How the Constitution Constrains Presidential Overreach Against the States 

This article is part of a series about the relationship between state and federal law.

The Trump administration moved swiftly to rein in sanctuary cities and other state and local practices that conflict with its policy priorities. But as opponents quickly pointed out, the administration’s moves ran headlong into the Supreme Court’s “anti-commandeering” principle. According to that principle, the federal government cannot coopt state and local governments and their officials for federal purposes.

Still, there are good reasons to be skeptical of the anti-commandeering principle, and hesitant about further expanding it. Critically, our Constitution offers another path to constraining presidential overreach: the separation of powers. Arguments rooted in the separation of powers more faithfully reflect our constitutional design and better promote democratic accountability.

The Anti-Commandeering Principle

Our Constitution contains a remarkably plain and simple provision that describes the relationship between the powers of the states and the federal government. It’s the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The 10th Amendment sounds like a very basic formula for the division of power in a federal system. It says only that the states “reserve” any powers that the federal government doesn’t have. (Importantly, it doesn’t say anything about the underlying scope of federal or state powers; it only divides those powers, whatever they are, between the state and federal governments.) The language is so simple that the Supreme Court once described the 10th Amendment as a “truism.”

But starting in the late 20th century, the Court has read much more into this language. In 1992, in New York v. United States, the Court held that the federal government could not compel states to regulate according to a federal plan. In that case, the Court struck a federal provision that offered states a choice between accepting ownership of low-level nuclear waste or regulating that waste according to federal standards. The Court held that either option would impermissibly “commandeer” states into the service of the federal government, and that the choice between the two therefore similarly “commandeered” the states in violation of the 10th Amendment and its “confirmation” of state sovereignty.

In crafting the anti-commandeering principle, the Supreme Court relied on three sources. First, it looked very briefly to history, purporting to examine the intent of the framers. Next, the Court applied its own precedents, which it read to prohibit the federal government from directly compelling states to enact or to enforce a federal regulatory scheme. Finally, the Court wrote that the anti-commandeering principle promotes political accountability, by transparently assigning responsibility to officials (state or federal) that actually adopted the regulatory program.

The Court later expanded the anti-commandeering principle in two ways. In 1997, in Printz v. United States, the Court ruled that the federal government could not commandeer state or local officers into service under a federal regulatory scheme. In 2018, in Murphy v. NCAA, the Court held that the federal government couldn’t prohibit states from enacting otherwise valid laws, which, in that case, were state laws allowing sports betting.

The Court also applied the anti-commandeering principle to a conditional federal spending program. In 2012, in NFIB v. Sebelius, the Court held that the Medicaid-expansion portion of the Affordable Care Act violated the anti-commandeering principle. Under the act, Congress offered extremely generous financial incentives to states to increase Medicaid eligibility. But the act also stipulated that a state could lose its entire federal Medicaid allotment if it declined to expand eligibility. The Court said that this amounted to undue “coercion,” and that the Medicaid-expansion portion of the act therefore violated the anti-commandeering principle. The Court reiterated its earlier point about political accountability (from New York): If the federal government could commandeer the states, voters would not know which officials to hold to account.

If applied faithfully, the anti-commandeering principle would significantly restrain certain efforts by President Donald Trump to rein in state and local governments. Take, for example, Trump’s attempts to clamp down on sanctuary jurisdictions. “Sanctuary” jurisdictions are state and local governments that restrict their officers in one way or another from assisting federal immigration officials in their immigration-enforcement efforts. Trump attacked these jurisdictions in his first term because, he claimed, they undermined the federal government’s activities and priorities around immigration enforcement.

He renewed his attacks in his second term. On his first day in office, Trump issued an executive order that purported, “to the maximum extent possible under law,” to withhold all federal funds from sanctuary jurisdictions. (At least two more executive orders followed that similarly sought to cut federal funding going to sanctuary jurisdictions.) Then, in early February, the Trump administration sued sanctuary jurisdictions and asked a federal court to order them to halt their sanctuary practices.

In support of the moves, the Trump administration argues that federal immigration law preempts state and local sanctuary policies. In particular, the administration points to 8 U.S.C. Section 1373, which prohibits any state or local government from preventing or restricting officers from communicating to federal officials “information regarding the citizenship or immigration status . . . of any individual.” (8 U.S.C. Section 1644 reads similarly.) The administration also argues that sanctuary policies unlawfully discriminate against and regulate the federal government.

The administration’s position seems to be that any state or local non-cooperation with federal immigration officials violates federal supremacy, and that state or local officials must cooperate with federal immigration officials in specified ways.

But if we apply the anti-commandeering principle faithfully, the administration’s moves are almost certainly unconstitutional. Under that principle, federal law cannot compel state or local governments to cooperate with federal immigration officials; that’s the very definition of commandeering. And Trump cannot condition federal spending on a jurisdiction’s cooperation with federal officials, at least insofar as the condition amounts to coercion, a species of commandeering. (This, of course, would depend on the relative amount of federal grants and contracts that the administration ultimately withholds.) This was the conclusion of several federal courts in Trump’s first term, and there’s no reason to think that courts won’t similarly halt his renewed efforts now. Indeed, one court already has.

Now take another example. Trump threatened to withhold federal disaster relief funds to California, unless the state adopted a voter ID law, allowed the federal government to assume control of its water management policy, and abolished its regulation of development in coastal areas. Again, these conditions on the receipt of federal disaster relief assistance almost certainly amount to coercion under NFIB. Indeed, the state’s need for disaster assistance may be even greater than its reliance on federal Medicaid funding.

From the 10th Amendment to the Separation of Powers

But what if there is no anti-commandeering principle? What if the whole thing is just made up?

After all, the Court’s bases for the principle are exceedingly weak, as concurring and dissenting justices recognized in New York and Printz. Constitutional text does not support it. Historical practices and original understanding around the time of the framing are ambiguous, or even refute the anti-commandeering principle. And the political-accountability justification is vastly oversimplified and highly contestable.

Justice John Paul Stevens summed up the reasons why our Constitution does not contain an anti-commandeering principle in his concurrence in New York:

Under the Articles of Confederation, the Federal Government had the power to issue commands to the States. Because that indirect exercise of federal power proved ineffective, the Framers of the Constitution empowered the Federal Government to exercise legislative authority directly over individuals within the States, even though that direct authority constituted a greater intrusion on state sovereignty. Nothing in that history suggests that the Federal Government may not also impose its will upon the several States as it did under the Articles. The Constitution enhanced, rather than diminished, the power of the Federal Government. . . .

The Tenth Amendment surely does not impose any limit on Congress’ exercise of the powers delegated to it by Article I. Nor does the structure of the constitutional order or the values of federalism mandate such a formal rule. To the contrary, the Federal Government directs state governments in many realms[, including] state-operated railroads, state school systems, state prisons, state elections, and a host of other state functions.

In that same case, Justice Byron White, also in concurrence, illustrated why the anti-commandeering principle undermined democratic decision-making: “The ultimate irony of the decision today is that in its formalistically rigid obeisance to ‘federalism,’ the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems.”

The doctrine seems to hinge only on the Court’s own precedents — a house of cards that can hardly support such a weighty constitutional doctrine.

But even if there’s no anti-commandeering principle, that doesn’t mean there are no restraints on federal authority in relation to the states. The separation of powers does the job, and it does it even better.

Consider again Trump’s efforts to condition federal spending to sanctuary jurisdictions and to California. The separation of powers prevents him from imposing most or all conditions, independent of any anti-commandeering principle. That’s because the president lacks unilateral authority to impose conditions on federal spending. Under our separation-of-powers system, that’s Congress’s job. Congress has the power under Article I, Section 8, to provide for federal spending, and to put conditions on the receipt of federal funds. Unless Congress specifies that the president may condition the receipt of federal funds, the president lacks unilateral authority to do so.

This means that Trump impermissibly encroached on Congress’s “power of the purse” and violated the separation of powers when he purported to place the conditions described above on the receipt of federal funds. Unless Trump can point to specific statutory authority to support his conditions (and in these cases mostly he can’t), then he lacks authority to impose them.

This result — that the separation of powers, not the anti-commandeering principle, restrains the president from imposing conditions on the receipt of federal funds — better reflects our constitutional order, including federal supremacy and the separation of powers. Moreover, it better promotes transparency and democratic accountability. That’s because any “commandeering” or conditions on federal spending must appear in federal law (thus promoting transparency), which is validly enacted by Congress and signed by the president (thus promoting broad accountability on the part of both elected branches of government). Finally, it restrains any president who may be bent on exerting outsized executive authority.

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By crafting the anti-commandeering principle, the Court, in its zeal for “states’ rights,” loaded the 10th Amendment with much more than it can bear. But even without an anti-commandeering principle, our Constitution still restricts how the federal government interacts with the states. It does this through the separation of powers. This approach more faithfully reflects our constitutional design, and it better promotes democratic accountability.

Steven D. Schwinn is a professor at the University of Illinois Chicago School of Law.

Suggested Citation: Steven D. Schwinn, How the Constitution Constrains Presidential Overreach Against the States, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/how-constitution-constrains-presidential-overreach-against-states