an amazing panel of guests. I’m going to start down on the far end. Longer bios for each panelist, as you know, are available in the materials. But down at the end…and as a heads up, I’m going to come back to you for the first question also, so you can prepare. Julia Spiegel, founder and CEO of GovAct. Then we have Adam Sopko, associate professor of law at University of Colorado Law School and graduate of this great law school. Next we have Jenny Notz, solicitor general of the state of Illinois, who knows a little bit about federalism and interstate conflicts at the moment. Then we have Roderick — Rick — Hills, the William T. Comfort, III Professor of Law at NYU Law School. And last but certainly not least, to my immediate left, Professor Bridget Fahey, professor of law at the University of Chicago Law School.
So as I said, this is a panel about federalism. So you can think about federal-state relations, as well as interstate conflicts, so the horizontal federalism issues. There’s obviously overlap between those two topics. I’ll as moderator try to make sure that we touch on both, starting first with the vertical federalism dimension. But also as has been the case throughout the conference, please text in your questions, and we’ll make sure we have time at the latter part of this session to hear from you all as well.
But we’re going to start kind of big picture, and I just wanted to give everyone a chance, starting at the far end with Julia, to just say a little bit about what they think federalism, what they think federal-state relations are today. How would they describe the relationship between the federal government and the states and, to the extent they’re interested, is what they see today something new? Is this a continuation of something we’ve seen in the past? What about it is new and interesting? So Julia, why don’t you kick us off.
Julia Spiegel: Happy to start. Thank you, Dean. And thank you to Brennan for putting together this timely panel. We were just talking about how prescient it was given all that we’re seeing unfold in the courts and politically. I will just say my orientation here, I feel like a bit of an interloper on the panel in the sense that I am out there as a practitioner working on law and policy in support of governors across the country, as opposed to a scholar. So I’ll give the “from the trenches” perspective on what this federal-state relationship feels and looks like in this moment, which I’m sure you all have really interesting perspectives on as well.
From where I sit, it feels like a tug of war, a push and pull, where on the one hand we see this devolution and relinquishment of certain federal functions that the federal government historically for decades and decades has filled, on things like FEMA, the federal emergency response, pushing it down to the state saying we’re going to do less of this federally, so you, states, have to pick this up.
We’re seeing it with public health, where certain core functions at HHS and the CDC in terms of disease outbreak monitoring, vaccine preparedness, they’re just not filling that role anymore. And again, that’s devolving to the states to say to the extent these are issue areas that matter to your people, which we have found they do, that the states and governors in particular are having to pick up that mantle.
And then on the other hand, we see things like the National Guard takeover, which I know we’re going to be getting into in a moment. But that’s an area in a core police power area where typically governors have great authority over their National Guards. There obviously are exceptions, but in these circumstances we’ve seen in Oregon, Illinois, California, the governors have not consented to the takeover of their National Guards for the purposes that the Trump administration has described.
And that creates real tension in terms of who’s in control over the states, who’s there on the ground protecting people in communities, the control that state police and others typically have over those matters. So over a core area, a core duty that states and governors typically fill, that is where we really are seeing the rubber hit the road. And I know we’ll get into more theories and discussion as to why that is, but it does create a real set of tensions and a real need from where we sit to coordinate across state lines because of the nature of the threats, the nature of the challenges and how states are being asked to do so much more or less.
So I don’t know, part of that, the devolution of core functions that doesn’t feel like just business as usual to me in terms of the federal government just stopping doing a whole set of things that it used to do, nor does the takeover of the National Guard and the kind of aggressive maneuvering feel of the same flavor either. So I think there’s some interesting new threads to pull on in this moment that I look forward to hearing what others have to say.
Adam Sopko: I just want to join the chorus of thanks to the law review and to Brennan Center for this great conference and for including me in it. I guess to me it seems like at a certain level friction and contestation between states and the federal government are kind of baked into our structure.
For as long as the country’s been around, we’ve had kind of conflict between the two systems from fugitive slave laws to maybe more modern regulatory showdowns in that sense. This maybe seems kind of like just another point on this kind of continuum, but I guess in other ways this seems perhaps… there are features of our current moment that seem distinctive. I think one way is that this feels a little less actually like a state-federal issue and more of a red-blue issue. And so in that sense it feels perhaps more partisan than in the past.
I also think that there are features of this that seem a little more coercive in the sense that the federal government seems to be isolating single states to almost make examples of them. So for instance, the federal government just shutting down funding a program in Maine to feed indigent kids because the state allowed two trans girls to compete at a track meet, and the governor stood up to the president at the White House. That seems perhaps distinctively coercive.
There’s also, we’ve talked about the deployment in National Guard, we’ll talk about that more. And so I guess in a sense the kind of intensity of our current moment seems perhaps familiar, but I guess the coercive and partisan nature of it seems somewhat new. All right, Jenny.
Jenny Notz: Hi and good morning everyone. I feel really honored to be here. Thank you for including me. And so in my role as a state SG, I oversee the appellate practice and particularly the U.S. Supreme Court practice for the state of Illinois. And I interact with a lot of other sort of like-minded SG’s offices in the multi-state litigation that we have been bringing against the current federal administration. So that’s kind of what I hear and what’s in my bailiwick to talk about. So I guess what I can say is traditionally our office has worked cooperatively with the federal government of different administrations in different areas. I mean certainly consumer-related issues, antitrust-related issues, even sometimes criminal law-related issues where there might be joint task forces.
Sort of my observation, and this is sort of less related to the actual work I do, is that that has become increasingly challenging in the current moment and that we’re also adverse to the federal government in a number of cases. I looked at the number of cases, affirmative cases we’ve brought. It is at this point I think, well above 40 on a variety of issues.
And then we’re also facing a number of cases in a defensive posture. So certainly from the litigation perspective, I think federal-state relations at this moment are probably more — I’m saying something you already know — but antagonistic than they’ve been in the past and so far as the state of Illinois is concerned.
Zachary Clopton: Great.
Roderick M. Hills, Jr.: Well, I think I don’t really have an answer, but I do have a framing, and that’s that you can think of state politics as nationalized, in which state politicians really are identified by the R or the D by their name. And by that we mean a national political party. In that case, state elections are second-order elections in which voters really don’t care what the state official does locally. What they care about is whether they’re pro-Trump or anti-Trump. Or you can imagine state politics as being actually turning on local issues, in which case an Iowa Republican will be very different than a Texas Republican.
And you can imagine, say, the National Governors Association or state organizations pushing it back against the feds on matters that have nothing to do with national politics. That’s like state politics in the 1970s, right? “Hey, don’t impose unfunded mandates on us,” says the Republican governor of Utah and the Democratic governor of New York. That’s not where we live today. I think our state politics are extraordinarily nationalized, such that if you’re a Republican governor, you’d love to have Trump take over everything. And if you’re a Democratic governor or get a Democratic AG, you’re going to be pushing back a lot.
In that sense, state and local elections become elections for the federal government. When Mamdani runs for mayor of New York, it’s all about, “Oh, is the progressive wing of the national Democratic party getting ahead, and what is his position on something that New York has no power over — Gaza,” right?
Roderick M. Hills, Jr.: That is an interesting situation to be in. One of my favorite professors, Jessica Bulman-Pozen, has a classic article in the Harvard Law Review saying today, state and local elections are entirely second-order elections. If you’re a state representative especially or a state senator, nobody knows your name, nobody knows who you are. All they know is, are you Republican or a Democrat? And by that they mean are you MAGA or are you anti-MAGA? Which means that no matter how innovative you are in the state legislature, you might have a great YIMBY program for housing, or heck, congestion fees or containerizing garbage. Nobody knows and therefore nobody cares. And that means that essentially state-local politics becomes the pawn of national politics. I think more than ever we are like that.
But I do see some glimmers of hope. In the last New York City election, Mamdani was running as the anti-Trump guy. Cuomo was running as a pro-Trump guy. I’m rather disappointed by that. On the other hand, we had three measures on the ballot for affordable housing, and Republicans could have backed those, right? They had a libertarian aspect to them, they all passed, but it was touch and go. City Council was furious about these measures and actually semi-illegally spent money to stop them because it was stripping City Council of power.
You know what Trump doesn’t care about, this measure. You know what Democrats nationally have no opinions about, this measure. Mamdani at the very last minute endorsed them. AOC could have gone either way. I find that to be a green shoot, a glimmer of hope. Because the more that state and local governments and politicians are responsive to concerns that have nothing to do with national politics, the more they’re actually performing a useful role. The more that they’re simply by-elections for national politics, I’m not sure what they’re there for. And so I’d like to see more just local issues that are purely local issues. California on housing is great. The next mayor, Mamdani, can’t you containerize garbage. I think that would be wonderful. And I’m sure of one thing Trump doesn’t care one way or the other.
Zachary Clopton: Bridget.
Bridget Fahey: So a lot of terrain has been covered. So I’ll talk about what has been occupying my attention a lot over the last six to nine months, which is the constitutional rules that help safeguard the capacity of states to be independent in the way that I think Rick rightly hopes that they will be. So in our structural constitution, a lot of what gets attention are these horizontal separation-of-powers doctrines.
Everybody is talking about the theory of the unitary executive, about the role of the Supreme Court and whether the president can disobey a Supreme Court ruling. In the federalism world, the central structural principle that safeguards the role of states in our constitutional system is called the anti-commandeering rule.
I’m sure many people are familiar with it. Rick and I are the academics who are maybe the most obsessed with it, but interest in the anti-commandeering rule waxes and wanes. But I know Rick has been interested in it a long time. I’ve been interested in it a long time. I think Dean Clopton asked, “What’s new?” I think there is a new practice of commandeering. Commandeering looks different today than it did 30 years ago when the Supreme Court described the rule in its present form in New York v. United States and Printz.
And you know, these famous cases sort of, there haven’t been a lot of commandeering cases after that. There’s been a small handful, three or four depending on how you count. And they all challenge statutes that predate Printz. So I think a lot of people might say, “Hey, those cases were successful, there isn’t commandeering anymore.”
I think the lawyers in solicitor general Notz’s office might disagree because the states are pressing commandeering challenges a lot. And you know, the way I teach the anti-commandeering rule, the federal government can’t direct states to regulate or participate in a federal program. They also can’t coerce states to participate in a federal program. They can’t use deceptive drafting to induce states to participate in a federal program.
Those latter two kind of strategies are rules of their own, the anti-coercion rule and the Pennhurst clear statement rule. But I think we just see them as extensions of the anti-commandeering rule. So this whole portfolio of federalism doctrines, they’re doing a lot of work in litigation, they’re not getting as much attention in scholarship. So I want to make a pitch to the scholars in the room to think about them.
But I’ll just list a couple of ways that the new commandeering is different than the old commandeering. For one thing, New York and Printz, the original cases that give rise to this rule, they are statutes passed by Congress that direct states to assist a federal program without state consent. So they say you must participate in this federal program.
The new commandeering, it won’t surprise anyone who’s following politics, is much less legislative and much more executive. So it’s happening in the administrative state and it’s happening in the face of executive orders. So the president’s executive order on information silos directed states to provide unfettered access to their data to the federal government. That was just a pure directive, kind of a lot like New York and Printz.
But we also see something like the funding freeze, which was an effort to use — I also teach contract law — use a kind of contract law maneuver that we would call economic duress. In the middle of a contracting relationship, one party says I’m going to breach unless you renegotiate this contract. And the funding freeze felt a lot like that.
So we see these innovative mechanisms of coercion in the federal government. We also see kind of the federal government, and especially the executive, pushing on this Pennhurst clear statement rule. This rule says that when the federal government invites states to voluntarily participate in federal programs, it has to tell them exactly what their obligations are. It has to articulate those obligations unambiguously. But we see new forms of ambiguity, and experimentation with uses of ambiguity, to try to hook the states into doing something they may not want to do. So we see really ambiguous phrases like “radical gender ideology.”
So if a state says we agree not to promote radical gender ideology as a condition of receiving a grant, I don’t think it’s clear to almost anyone, including the people who drafted that phrase, what that phrase might in fact mean. We also see legal ambiguity. Does the president have the power to impose this condition on a grant or can only Congress do that? Has Congress authorized the president to impose that condition? That’s a new form of kind of ambiguity that I see the current administration exploiting.
But I also want to emphasize that this new practice has roots in blue administrations too. So the Obama administration pushed a kind of commandeering practice as well. First Trump administration, the Biden administration, and now we’re seeing a kind of difference in scale and really creative strategies. But it’s been happening inside the federal administrative state and the White House for a long time.
The other thing that I would mention where we see kind of a new commandeering practice is new forms of state capacity, state governmental capacity, being seized by the federal government. So New York and Printz are about the legislative process. Executive officials, we see the federal government going after state data at unprecedented scale. We started to see that with sanctuary cities in the first Trump administration.
But the SNAP lawsuit is an example. The states have a lawsuit about a federal effort to non-consensually take state Medicaid data that they’re not really authorized to have under the statute. We see federal efforts to access state lands, state courthouses to perform federal immigration enforcement proceedings even when state court is happening. We’ve seen the arrest of a state judge for choices she made inside her courtroom because ICE officers had entered as members of the public and said we’re now conducting a federal administrative proceeding inside the lobby of the state courthouse.
They weren’t invited to come in, but they said we have a right to be there, and you can question whether that right can exist under the anti-commandeering rule. And then we can, I think, even see some of the National Guard cases as being efforts by the federal government to seize state coercive authority outside the boundaries authorized by the Constitution. The Constitution does authorize the federalization of state national guards. But in any case in which the federal government does that beyond the constitutional boundaries, then I think it becomes a simple case of commandeering a form of state capacity, this coercive power that states rightly should be able to apply to their own projects and not have involuntarily applied to federal projects. So that’s just a kind of pitch for tracking the anti-commandeering rule and anti-commandeering practice with the kind of acute awareness that we track the unitary executive or other structural kinds of constitutional principles because it so deeply implicates what states are able to do and are attempting to do in this moment.
Zachary Clopton: Great, wonderful answers across the panel. And Bridget brought us right to where we were going to go next, which is the “elephant in the room,” which is the increased federal law enforcement, and sometimes military presence in American cities. And so I’m going to go the other way down the line, and Bridget can kind of continue…pick up where she left off. What should we make of these surges of law enforcement and military presence? What tools do states have to potentially respond and where do you think we’re going from here?
Bridget Fahey: Well, the first tool that states have is litigation, it’s the collaborations that we see across states and that have been really quite successful. We’re still… litigation, as everybody here knows, takes a long time. And we’re not going to see huge Supreme Court cases that establish profound federalism principles in the first six months. We’re going to see temporary restraining orders and preliminary injunctions that begin to kind of signal where courts are on these questions. And courts have been quite receptive, I think, to the arguments that states have been making in their defense and their invocation of these principles.
I think we see that in the National Guard case. There’s a lot of yet to be made law related to the Militia Clause in the Constitution and the Posse Comitatus Act and the Insurrection Act, which are the statutes and constitutional provisions that most directly speak to what’s going on. So I think we’re going to see a lot of novel legal questions, but we see states that are receptive.
One thing that I’ll put on the table and then I’ll let the other panelists speak to these questions too, is I think it’s important to keep in mind in these cases about coercive authority, about military authority or policing authority, where the Supreme Court is so tempted to defer to the judgments of the federal executive.
It’s really important to keep in mind that there are 51 executives in our nation. There’s a federal executive and there are 50 governors, and governors have a constitutional role in overseeing their state militias. So when the court is tempted to say, “Oh, this feels law enforcement and we courts, you know, that doesn’t feel like the kind of thing that we should be evaluating, whether an insurrection has happened.” They should think there are some other executives whose views might matter about the stability of our cities and those are the executives inside the states.
So when a state says, “Our guard does not need to be federalized, you do not have our consent to federalize the guard,” which is a kind of statutory requirement in certain cases, in which the guard is federalized. I think courts should see that as a very profound expressive judgment made by state executives and not indulge in this idea that there’s the president and the president’s view of security and that’s the only view of security that can matter outside a judicial one, which courts have always been hesitant to make judgments about security related questions.
Roderick M. Hills, Jr.: Well, on the tools that are available to a state to push back against say DHS, we all live in the shadow of what I regard as big 19th century mistakes. And the biggest mistake is McCulloch v. Maryland because McCulloch v. Maryland announced a principle of supremacy that made sense when the federal government was a teeny tiny little federal government, but today seems bizarre.
And that principle of supremacy is when a federal official or institution is acting within the scope of their federal duties, the states just have to get out of the way. It’s not a question of balancing the state interest against the federal interest, you’ve just got to move aside because federal law is supreme.
In McCulloch, it was…Maryland was taxing a bank that was an instrumentality of the federal government. And the answer was, well, the bank’s deposits are totally immune. Doesn’t matter what Maryland’s interest is in revenue, doesn’t really matter whether the tax actually is designed to destroy the bank. And Marshall said this is a clean, simple principle, but what this means in theory, and maybe sometimes in practice, is that if ICE officers say, “Oh, we’re in the process of apprehending someone unlawfully present in the country. We understand that we’re operating in a state that has, say, the common law of trespass and has a whole bunch of nuisance law, but we’re going to park our trucks and cars on somebody’s front lawn and we are going to kick open the door in violation of state trespass law, and we’re just going to march into somebody’s private house and we’re going to disregard everything.”
Zoning laws, nuisance laws, common law of all sorts. In theory, McCulloch says, well, they’re just absolutely free to do that if they’re acting within the scope of their federal duties, which is frankly insane. So in that McCulloch-like world where federal law automatically trumps state law and federal officers acting within the scope of the duty of enforcing federal law automatically set aside federal law, a lot of what states try to do, say ban officers from wearing masks or ban private detention centers or prevent DHS from building a fence across the village road, whether they can do that or not doesn’t depend on state law, but on federal law. The main weapon right now of people at the state and local level who want to fight the feds is, ironically, federal law. So whether or not, for instance, ICE officers can be masked, it depends upon an obscure little rule that’s in this code of federal regulations that says, when it’s safe to do so, ICE officers have to identify themselves as ICE officers.
And so if DHS is violating that rule, which is federal law, they’re not acting within the scope of their federal employment. Likewise, there was a great case from Judge Hunt’s chambers in, I think, it’s Broadview, Illinois; it’s Illinois territory, in which ICE officers said, or DHS said, “Oh, we need to ward off these protestors, and so we’re going to build a giant fence around our federal facility” that literally went across the village road, just blocked the road, and the chief of police and the mayor said, “Well, you know, this prevents EMTs, this cuts off a road, you can’t do that."
They said, “We’re the feds, your road rules don’t matter.” But, of course, Judge Hunt went to the federal statutes and said, “Actually there’s no federal statute that specifically authorizes you to block a road. And because you don’t have federal authorization, you’re not within the scope.” And so, in a short opinion, but a wonderful supremacy clause opinion, told ICE to back off, but not because of anything in state law because of federal law.
And so right now I think the way that the state and local officers can push back against the feds is by really aggressively reading federal statutes and rules, probably in light of maybe an anti-preemption canon or a state’s powers cannon and hoping the courts buy that. And we’ll see, the more outrageous the acts of ICE officers are… imagine if ICE officers got hand grenades and guns and they barge into a courtroom and they say, “We don’t have to check these, we can walk right through your metal detector.” Well, are they authorized to do that by federal law? Is there a clause in federal law that says you can bring your weapons anywhere even into a courthouse or into a building where weapons are not allowed? Good question, but it’s a question to which state law, in theory at least, is irrelevant because Chief Justice John Marshall wrote an opinion that is really stinking up the room today.
Zachary Clopton: Well, speaking of state officials who might be challenging federal authority, Jenny, do you have thoughts on the law enforcement or National Guard questions?
Jenny Notz: So I mean this obviously is pending litigation. We’re right now preparing supplemental briefing on the issue that will be filed in the U.S. Supreme Court on Monday, and then simultaneous reply briefs the following Monday. So I am unable to speculate about where all this is headed, but I’m obviously curious about others’ thoughts, but to the extent it’s useful, I kind of thought I might sort of describe what our litigation looks like because that sort of illustrates some of the questions that courts are being asked to decide without a lot of precedent to rely on.
There are sort of three significant cases being litigated right now in Illinois, one of which is ours, Illinois v. Trump, that challenges the president’s decision to federalize and deploy the National Guard ostensibly to protect federal officers, and federal property, who are in the process of enhanced immigration enforcement and largely around the Broadview detention facility that is located outside of Chicago. And that I think a lot of people in Illinois and Chicago, even though it’s been there for decades, really hadn’t heard a lot about until recently.
But what the record has shown in our case is that there have been protests at that facility for many, many years, relatively sort of quiet protests, but with the enhanced immigration enforcement, obviously the protesting became enhanced as well. And so in, let’s see, early October, the president made an announcement that he would be federalizing several hundred members of the Illinois National Guard and then another several hundred from Texas and then a smaller number from California. And we promptly sort of sued because this was done over the governor’s objection, which is very, very unusual, to seek to enjoin that deployment on the theory that it really was not necessary.
And the federal statute that allows the president to nationalize or federalize and deploy National Guard over a governor’s objection basically describes three circumstances in which this can occur. One is in the case of an invasion, one is in the case of a rebellion. And one, the final one, is where the president concludes that he’s unable to enforce federal law using the “regular forces,” and “regular forces” in the U.S. Supreme Court has come to take on a lot of importance, as I’ll get to in a moment.
And so basically in litigation, what the federal government said is that this federal statute that allows the president to federalize and deploy the National Guard over the governor’s objection was appropriately invoked here because we have circumstances that constitute both a rebellion and where the president is unable to enforce federal immigration law. And the district court did grant a temporary restraining order after looking at a significant amount of evidence. And the federal government’s theory was that these protestors were so sort of out of hand that immigration enforcement was unable to occur, particularly at the Broadview Detention Facility.
What the evidence showed that the district court credited was that in fact, yes there is some protesting occurring, but that state and local law enforcement is appropriately keeping the protesting under control, consistent with the protestors’ exercise of their First Amendment rights. And that federal immigration enforcement was in fact occurring as demonstrated by the fact that by the federal government’s own numbers and press releases, quite a lot of — thousands and thousands of people — were being detained for alleged immigration violations. The federal government promptly sought a stay pending appeal from the Seventh Circuit and an administrative stay.
The Seventh Circuit gave the federal government very limited relief, in so far as what the Seventh Circuit said is, "We’re going to stay the district court’s order federalizing the National Guard, that is, they don’t have to leave Illinois, but we are not going to stay the order deploying the National Guard.” So at present the National Guard is not deployed in Illinois and sort of what the Seventh Circuit reasoned is it deferred to the district court’s findings of fact about the facts on the ground and basically said, we don’t think this is like an emergency situation that would allow for emergency relief.
And we do, in fact, think that the district court did not abuse its discretion in concluding that there was not a rebellion, nor was the president unable to enforce federal litigation or federal immigration law. Now the case is in the U.S. Supreme Court where the federal government has renewed its request for a stay pending appeal and also an administrative stay. Sort of much to our surprise, the U.S. Supreme Court has not granted relief, but they have asked for supplemental briefing.
And my understanding is that this is the first time the Court has asked for supplemental briefing in sort of this emergency stay posture. And I think it sort of gives credence. This is sort of an aside, but what Court watchers have observed is that the Supreme Court does seem to be using the emergency docket to really sort of litigate the merits of cases, which is unusual and not consistent with history. But in any event, they’ve asked for supplemental briefing and the question they’ve asked is something that wasn’t litigated below and hasn’t been litigated elsewhere, which is “What is the meaning of ‘regular forces’ in that provision of the statute?” I said that the president can federalize and deploy the National Guard under federal law where he cannot enforce federal law using the “regular forces.” And the parties in our case and in the Oregon case and the California case had assumed that by “regular forces,” what the statute was referring to was federal civilian law enforcement.
So ICE or Customs and Border Patrol, perhaps federal marshals, perhaps the FBI, but the Supreme Court is asking by “regular forces,” does that mean the military? And if that means the military, what does that mean for the federal law that describes the circumstances under which the president can federalize and deploy the National Guard? So I think that, and here this is where we get kind of into the speculation because this is being briefed, but a lot of people have written about this, so I don’t think I’m revealing secrets.
I think there’s a view that the Supreme Court, at least some justices, might be interested in the idea of possibly interpreting the federal statute to hold that the president cannot deploy the National Guard in a state over the governor’s objections unless the president first uses the military and then determines that even with the use of the military, he’s still unable to enforce federal law. If, of course, the Court were to go in that direction, then that would kind of raise questions about what are the circumstances under which the president can deploy the military domestically, for domestic law enforcement.
And I think that, to state the obvious, raises a lot of very sort of complicated perhaps worrisome questions, both about how you define those circumstances and also about the extent to which the president’s determination that those circumstances are satisfied is reviewable by a court. So I think I’ll end with that.
Roderick M. Hills, Jr.: Can I just say one thing?
Zachary Clopton: Go for it, Rick.
Roderick M. Hills, Jr.: Advertisement for professors, the “regular forces” argument that’s been referred to is entirely the result of Professor Marty Lederman of Georgetown University, who filed a brief saying this early 20th century statute used the word “regular forces” entirely to refer to the army. The legislative history here is absolutely overwhelming, but I’m…law professors have been insulted by Chief Justice Roberts too long. It’s nice to see that a law professor’s finally driving litigation. So good for Marty.
Zachary Clopton: Well speaking of law professors, Adam, thoughts on these questions?
Adam Sopko: Sure. So my thoughts may dovetail with Rick’s prior comments, not the advertisement. So states have prosecutorial power, criminal prosecutorial power, so federal agents are subject to the same criminal laws that we all are, murder, trespass and so on. And states have pursued these cases for over 200 years against tax collectors and postal workers and park police, and mixed success, some successful, some not so successful. As Rick mentioned earlier, the supremacy clause insulates…does provide some level of immunity, especially when they’re acting within their role. But even when they are acting within their proper role, whether it’s CBP or ICE or whatever it might be, if they’re kind of going beyond what’s required within that role in a particular instance or acting unreasonably, the Supremacy Clause doesn’t actually insulate them necessarily. And so in some of the instances that we’ve seen in our communities or on the news, there might be some cases that some DAs or an AG or state’s attorney, whatever it is in the particular state, could bring. And maybe that could be one that sends a message that states have these tools and that they’re willing to use them in certain instances.
Zachary Clopton: Yeah. And Julia, someone who advises governors and thinks about these things, what are you thinking when you see these images on the news?
Julia Spiegel: Horror mostly, but I will dovetail it back to your first prompt, which is I do think what we’re seeing with this federalization and deployment of the National Guard over the objections of governors shows a real change in the sort of state-federal interplay. The National Governors Association, for instance, did not issue a statement objecting to this trend that we’re now seeing across several states and that has been threatened to be extended to many others. Notwithstanding the fact that ordinarily you’d think that for any governor, they wouldn’t want the threat, this kind of cudgel hanging over their head, that even over their objection, that their guard could be taken over and deployed in their state even though the facts on the ground don’t bear it out, or there doesn’t seem to be sufficient legal justification.
So as a result, we’re seeing a real fray of cross-state infrastructure to coordinate. Multiple governors have withdrawn from the National Governors Association, which typically had all 50 and where you’d see coordination, but out of such frustration that even on a principle of this matter, that you couldn’t get a broader suite of governors to speak out. So Governors Pritzker and Newsom withdrew. We had already seen other more moderate governors like Governors Kelly and Walz leave the National Governors Association as well.
So some of this cross-state coordinating fabric and just core bedrock principles that you’d think would be broadly applicable are no longer resonating with the same number of folks. And the Solicitor General mentioned that the Texas Guard was deployed here to this state, again over the objection of the governor. So I think that is increasing this interstate conflict posture.
I’ll also just zoom out a little bit just from my posture — and we support governors in looking at every tool they have available in this moment. Some of it is litigation of course. We also have seen Governor Pritzker create a commission that is chaired by two former judges to essentially fact find and do accountability work here. So encouraging folks to document what they’re seeing with ICE and the National Guard and others and make sure there’s a record that hopefully someday could be used for some broader purpose. Obviously using the bully pulpit and working closely with local groups and local electives to try and speak out and forestall further deployments.
We’ve seen that happen in Baltimore, for instance, with Governor Moore and the mayor there speaking out together. So far there hasn’t been a National Guard federalization and deployment, but it may well come. But what I want to name is that I think seeing this evolution of these tactics starting in California and then moving to Illinois and in Oregon and more, this to me is a really scary sign of what’s to come as we march towards elections in '26 and '28 and this notion that a new tactic and lever is being deployed even if ultimately it may be stopped by the courts. In the meantime, there are troops on the streets and how that can suppress the ability for free and fair participation in our democracy, whether that’s peaceful assembly.
There are lots of concerns, for instance, articulated that with the No Kings protest planned that the threat of further National Guard takeovers would deter people from going out into the streets. We didn’t see that happen, but it’s a risk. We obviously have concerns and needs to prepare around the election and where National Guard forces could potentially be deployed in ways that would intimidate or suppress the vote.
So what I’d encourage everyone to keep a close eye on is not just the litigation, which is absolutely critical, but also just the way the tactics are being tried out and honed as we march towards the bedrock of our democratic institutions, including elections and how that may be increasingly used as this vehicle. And can we be fast enough at the gubernatorial level in terms of using all those levers fast enough with the courts to try and counteract that suppression?
Zachary Clopton: Thanks. So now we’ll do something a little different. Everyone always does the lightning round when you’re running out of time. We’re going to do the mid-panel lightning round. We talked about law enforcement, but there are so many other federalism issues that are getting our attention today. So I’m going to go down the line starting with Julia, to flag for the audience one issue. You know, one minute, what’s something else that you are tracking on the federal-state dimension, whether it’s a subject matter issue or a different way of characterizing it that you’re really following. And then, as folks are texting in questions, you’re welcome to ask for follow up and further discussion. But Julia, what’s another one of these federalism issues that you’re really paying close attention to today?
Julia Spiegel: Two very quick things,: very sexy topic of grant certifications, but the really, I joke, but adding these conditions that very well, in many circumstances, I think the courts have found are unrelated to the grants themselves, but that are used to try and commandeer, coerce or to force jurisdictions, including the states and localities, into doing the federal government’s bidding just to get basic funding for their operations in the states.
That is a trend that I think is very alarming and requires massive resources for the states to…how can they actually litigate over every single grant certification requirement? That takes tremendous resources and time and capacity and meanwhile they need resources. The other one I’ll name that we’re watching is in the reproductive rights space. I think many folks thought there’d be far more aggressive federalism type tactics deployed to try and undermine reproductive freedom in the states. And that has been much quieter, but an area that we’re quite concerned about.
Zachary Clopton: Thanks.
Adam Sopko: Continuing the trend of sexy topics, mine is adequate and independent state grounds. So this is a wonky topic that is known to scholars of federal courts. It basically divides the line between state and federal court systems. It’s relevant because it informs a big premise of those of us who think about — bringing this back to the topic of the symposium — state constitutions and state constitutional rights…is that when the Illinois Supreme Court says that their constitution protects a right beyond what the federal constitution does, or maybe the federal constitution doesn’t protect it at all, that that’s final, and that is it. And adequate and independent state grounds is one of the main doctrines that ensure that that is true. It’s what SCOTUS uses to determine what’s federal law and what’s state law.
And recently in the last five or six years, SCOTUS has been taking fewer state court cases, but the cases they are taking are increasingly raising this question of adequate and independent state grounds. And they’ve been narrowing it and compressing it. So for those of us who think about state constitutional rights and state courts, this means that they’re kind of increasing their influence over the content and meaning of state law as state courts kind of say it’s maybe like the new commandeering in a sense.
Jenny Notz: I’ll sort of maybe kind of pile onto what Julia was talking about relating to funding, federal funding. And this for me at least so far, I think, is an area where the states have found a lot of success in pushing back on the federal government’s efforts to withdraw previously promised funds to add conditions to funds going forward. And also, in some circumstances, basically to penalize certain states because the federal government disagrees with their political leadership.
Jenny Notz: A lot is written about how very successful the federal government has been in the U.S. Supreme Court on these emergency applications. And I think that that is very true. But the federal government also has not taken a lot of cases to the Supreme Court in emergency postures. And that really includes the federal funding cases. The only cases that I’m aware of that they’ve taken to the Court really have to do with sort of forum.
And so what the Supreme Court has said in a pair of cases is that if your dispute with the federal government over its decision to withdraw or add conditions to federal funding kind of really sounds in contract — it looks like a grant, it’s a grant termination — that needs to be brought in the federal court of claims. The states are not used to bringing those cases, but we’re bringing them now that we’ve been told this.
And then the Court has also said, if your dispute kind of doesn’t look like that, doesn’t look like a contract-based dispute, it’s more a challenge to a change in policy. So if the federal government says as they’ve said, like in the NIH case, “Going forward we’re going to give grants based on our priorities, related to sort of gender ideology or DEI” or whatever, that type of case can still be brought in district court. And so the states have recalibrated and they’re bringing their cases in the forums that we’ve been told to bring them. And by and large as we have litigated them have been getting interim relief and, just say, I will hope that that success continues.
Zachary Clopton: Right. Rick.
Roderick M. Hills, Jr.: I think the Tucker Act thing is the biggest thing, but since you mentioned the Tucker Act, I have to go to plan B. There’s a bunch of cases involving FDA preemption that I think are really interesting from the Third and the Fifth Circuit. So the FDA has labeling rules about drugs. Can states add remedies against pharmaceutical companies that may be in violation of federal rules? And the Fifth Circuit has said yes. Can states say you should have supplemented that federally required label? The Third Circuit has… and the pharmaceutical company will say, “Well that’s a matter of federal law and federal labeling requirements are exclusive and preemptive of state requirements.” And the state will say, "Yeah sure, but we’re actually trying to enforce federal law. There’s a duty to supplement your label.” And so we, as a state personal injury lawyer, will sue a pharmaceutical company saying you violated federal law, we’re going to sue you in damages in state court for the state tort of not complying with federal law. Is that okay? Third Circuit says yes. You can use state law, in other words, to supplement the remedies available under federal law.
And that matters a lot because the remedies under federal statute suck. They’re basically cease and desist orders, small fines, injunctions. You know what the remedies are under state law? Punitive damages, right? And compensation and pain and suffering. And so the pharmaceutical companies are very concerned about this, but the lower federal courts have been relatively tolerant of state tort law being used against pharmaceutical companies who violate federal law, in effect state tort laws becoming a supplementary remedy system for federal statutory law. I think that’s kind of interesting.
Julia Spiegel: I’ll mention a couple of things really quickly. One is I’m tracking some of the policy choices in states to de-lockstep. Lockstepping is a concept that comes up in state constitutional law when states interpret a constitutional provision in the state constitution that is the same as a constitutional provision in the federal Constitution — like a guaranteed right to free expression — the same as the federal Supreme Court. States, of course, aren’t obligated to do that. It’s the state constitution. It has its own history and purpose.
And so there are lots of debates in state constitutional law, to what extent should you tie your constitutional interpretation to the federal government. But there’s lockstepping in lots of other ways. So, for example, we saw a lot of states say, “Hey, we follow the CDC’s vaccine recommendations,” and then in recent times have said, “We can’t trust those anymore. We are going to de-lockstep and start following our own vaccine recommendations.”
So I see that, and I totally co-sign Rick’s opening comments about cheering independence in states from the federal government, so I’m following that. Doctrinally, I’m following the use of a doctrine that was really unpopular among, I assume, many blue states, called the equal sovereignty doctrine, which was announced in a case Shelby County v. Holder and used to invalidate parts of the Voting Rights Act. But the basic principle of the equal sovereignty doctrine is the idea that states have at least some unspecified entitlement to be treated equally, or maybe equitably, or maybe only treated differently for rational reasons, or we can think about many other ways of cashing out this doctrine. Right now the federal government has taken this kind of partisan federalism idea to such an extreme that they’re kind of willing to say “Here’s a grant that Congress has required to be allocated according to a formula, but we don’t like blue states or we don’t like the immigration policies of blue states. So we’re going to kind of deviate from that formula in order to punish blue states and reward red states.” So I think that doctrine could come into play in those cases.
And then finally, I am so happy that solicitor general Notz mentioned the court of claims because I’ve been just cheering lawsuits in the court of claims for the last nine months, and I think it’s a great place. It’s not good for lots of reasons. You can’t get an injunction in the court of claims, for example. But if you have a contract-like instrument with the federal government and they’re — and that’s not just the states, it’s also universities for example — establishing good constraining law that allows states and universities and contractors to rely on the federal government. In the court of claims, I think, is an impact litigation opportunity not to be missed for the people who have the capacity to press those claims and live without the injunctions. So I am continuing to cheer impact litigation in the court of claims.
Zachary Clopton: Thanks. So as promised, we’re also going to talk a bit about the horizontal dimension, the interstate conflicts. I’m tempted to just say “interstate conflicts question mark” and turn it over to the panel. But I’ll provide a little more context, which is at the same time, often in highly related contexts to the federal-state conflicts, we do see conflicts between states often though not exclusively along the blue-red divide. So I wanted to give a chance for each panelist to just give some kind of opening thoughts on these interstate conflicts — which are the ones that they find interesting? Again, what’s new here, what’s worth tracking and what their assessment is of where we are? So Bridget, I’ll let you go first, and then we’ll go down the line one more time.
Bridget Fahey: Well obviously the towering one is reproductive rights where we’ve seen efforts by red states to assert their authority extra-territorially. My suspicion is that other panelists will have lots of thoughts on that. So I’ll mention some of the other interstate conflicts that I see as important. One of them that I have been tracking very carefully because I also study data and kind of technology policy is election-related interstate conflicts.
So states rely on data supplied by peer states in order to check their lists for voter fraud. And there have been several iterations, which I think will be very significant in the next elections. There have been several iterations of horizontal collaborations designed to improve the quality of data that states can use to discern whether a person is registered in multiple states and may have committed a voting infraction. But we also see these deeply inflected with politics and we’re kind of moving to a regime in which we have blue states that have one data-sharing consortium and red states that in some cases at least are hoping for lower quality data because it is more likely to reveal kind of false indicators of voter fraud. You know when you compare lists that just include a person’s first name, last name, and birthday.
Some great empirical work by Michael Morse, who’s a professor at the University of Pennsylvania Law School, shows you just get a lot of matches, and they’re different people, just a lot of people have the same first name, last name and birthday. But those matches have been held up as evidence that there are people registered in multiple states and voting multiple times, and that is serving a kind of function for people who want to propound the idea that there is a lot of voter fraud. So my hope is that states can see reason and coordinate. There’s an organization called ERIC which is serving as a clearing house for interstate voting data and initially there were red states and blue states participating in ERIC. There was a movement by a group of red states to pull out of ERIC. My hope is that states will see reason and focus on the kind of policy of having secure elections rather than the kind of propaganda of whether elections are secure or not.
Roderick M. Hills, Jr.: Well I mean the big gigantic issue, of course, is the interstate abortion battles, and there’s just two situations which are kind of perplexing because you’d think they’d be more clearly defined, but they’re not, because we haven’t had battles like this since the 1850s, when the Fugitive Slave Law and Full Faith and Credit and Privileges and Immunities about how slavery could travel across state lines was being litigated.
So situation one and two: a medical provider, situation one, in state A provides abortion services advice or drugs maybe by Zoom to a person in state B. Can state B, let’s call state B Texas, bring civil or criminal actions against that provider in state A, say it’s California or New York?
That situation one, we’d say, “Oh wow, Texas is reaching out into California state or New York. Can they do that?” Or say a person from state B travels to state A to obtain an abortion, and somebody in state B invokes state B’s law against the abortion provider in state A or against the person who traveled to state A. Can you do that? These are phrased as extra-territorial problems. And I think the law here is unbelievably unclear given how you’d think the situation would’ve risen more often. If a medical provider is purposefully availing themselves of another jurisdiction by sending products into that jurisdiction or providing advice to somebody in that jurisdiction, I think the law is that you can, the other jurisdiction can, haul that provider into their court, can get personal jurisdiction over that provider for civil remedies.
But there is a difficulty, what if there’s no real civil remedy? What if it’s more like a penalty? Texas has something called a “bounty” law where they say anybody can recover $10,000 bucks against anybody else who gets an abortion that’s illegal under Texas law. Is that bounty law something that you can enforce against the medical provider? Because there is something called the penal law exception, which is one of the more obscure areas of Full Faith and Credit, which is, states don’t have to respect other states’ penal laws. Ordinarily, if a doctor says to somebody in Texas — a doctor in New York says to somebody in Texas — “Here’s some drugs.” That doctor is definitely amenable to personal jurisdiction in Texas. And if they violate Texas law, they’re liable for damages. That’s an easy case.
But usually those are civil damages. Do New York state courts have to enforce a criminal penalty against that doctor? That’s a more difficult question. Take the second problem. Somebody travels from Texas into California or New York to get an abortion. Can Texas say our criminal law follows you because you are a Texas citizen? In international law, American or U.S. criminal law does follow our citizens around. So if somebody from the United States would go to, say, Thailand and engage in an illegal sex act with a minor illegal under U.S. law, they could be prosecuted criminally in the United States.
Why? You’re a U.S. citizen everywhere. There’s universal jurisdiction over you based on your domicile in the United States if you violated U.S. law. But is that true among the states? Does Texas have jurisdiction over its residents wherever they go? Does Texas follow a Texan wherever they go? That’s a difficult question. Normally, if a Texan goes to, say, Las Vegas to gamble, they’re governed by Nevada law. And, indeed, Texas has never dreamed of enforcing its anti-gambling laws — it does have anti-gambling laws — against somebody who had a good time in Vegas. What goes down in Vegas, stays in Vegas.
But that’s just a tradition. Now Texas wants to push the envelope and say, “Well, we can enforce our law anywhere.” And I just think that’s an interesting question. Now I have my opinions about how those disputes should be resolved, and I think they’ll probably make people on both sides angry. But I’m not going to belabor people with my opinions. I just want you to know that when you read about those disputes in the paper, there’s not an obvious answer in the doctrine.
Zachary Clopton: Jenny.
Jenny Notz: So an issue that presents interstate conflict that’s impacted my office’s practice for many, many years, unlike some of the things that we’ve been talking about this morning, for long before the current administration, is Second Amendment rights. States have very different policies with respect to gun rights. Often states that are right next to each other can have very different policies. And it seems like that sort of presents two sort of obvious sets of issues. One that my office has been involved in litigating, and that is if somebody is licensed to exercise… to carry a weapon or whatever… exercise their gun rights in an adjoining state, to what extent does Illinois have to respect that license, or can Illinois put sort of greater restraints on firearms rights when that person is in Illinois?
The other set of issues that my office watches very closely, is less involved in directly litigating, is, of course, firearms can cross state lines. And so if another state, an adjoining state, has a liberal firearms policy, what if people buy firearms readily in that state and then bring them to Illinois, and wouldn’t be able to buy those firearms here in Illinois? And some local governments in Illinois have tried to litigate these issues against those firearms purveyors. It’s proven fairly difficult to do so, I think for some of the reasons sort of described in the abortion context, kind of to what extent can people in one state sort of reach across state lines and seek to essentially impose their sort of policy preferences on people in another state?
The only additional thing I would say is that some of the issues related to abortion have, I think, started to kind of percolate around gender-affirming care. States have very different policies relating to gender-affirming care, and we know from recent Supreme Court precedent that states that do not favor gender-affirming care, particularly for young people, do not need to require it to be available. And so in response to that, Illinois has much like in the abortion context, it has what are called “shield” laws that are designed to ensure that people who obtain abortions or gender-affirming care in Illinois, even if they’re not from Illinois, or providers of these services in Illinois, are, hopefully, protected from investigation and enforcement by other states. Because what our laws say is that state officials will not, cannot, cooperate with investigations or enforcement that come from out of state. I mean interestingly I would say those laws, at least in Illinois, haven’t really been tested. And I would also say in the gender-affirming care context, the problem right now is not what other state policies are doing, but is — and I think Professor Fahey maybe started at the very beginning talking about this — coercion from the federal government and, basically, the federal government’s efforts to withdraw funding, Medicaid funding usually, from people who provide gender affirming care or even from hospitals where gender affirming care is provided. That kind of seems to have been the rub in this context at this moment more so than the interstate differences.
Zachary Clopton: Adam.
Adam Sopko: So this is maybe a somewhat different take on the horizontal federalism question, which is how state courts frame their state constitutional decisions and kind of allowing for cross pollination across state lines.
So one example where we’re seeing courts in some instances tailor their doctrine just really specifically to certain unique features of their state is in partisan gerrymandering. Something that the partisan gerrymandering cases after Rucho… something that we talked about or heard about yesterday, and an important case that I think came up there out of Pennsylvania, League of Women Voters from six or seven years ago, the court invalidated the state’s congressional map there purely under their state constitution. And the basis for their decision when interpreting their constitution was on like really narrow features of the state, like the kind of political repression of Quakers and how certain geographical features of the commonwealth — which I can attest to, as I grew up in Pennsylvania — made it hard for certain communities to participate in the political process there, and other things informed the content of that provision and kind of dictated the outcome.
And after that case, some states read it pretty abstractly and did the same thing, but others kind of treated it as like an almost quasi-empirical — this is a recent case in New Hampshire — almost like a quasi-empirical opinion where they said, “We just don’t have these features within our state.” And so like “we’re just not Pennsylvania, and we’re just going to go a completely different way from Pennsylvania,” like they did in New Hampshire.
And so I think in this moment when more questions are kind of coming to the states, a challenge for similar litigators is how they’re going to kind of balance using that rich history and features of a state constitution that might increase their likelihood of winning in that particular state, with it maybe narrowing the reach of that decision and almost limiting it to that state entirely.
Julia Spiegel: So I’ll answer with a slight corollary to the interstate conflict question, which is what I’d call mutual aid or mutual defense of states that are facing increasing interstate conflict. So, for instance, from a policy standpoint, when Texas was adamant about busing people to other states — immigrant communities with no warning and just sending them off to other states — we had to band together to give each other early warning that buses of people were heading their way and how to stand up makeshift facilities to support these folks and figure out where they could go, where they could actually get support and reestablish their lives. That was really unprecedented and created huge political and policy blowback, but was an area where then other states that were the recipients of those buses that were unannounced came to each other’s aid.
Another example of that in the reproductive rights context is when, about a year and a half ago, this was during my last period of time working as counsel to Governor Newsom in California, our neighbor Arizona, the state supreme court had ruled that a Civil War era abortion ban could go back into effect, not immediately, but there was a time trigger. And so the question for us in California was how can we support abortion providers and patients in Arizona who are facing the complete shutdown of their ability to provide reproductive healthcare in the state?
So I, one of my very last gasps in that office, drafted a law that was ultimately passed very swiftly, that enabled Arizona providers and patients to seek refuge in California to get care within California. Normally, the practice of medicine is regulated by each state and that you have to be licensed in that state as a provider, and instead we said “Arizonans, both patients and providers, you are able to come to California and receive that care within our borders if you can’t within Arizona borders.”
This was actually based off of military spousal law where licensing requirements that are usually very rigid and very protective in each state are much more permissive. So that when the military has to deploy to different states and jurisdictions that spouses that travel with them are able to utilize their licensure. And so we modeled it off of that bill. So I think with increased interstate conflict comes increased creativity, I think, around how to come to the mutual aid and defense of other states facing those kinds of strictures.
Zachary Clopton: Great. And that last answer is a great segue to where I want to go next. So first of all, congratulations to the audience. These are an amazing and robust list of questions that were sent up. I’m going to try to tie a few of them together, which are… I think, one way to think about it is, what is the appropriate role of courts and litigation as opposed to other tools like electoral politics, moving public opinion, legislation, executive action? One version of the question that we got is can the Supreme Court be trusted to enforce federalism principles in a fair and non-partisan way? But I think again, the broader question is, we’ve heard a lot today about litigation, so what, again, what is the right balance?
Zachary Clopton: Where is litigation an important tool in adjudicating these conflicts and where should we be looking to things outside the courts? And I’ll just throw it open to the group, so anyone who wants to go first, jump in. I was worried this was going to happen.
Julia Spiegel: I mean I can scene-set and then happily hand it over to someone else who has more interesting reflections. I guess what I will say is there’s a real debate I’d say out in the trenches of folks trying to figure out how to uphold the constitution at the state level and federal level over the role of the courts and whether or not they will save the day. There are some suites of organizations that think litigation is the answer and will uphold our Constitution. And then I think there’s a group of others that feel that the courts will not ultimately save us, especially this Supreme Court, although part of the game is to stay out of this Supreme Court because they can’t catch everything. What we try to do is look at every single lever that governors have, that includes appointment powers, setting state budgets, agency regulation, bully pulpits, working with state and local officials. There’s a whole range.
So how can you deploy all the tools to try and hold the Constitution in this moment? But my own perspective, I’ve been advocating for a while for something that I think will probably never exist, but that I would love to see out in the world of people doing things, is a democracy index mutual fund. There’s no one thing in my view, in other words, like just the litigators or the Indivisibles or these other things that are going to uphold the Constitution in this moment. I think we need all of it. And so our best bet of that with the mutual fund is you diversify and think we need all of these things and there’s a way in which it’s that whole system that will save the day. So I just feel that I’m one lane in this broader highway of trying to uphold the Constitution.
Jenny Notz: Yeah, I agree that we shouldn’t put all… federalism isn’t… the strength of our federalist system is not a function of just formal judicial rules or of informal power. It’s a function of the full set of judicial rules and everything that happens in their shadow. But I do think that the states are really important actors, even when it seems partisan, because when there’s a red president and blue states are suing that president, they’re holding the federalism baton and then that baton honestly passes to red states. That doesn’t offend me very much because very much it guarantees that we always have a set of institutions that are willing to litigate important structural constitutional questions, which doesn’t happen within the federal government when we have periods of unified power.
We don’t have Congress defending congressional prerogatives in periods when Congress is of the same party as the president, but our 50-state system guarantees that there’s always going to be states with adverse interest to the federal government, and so I think about it as a little bit of a kind of relay race. And I think states should be standing on their rights when they have rights to stand on in pushing forward the project of establishing legal principles, in the shadow of which they are in a strong bargaining position with the federal government. And then I think states also need to exert the powers that they have in that bargaining posture.
So I’ve been advocating for some time that states have more power in some of the interactions with the federal government over the scope of federal programs than they think they do. And they should be fully exerting those powers. So in federal programs where the federal government is funding most of the program and the states are just kind of receiving those funds, obviously the states are in a constrained bargaining posture. Where the federal government wants data, though, the states are in an incredible bargaining posture, in my opinion, because the states have so many more frontline officials who are collecting data from individuals than the federal government does. And this is why the federal government has been so relentless about seeking out immigration data, but states supply lots of other data to the federal government that the federal government desperately wants.
So they shouldn’t just be turning over that, they should be doing the same thing that the federal government does with money, with their data and say, “You want our data, here are the conditions under which we’re willing to offer it to you.” Whether that data is related to healthcare…I think the states…it hypothesized the states have historically turned over far more data about healthcare provided in their states than they now wish they had because they’re alert to the consequences of arming the federal government with information about the most intimate choices that their constituents are making. So I think doing really careful diagnostics on those questions and leveraging the power that they have. So stand on your rights, but also take stock of the places where you do have power and leverage it.
Roderick M. Hills, Jr.: I had just…on this question of, can you trust SCOTUS on federalism? Keep in mind that all the pro-federalism doctrines that are now being used were the darlings of the conservatives on SCOTUS. So Alito wrote Murphy v. NCAA, which is a strengthening of the anti-commandeering principle. And Roberts and the four conservatives joined together to oppose Medicaid expansion and strengthen the anti-coercion principle. And so a lot of these doctrines have conservative or Republican justices’ fingerprints all over them, and I think that they’ll find it hard to back away from them. That’ll have some stickiness. And so yes, I think you can trust SCOTUS to some of the federalism stuff more than on a lot of constitutional stuff.
But put aside the constitutional stuff, the big fight right now has nothing to do with the Constitution. The big fight has to do with statutory construction. I know that’s boring and unsexy, but that’s really where all the money and power is. And the biggest of big fights I think will be a question which has been left open by SCOTUS. Does the anti-preemption canon apply to express preemption clauses? That is something that will glaze your eyes over immediately. It sounds unbelievably boring, but in statute after statute that’ll turn out to be the critical consideration. When we read this complicated federal statute, are we going to read it with a thumb on the scales for the states. And on that question, I think it’s completely up for grabs what SCOTUS will do. So yeah, I think SCOTUS can be trusted on these questions as much as on any other questions.
Zachary Clopton: So another batch of questions in our last few minutes here. I’ll try to take a step back on this federalism question and ask a little bit about how we got here. And here are some potential answers that I will rephrase from some of the questions. Are we in this moment because of a singular occupant of the White House? Are we here because of changes in relations that go back to the New Deal and the Great Society? Is it the decline of local journalism? Is it hyperpolarization? Is it strengthening of the executive as opposed to other parts of the federal government? Any of those explanations strike you as important or maybe misguided in thinking about what has got us to 2025?
Roderick M. Hills, Jr.: I vote for hyperpolarization. Federalism becomes much more salient when you have strong regional divisions and we have red and blue states. Now that’s actually totally misleading as David Hopkins points out in a wonderful book, Red Fighting Blue, which I think everybody should read, great political scientist. The bluest of blue states is only slightly more blue than the reddest of red states. If you compare Massachusetts and Kansas, their political profiles of conservatives and liberals are actually very similar. It’s about five percentage points different. And a liberal in Manhattan, Kansas, college town, or Lawrence, Kansas, is as liberal, is as blue as anybody in Brookline, Massachusetts. And that’s why the Kansas Supreme Court supported abortion rights, right? Because it was a narrow election and tipped one way.
But nevertheless a five percent difference is significant. And so we have slightly more red states and slightly more blue states. When you combine that with hyperpolarization, it’s like putting baking soda and vinegar together. You get a lot of federalism fizz. And I think that that’s why federalism is big right now because the stakes are high. I don’t think it’s been as big since the 1850s, when we had slave states and free states. The difference now is of course we don’t have all blue states and all red states and there’s not one salient issue. And so the fights intrastate are much more different, interesting, than the intrastate fights in 1850. There was no intrastate fight in Mississippi about slavery, right? There was some in Illinois. So I think that’s, it’s hyperpolarization plus the fact that our states are almost evenly balanced but not quite.
Jenny Notz: So I’ve been doing state SG work for close to 20 years at this point. And I think my observations confirm what you were saying. When I first started doing this, there were a lot of issues on which the state AG, SG offices could agree because I think sort of everybody recognized — and this is maybe consistent, I think, with something Julia said earlier — that there are institutional interests that kind of, and no matter what your political persuasion, that you probably should feel the same way about. So, for example, no matter your political persuasion, you probably as a state shouldn’t be super excited about the president deploying the National Guard over the governor’s objection because that might happen to you too.
And I think going back like 15 or 20 years, there was greater sort of, I think people still recognize that, but there was greater effectuation of that recognition in practice. And I think you see that that’s sort of become a lot harder now. I think at the AG level, at the SG level, and I think this is across society, rather than being sort of like the National Association of Attorneys General, we have the Republican Attorneys General Association and we have the Democratic Attorneys General Association in terms of where that sort of thinking and work gets done.
So I guess I would concur based on those observations that polarization is a very big issue. I also, I hope you’re right that the Supreme Court still cares about federalism because I think the National Guard case is federalism on steroids, and we may learn something from it about what they really think about federalism.
Zachary Clopton: Julia, yeah, go for it.
Julia Spiegel: Man, if someone can diagnose this moment accurately and what got us here, please, I think we’re all out here grasping to try and understand it because it does feel like we’ve fallen into a fairly dysfunctional system pretty fast and furiously.
I will offer just a few perspectives. One, I think the polarization is made worse and is exacerbated by a culture of retribution — that you don’t see many folks breaking rank from party and joining in other unlikely coalitions in part, not just because there aren’t diversity of views, because there are, in the Senate and the House, there are across governor’s offices, but if you step out of line with where — this goes back to some of your earlier points about where the national Rs are and the national Ds are — if you step out of line with that federal party, there will be hell to pay.
And that is both politically, operations will be mobilized. People are also under real physical threat. Their family members become a target, and people get pretty significant death threats very quickly. So there’s a price to pay if you don’t stay in that lane of whatever your party affiliation is. That I think makes it much harder to try and break out of that, even if you agree on principle. Taking a step back in terms of what might have gotten us here in part, I think from what I’ve seen from the state level and working with governors’ offices across the country, is a feeling that the status quo wasn’t working for a lot of people and yet there was a sort of defense of it anyway, and an expectation that people should fight for democracy because it’s the superior form of government, even if they all suck.
And there are these reasons why we should still stand for it. And yet so many people have been hurting, a lot of people have lost their jobs because of free trade. A lot of people have been left behind with the new economy. So just defending what it once was doesn’t meet their needs. And so I do think there’s been a thirst for authenticity, a thirst for being recognized and being met where you are, that people are struggling and something does need to change.
And I think there’s been a disaffection with the political parties and the ability of our leaders to understand that and do something about it. And so until we start to address that… so that’s why much of the work that we and so many others are doing in this moment is just to make sure government is working for people, that basic needs are met. That’s why this debate over getting basic food stamps to people right now, that is the stuff of daily life that really matters. And if we can’t answer that stuff, I don’t know what we do with the high-minded principles of federalism and the Constitution.
Zachary Clopton: Well, I’m afraid we’re at time, but I want to end by thanking again the Brennan Center and the Northwestern University Law Review for an amazing event. And thank these five panelists for a wonderful panel. I know I learned a lot, so thank you all. (Audience applauding.)
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