States and the Balance of Power
States — and their courts — quietly shape and check federal power.
States, including state courts, play a much bigger role than many people realize in determining whether and how federal policies get implemented — and in curbing abuses of power.
The early weeks of the Trump administration have included a jaw-dropping number of (often illegal) policy changes, many targeting immigrants, transgender people, and diversity, equity, and inclusion (DEI) programs, along with efforts to politicize, weaken, or eliminate government agencies. States don’t often get mentioned when we talk about checks and balances, but I’ve been struck by the varied ways that states are flexing their constitutional muscles in response.
To start with, states can be plaintiffs. Democratic state attorneys general have filed multiple federal lawsuits against Trump administration policies, scoring early wins in blocking the president’s order purporting to revoke birthright citizenship, temporarily halting the federal funding freeze, and temporarily barring Department of Government Efficiency officials from accessing sensitive Treasury Department information.
State constitutions and laws can also be an important counter pressure on institutions considering “complying in advance” with the administration by changing their policies when they’re not obliged to do so under federal law.
For example, after President Trump sought to halt funding for medical providers offering gender-affirming care to minors, several hospitals stopped offering these services to transgender patients even after a federal court blocked the funding freeze. Last week, New York’s attorney general warned that withholding services from transgender individuals “is discrimination under New York law,” and 15 state attorneys general (including New York’s) issued a statement that they “will continue to enforce state laws that provide access to gender-affirming care.”
States will also have to decide whether to cooperate with the Trump administration, for example, in providing assistance in implementing mass deportations. For the most part, the Constitution bars the federal government from forcing states to carry out federal policies. (For those of us who love legal jargon, the doctrine is called anti-commandeering.) As a result, whether state and local officials can cooperate, must cooperate, or are prohibited from cooperating with federal officials is largely a matter of state law.
State policies vary widely: The Texas governor recently authorized the Texas National Guard to make immigration arrests, while laws in Oregon and Illinois bar state and local officials from assisting with immigration enforcement at all.
Meanwhile, state courts will play a significant role in filling in the legal gaps. During the last Trump administration, the Massachusetts Supreme Judicial Court concluded that state court officers lacked the authority to arrest people based on a civil immigration detainer. Other state lower courts made similar rulings. Look for similar issues this time around, along with legal fights about the extent to which local governments can impose their own policies under home rule provisions that delegate some regulatory powers to localities.
That’s not to say that the federal government doesn’t also have its own “sticks” when it comes to federal-state relations. One of the big legal issues to watch for will be the extent to which the Trump administration can cut funding from states and localities that fail to cooperate with its policies. For example, Sean Duffy, the secretary of transportation, recently issued an order that could potentially slash transportation funds from sanctuary cities.
I think that spending cuts of that scale are likely to be struck down by courts, both because there isn’t clear statutory authorization and because of legal doctrines limiting the extent to which spending can be used to coerce states. But where these lines get drawn will matter greatly in how much power states effectively have in our system of checks and balances.
Alicia Bannon is the director of the Judiciary Program at the Brennan Center for Justice and editor in chief for State Court Report.
Suggested Citation: Alicia Bannon, States and the Balance of Power, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 12, 2025), https://statecourtreport.org/our-work/analysis-opinion/states-and-balance-power
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