How State and Local Governments Can Fight Back Against Authoritarianism

0:06 This is the Just Security Podcast. I'm your host, Tess Bridgman, joined by my co-host and co-editor-in-chief, Ryan Goodman. The second Trump administration has shown little regard for the rights and authorities of state and local governments. From the deployment of the National Guard to Los Angeles and other cities, to the administration's threats to cut public assistance to city governments over policy disputes, the Trump administration has taken many actions that fly in the face of traditional federalism.

0:36 What can state and local governments do to combat federal overreach? What legal and policy tools can states and localities use to challenge repressive and illegal federal actions? Joining us today are Erwin Chemarinsky and Aziz Hook. They are the editors of a series of essays called Fight Back: How States Can Counter Authoritarianism, which seeks to answer all of these questions for state and local policymakers, whether they be liberal or conservative.

1:04 Erwin Chemarinski is Dean of the University of California Berkeley School of Law. Aziz Hook is Professor of Law at the University of Chicago, and both are distinguished professors of constitutional law. So thanks so much to both of you for joining us. And we wanted to just jump right in with some of the main themes you discussed in your framing essay that really sets up the whole series, the substance that each of the authors delves into.

1:30 And you describe very helpfully several waves of federalism in US history that have shifted the balance between the federal government and the states in some fairly substantial ways. But you describe a repudiation of all of those models of federalism in what we're seeing in the second Trump administration's approach today.

1:50 And you describe this as a politically charged phase shift in the quality of American intergovernment relations. So I'm hoping you could start maybe by just walking us through how has that federalism shift traditionally operated in the United States and how is the legal terrain that we find ourselves in with this new administration different in kind today, if you believe in fact it is.

2:19 So maybe turning to you, Aziz, first, if you can help us understand those waves of federalism that we've seen in the past and whether today really is a significant break from that.

2:31 Thanks, Tess, and thank you very much to both you and Ryan for having us on the uh Just Security podcast. The story of American federalism is a complex one where which can be told in a couple of different ways. One way of telling it is in terms of the changing forms of government and the changing uh relations politically between the state and federal governments over time.

3:01 And the other way is by uh charting the different understandings that uh people within government and the scholars, particularly the legal scholars and political scientists studying them, uh have taken. And so let me offer you the second, not the first. Um, and in the second, I think that we can identify at least three stages of American federalism.

3:24 The first uh has come to be known as the era of separate spheres. This was the idea that uh in a world in which the federal government had less regulatory power, uh, the states and the federal government uh coexisted side by side, occupying, as the phrase went, separate spheres. Uh this was pronounced dead by a leading constitutional scholar at the end of the 1940s.

3:50 Um, and the leading model uh from that period up, I think, until the first decade of the century, was called process federalism. And it looked in various ways to the processes of democratic representation and to, in particular, our two main political parties as transmitter belts for uh states' interests at the level of the national government.

4:19 Um, in the last decade, decade and a half, an influential school uh has uh of thought has arisen at Yale, uh headed by their former dean, Heather Gherkin, uh, that emphasizes an integration of states into uh national administrative structures. So all three of these uh models are models of how you can have what the federalism scholar Daniel uh Lazar uh called uh self-rule with shared rule.

4:53 They're ways of accommodating the fact of multiple sovereigns in the same physical space. And I think that the difference in the second Trump administration is a repudiation of the shared rule part of that definition, uh, a repudiation of uh maybe even any pretense that there are multiple sovereignties that need to be worked out.

5:25 Um and I think that there's enough evidence that ranges from the instances of armed force and the National Guard deployments that Just Security has written about a great deal, uh, to the way in which federal funds have been withheld, sometimes on the basis of conditions uh that are uh ultra virus, uh, to the way that uh state uh uh politicians um and uh election workers have been targeted for criminal investigations or even criminal prosecution, for us to talk about uh a real shift in the quality of American federalism and a repudiation of what I think is the common thread in those earlier models.

6:18 I think I would only add to that through much of American history, states' rights has had a very negative connotation. Federalism and the way in which conservatives have opposed progressive change on seeming procedural grounds. So in the early 19th century, those who opposed abolition of slavery did so in the name of states' rights.

6:41 From the 1890s to 1936, the Supreme Court struck down many federal laws protecting workers and consumers in the name of states' rights. The first federal law to prohibit child labor was struck down on federalism grounds. In the nineteen fifties and the nineteen sixties, those who opposed the end of apartheid and state-mandated segregation did so not by defending segregation, but on the grounds of states' rights.

7:11 And so I think for progressives, states' rights come to such a negative connotation. But I've always thought that the genius of having multiple levels of government is if one fails, another can step in. The idea that states can be a protection against tyranny goes back to the founding of the Constitution and the Federalist Papers.

7:33 And so I very much agree with Aziz's sense that the Trump administration believes it can do anything. It was his chief of staff who said Trump believes it can do literally anything, and that includes ignoring the authority of state and local governments. And I think that the wonderful aspect of this book that Aziz has conceived, that I'm so honored to be a co-author with, is that states can play a role in fighting back using their authority in the Constitution and be the bulwark against tyranny that was envisioned early in American history.

8:07 And um I want to pick up on that dimension. There's so many different ways in which the book and the collection of essays that we're publishing demonstrate that principle of how states can push back against tyrannical uh invocations of uh federal authority coming from the White House and the like. And I wanted to just focus in on as a little bit of an availability heuristic, in the sense that just yesterday, uh Monday of this week, we published a piece by David Knoll on the ability of states and attorney generals to step into the breach when the federal government is, for example, not enforcing antitrust, but instead is playing favorites in order to consolidate its political power with a like

8:45 paramount deal. And to my mind, if you just look at the Just Security Litigation Tracker, which tracks all of the litigation that's gone on since January 20th, 2025. And then you can even, you know, filter through just to the ones that the attorney generals have brought. I think that it just shows the proof of the case that they've brought, not just that they've brought these cases, but they're successful, just very high win rates, which is another way of saying they are indeed enforcing against uh the violations of the rule of law, violations of federal statute, constitutional rules, and the like.

9:18 But then the availability heuristic is the paramount deal. And just how you think about that, how do you think people should think about the prospect of this particular vehicle of states' attorney generals being able to do it if you have potentially what I would think of maybe the Paramount Deal as a collective action problem?

9:37 According to the reporting, uh, New York, Connecticut, Minnesota, those attorney generals did not want to strike a deal. They thought that it was a bad deal, I suppose, and they wanted to continue to litigate because this uh the case had a lot of legs, had a lot of strength, but they didn't. They settle and they settle for something that's been a widely criticized deal in terms of many different things, but media consolidation and controlling of the free press.

10:00 Is that uh just a blemish? Do you think that that does identify a problem uh with respect to that particular avenue, or how do you think about that particular terrain when it comes to the use of state authority to push back in the ways in which this has been identified as a productive avenue for democratic protection?

10:20 I draw a distinction between the states challenging the Trump administration's actions, revising the Constitution and federal laws, and the states stepping in and enforcing the law where the Trump administration isn't doing so. Both are enormously important. Your question really focuses on the latter.

10:41 And so there are instances where the federal government is not enforcing environmental law at all. The Trump administration astoundingly engaging in climate change denial means that if there's going to be enforcement with regard to environmental law, states are gonna have to step in and do it. The Justice Department's Civil Rights Division is not enforcing civil rights in the way that we've traditionally thought of civil rights.

11:04 So if there's going to be enforcement, it's gonna have to come from state attorney generals. Can you give the example of states trying to enforce antitrust laws? There are benefits for this. The federal government failing means the states have the chance to step in, but there's also limits when you think about states suing for environmental protection.

11:25 Well, that's very difficult to do unless all of the states were engaged in it, and only a handful are likely to do so. With regard to civil rights, there's no doubt that some state attorney generals are going to step into the breach, but other state attorney generals aren't. And for some kinds of actions, like your example of the antitrust suit, there really can be a collective action problem in terms of the states getting together.

11:48 So, yes, states can play an enormous role in this regard, but we also have to recognize there's limits to what they can do too, or are likely to do.

11:58 Yeah, I I I would I would build upon that and maybe offer a complication to Erwin's uh typology. I I think that the limits on the capacity of states as litigators emerges from a number of different sources. Uh, one source is simply institutional capacity. So, for example, uh small states like Vermont or Maine have far uh smaller pools of lawyers to draw on.

12:29 And when faced with uh uh a targeted threat by the administration, Maine, for example, um faced the threat or the actuality of its uh federal funding for school lunches being withdrawn because of its uh law on uh the uh trans girls playing in sports teams. Um Maine is simply gonna have uh uh a shallower well to draw on than a Washington state or a New York state or a California.

13:01 Um and uh a second limitation is that as the Paramount uh uh negotiation and settlement suggests, there are gonna be cases where states have inconsistent or uneven interests. And uh Rob Bonta being the uh lead actor in the Paramount litigation means that you have a deal at the end of the day that um protects the legitimate interests that Bonta has as a representative of the state of California to a higher degree than it does the legitimate interests that all of us have, as Ryan, you rightly say, in an open and competitive media environment.

13:44 I would add one category to the taxonomy that Irwin put on the table, which is there are some instances in which states step in to play a role that the federal government is not playing, where that role is enforcing the law against members or officials of the federal government. So one of the important chapters in our book is on the use of state taught law actions in the fashion that Akilah Ma, uh the uh uh well-respected Yale scholar, has suggested as mechanisms for the enforcement of federal law.

14:20 There's a different chapter on the scope of state's authority to bring criminal prosecutions given the uh constraints uh that cases like X Inray Nagel uh place upon that authority. And you might think of the Paramount deal actually as falling into that category. Um if you if you think about the FTC as engaged in an improper uh uh patrimonial form of self-dealing, um that's an instance in which, yes, the the state is stepping in to enforce antitrust law in general, but it's also stepping in to address, albeit indirectly, a kind of, I, in my view, unethical and improper conduct on the part of uh federal officials.

15:12 I was gonna ask you about exactly that um the wonderful essay by Fred Smith on collateral accountability. So maybe I'll draw you out a little bit more on that now since you brought it up. And and he, you know, he talks about this form of collateral accountability is the oldest check on federal lawlessness.

15:29 It is not new. Uh, and the fundamental idea, right, that he he is um putting at the center of this is that when one sovereign fails to restrain itself, the coordinate sovereign steps in, much as Irwin was saying um just a minute ago. And and the founders built two governments for exactly this moment, he says.

15:48 Um, but it it has not been easy for states to do that. Um and collateral accountability, he talks about an accountability desert for quite some time and this you know, much more recent attempt to resurrect um this form of collateral accountability in these converse 1983 statutes discussed by Akila Mar.

16:07 Can you tell us a little bit more about what those are, how they work, um, and what it looks like concretely today? Because it is, it is not, in fact, easy for states to A, get these statutes necessarily on the books, not all states have them, and then B to use them appropriately. I don't know if Erwin, you want to start with that um first.

16:48 And all of the justices in that case recognized the availability of state tort suits. In Bivens, the Supreme Court said you could have a lawsuit directly against federal officers under the Constitution. But in the last 45 years, the Supreme Court has consecutively and consistently cut back on the availability of Bivens suits.

17:10 So now the question is without the ability to sue federal officers under federal law, including the Constitution, where can you sue them? And the problem is state tort suits often don't provide a remedy for the kinds of violations of rights that federal officers might engage in. And so, thus, a number of states have adopted laws that would allow federal officers to be sued civilly under state law for violating the Constitution.

17:41 I believe that these laws are essential. I believe that they're constitutional, but we're in an early phase with regard to these statutes and adopted in just a handful of states.

17:52 And I'd just add to that that in adopting these statutes, states have to navigate um uh a number of different thorny constitutional and uh legal constraints. And they have, I think, not always uh in the last year done so successfully. So uh Illinois, which is my my home state, um uh enacted uh a first version of uh test what you called correctly a converse 1983 action, um, but but did so in a statutory form that singled out immigration as the area in which this course of action would be available.

18:37 There is, however, a separate uh rule that prohibits states from discriminating against the federal government. And um, as uh I happen to know, the state of Illinois was told uh clearly before that statute was enacted, um limiting the terms of the statute to, say, immigration or even to federal officials would violate the anti-discrimination uh uh uh uh uh doctrine in respect to uh state's treatment of the federal government.

19:12 Um and my understanding is that the state is going to revisit that because that the Conference 1983 action was um altered. And uh either the I'm not sure if the legislature has, but I I believe it it is in process of uh uh adopting a new version of that measure. But that's a good illustration of the importance of careful legal design in thinking about these uh instruments.

19:38 I think there's other questions, but that's a uh perhaps a useful cautionary tale for other states.

19:45 Yeah, um and and I and I the Fred Smith essay is just terrific on that. Also, just in sense of like, here's the guidance, or if you want to avoid these um pitfalls and put into place legislation that can survive uh scrutiny and be constitutional in the way that Aaron said as well. Um I guess one of the questions that I want to raise is about um something that I think many folks that listen to this conversation might think of, which is what happens when you then have a rule of law administration in the White House, but these same tools can be utilized by states on the opposite side of the political divide, in a way.

20:22 So uh obviously we saw some of these kinds of state um lawsuits come up in the Biden administration, nothing to the degree as what's happened in the Trump administration. I'd also suggest in some of the Biden administration ones, you know, one of the ones that immediately comes to mind is the um uh Missouri v.

20:38 Biden turned into Missouri v. Murphy to the Supreme Court. So there was the idea that the um government, the federal government is placing pressure on social media companies with respect to disinformation on COVID and other things like that. And they it's a it's a terrible case. It actually loses for other reasons, but it shows potentially the way in which the tool could otherwise be used.

20:58 Is you what's your view on that in the sense of um is this just a good check for democracy writ large and federalism in a certain sense, a healthy check for having these kinds of authorities have the ability to litigate, or could it also hamstring a rule of law administration that's trying to do the right thing?

21:18 And I also want to um qualify one aspect of my question, which is and see if you uh agree with me on the following. I don't think it's like blue states, red states. I think that's way oversimplified. I think many of the call the lawsuits that have been brought since January 20th, 2025, red states are just free riding on blue states.

21:39 They let the blue states go forward, and the red states uh governors and attorney generals are uh wishing that they win because it is about the suspension of all sorts of grants uh for their own communities that are being suspended by the federal government and then get through the injunctions and the rest reinstated for everybody.

21:57 Um, so it's the appearance of blue states when it's actually. Something just not as partisan as that. So I do want to make that qualification in the question that I'm asking so that it's not artificially created at this like blue states versus red states question.

22:10 I actually want to push back on that a little bit because the lawsuits have been brought by blue states. I wish that the red states had joined because there are beneficiaries as well. When funds are cut off by say the National Institute of Health to state universities, the University of Alabama is having its money cut off as well.

22:30 And yet it's the blue states bringing it. The other reason I push back is we also know of instances where the Trump administration cut off funds just to blue states and not to red states. The Department of Energy did this, targeting only states that did not vote for Donald Trump in 2024. So there's a blue state-red state dimension to it.

22:53 The way in which I'd agree with you is even now we find red states bringing these kinds of lawsuits to advance their ideological interests. Louisiana is suing a case of pending in the Fifth Circuit now, challenging the FDA's approval of Mipha Pristum. And during the Biden administration, you're not only the cases you mentioned, but the student loan case was Biden versus Nebraska, where the court found standing on behalf of Missouri.

23:20 So I think these tools are there. And red states probably began using them sooner than blue states, but ultimately tools can be used by either a political party or any ideology. Ultimately, it's the nature nature of the government that states can bring suits to try to protect their residents against the federal government, some of which we're going to agree with, and some of which we're going to really disagree with.

24:42 To the contrary, I think it is a far more sensible political and legal logic to elicit a remedy for your constituents and to leave in place the political pressure on the White House or on the federal government that comes from, as everyone said, the University of Alabama losing funds that are life-saving.

25:10 The second thing I'd say is I hear, Ryan, is what's good for the goose good for the gander argument? I think that that's a really important one. It's an important one that I think is pressed within the collected volume in an essay by the political scientist Emily Zakett, who thinks about the question of uh federalism and the tides of authority moving between the states and the federal government over a much longer dure, over the 18th and the 19th century, as well as the 20th, in a way that I think is very, very helpful and I think presses on precisely this question of will this will this um tactic uh backfire.

25:54 Um I I think that my own view, which is a little different from Emily's, is um the tension that you identify is blunted um by the following fact. It is, I think, generally the case that um Republican administrations lean are not interested in a smaller government as such. They tend to trim the uh supportive, welfare-enabling part of the government and tend to expand the coercive, violent part of the government.

26:28 You this we see this, for example, in the withdrawal of social supports on the one hand, and the expansion and extension of ICE and other forms of uh of coercive state authority. And I think you see vice versa, the the opposite pattern in um democratic national administrations. And I don't think you need to think of federalism or the tactics that states adopt as being indifferent to the this distinction between the uh leaning into the coercive and leaning into the helping functions of the national state.

27:07 And there are at least some rules or innovations that go directly to limiting the federal coercive state that have that don't have much effect upon the welfare-enhancing state. Um, and I think Converse 1983s are a good example. I think criminal prosecutions by state uh AGs are another example. Um, and and and it seems to me without eliminating that tension, to uh uh for it to be possible to modulate it or soften it, at least at the edges, by taking account of the different ways in which you see national power growing in by and large Republican administrations, as opposed to the ways they grow by and large in democratic administrations.

27:58 Can I just draw you up one minute further on that? Looking at the backdrop of how our Supreme Court is changing and how this isn't a static, you know, um, background environment. And when it comes to rights, civil rights, uh it it it is, I think, sometimes troubling that you end up with this patchwork, right?

28:21 And um, I'll take one example of marriage equality because I remember this personally. I was married in a same-sex marriage between Windsor and Obergafell. And my wife and I were traveling to a wedding somewhere in the middle of the country, and we had to drive through three states to get where we were going.

28:35 And we were married in one state and not in the next, and not in the next, and married in the next. And that was this moment where you really felt the power of states to change the way your family is structured, you know, what is possible for your family in a way that shifted after Oberga fell, but that could shift again, right?

28:55 The Supreme Court is changing. Um, we don't necessarily see these things as um a one-way ratchet, I think, the way folks used to sometimes um when it comes to civil rights. So I'm I'm wondering if you think the changes that we're seeing at the Supreme Court level complicate that analysis of good for the goose, good for the gander.

29:20 And the reason is that the central question always in constitutional law, and especially with regard to federalism, is when to defer to the states and when to say there's no deference to the states. And so what we've seen in recent years is the conservatives are quite willing to say let's defer to the states when it's prohibiting gender-affirming cure for transgender youth.

29:42 Let's defer to the states when it's about things that advance that ideological agenda. But let's not defer to the states if they're engaged in gun control or the states are doing things like affirmative action that the Supreme Court is disagreeing with. There's no unifying principle there about when the court's deferring or not deferring.

30:03 The underlying issue with regard to marriage equality is should this be left to each state, or should we say that the Constitution has created a uniform rule under equal protection and due process? The Supreme Court chose the latter. This court would not come to that conclusion today. This court would say we're gonna leave it to each state, just like they done with regard to abortion.

30:26 So I don't mean to sound cynical, but I think they defer to the states when that advances their ideological agenda. They don't defer to the states and want a uniform rule when that advances their ideological agenda.

30:39 Yeah, and a version of that, or or a way of glossing out a little further, is in terms of uh opportunistic ways in which the justices appeal to the ideal of democracy. This is something that Ryan's colleague um uh Melissa Murray has written um a couple of really uh terrific uh law review articles about.

30:59 Um, the way in which there are opportunistic appeals to democracy, in, for example, um a case like Dobbs, um, in cases about uh gender medicine, uh, and and where you have um uh a less salubrious approach taken to democracy or a less or a less welcoming approach taken to democracy in cases, say, about the the Second Amendment, like Wolford and the like.

31:25 So that I think that's generally true. But but Tess, I would I would distinguish between um two kinds of uh judicial activity that we might see from the Supreme Court. So the first, I think, is the is the category of what colloquially we might call inalienable rights, so which which operate in some sense as uh flaws uh to which all states are are supposed to rise.

31:54 Um and and second, um the category of cases which concern what uh uh again, um Ryan's colleague uh Brian uh Barry Friedman once called the etiquette of federalism, uh, or the etiquette of how governments relate to each other. And I think your point is very much about those flaws. But I think on the cases concerning the etiquette of federalism, the doctrines like the rules for conditional spending, the rules for uh the anti-commandeering doctrine, um, uh, or the rules for sovereign immunity, I don't think that the Roberts Court has um, to be honest, I don't think it's evinced all that much interest.

32:39 There's this one recent case that that Irwin has written about on Scotus blog um uh about spending clause enactments and how the court thinks about spending clause enactments, which uh it is a pro-states uh ruling. It may have worrying uh implications. Um, but I don't think you can find a consistent pattern of withdrawal, or even I think a consistent pattern that suggests that the that this court knows what to do with federalism.

33:11 Right? I think it knows exactly what it wants to do with the call them loosely culture war issues that pertain to it to inalienable rights. And and I I share Irwin's skepticism cynicism on that on that score. But uh but on when it comes to federalism, I actually think that this court is a little at sea and doesn't hasn't quite figured it out its own priors.

33:35 Can I just add I think it's because the cases haven't yet come to it about it? So when it's the states are trying to use the anti-commandeering doctrine to resist what the Trump administration is doing, those haven't yet gotten to the Supreme Court. So it may very well be that the Supreme Court will apply the anti-commandeering doctrine against the Trump administration, just as it used the earlier cases, but we don't know yet.

34:00 And so you know, the strange thing about the federalism is you had the period of time from the early 1990s for about a decade and a half, where the Supreme Court was very concerned about states' rights. But the cases even about the Commerce Clause and the Tenth Amendment have been so much more rare since.

34:20 So I agree with your conclusion, but don't know what the court's gonna do when it comes to them in applying these doctrines, say against the Trump administration.

34:29 Yeah, I I I agree. I I I I I'm not sure that that the fact that we don't know doesn't also tell us that the court doesn't know, in as much as I think the court has had opportunities, you know, for example, by taking cases that would otherwise be on the emergency docket and transforming them into Merit's cases, to give more, to flesh out a uh a richer version of whether it's going to double down on rank West era federalism or whether it's going to either diverge from it temporarily, which I I can imagine it doing.

35:04 You know, there could be a Trump exception, right? Or diverge from it more durably. And I I I read the fact that we are not seeing those cases as some evidence that the court is at least hesitant. It's not quite figured out whether what it wants to do with them. And I recognize I'm personifying a group of people who have very different uh perspectives.

35:29 Um so just to close out our conversation, I just really want to already begin to say how much I appreciate the richness of the conversation, is to personify another collection, um, which is the Congress. And um, you know, one of the many things that I think so are so valuable about the collection of essays that you've created together with the other authors is um just how pragmatic it is, as well as very principled, in dealing with the current situation of enormous democratic backsliding and a void at the federal level when it comes to accountability or checks and balances.

36:04 So that it's it's dealing with the fact that we've got an anti-democratic rule of law breaking administration and we've got a Congress that's not checking it in the way in which it would, you think, institutionally, or just give the Alabama example we just discussed. You would think the Alabama delegation to the Congress has an interest as well in funding support for their educational system, but there's no pushback coming from Congress.

36:25 But in the future, let's project post-the midterms in which at least one of the houses of Congress is operating in a checks and balances type way so that the states have a kind of a partner there. And even assuming it's bipartisan, just it doesn't have to be democratic led. There are real bipartisan interests in these kinds of concerns.

36:49 How then do the dynamics that are identified in your uh collection of how states and localities can fill in the void potentially work synergistically with at least one chamber of um Congress also trying to avoid or fight back against democratic backsliding? Is it in the realm of Congress uh providing some kinds of oversight?

37:12 Is it hearings? Is it preventing uh funding cutoffs, conditioning funding, um, in ways in which it's maybe they also have to avoid the presidential veto, so that's maybe in must-pass legislation. How do you think about that relationship that I think would also be helpful for people to think about as well?

37:27 Because it is a quite likely scenario that we have in the future.

37:31 Listening to the beginning of your question, I can think about what you got to at the end. What can one house of Congress, or even both houses of Congress, do to effectively check the president? Because one house of Congress can't pass legislation. Even two houses of Congress, if you can overcome the filibuster, can't pass legislation because there's not going to be a veto-approof majority in order to do this.

37:54 And so the question is, how functional can Congress be? There's ways in which it can be very functional. If the Democrats take the Senate, no Supreme Court justice and likely no federal court of appeals judges are gonna get confirmed in the next two years. That's a way in which one house of Congress can exercise control.

38:11 The way in which one house or both houses of Congress can make a difference is with regard to oversight in hearings. And I expect that either House of Congress controlled by Democrats, who is very aggressive in that regard. Certainly, if Congress is controlled by Democrats, they can pass bills that can have a public relations aspect, even if vetoed by the president.

38:32 But meaningful checks are difficult by Congress, even if you can overcome the dysfunctions of Congress for things like the filibuster.

38:41 I I I agree with that. I'm I I would be um skeptical that um many of the that the rate at which the unilateral tools we've seen employed by the White House, you know, ranging from the executive orders to the deployments to the uh all of the funding cutoffs, which have been uh in the teeth of contrary federal law, federal statutes, by and large enacted on a bipartisan basis, often with large numbers of Republican members in support, and often in ways that benefit substantially Republican constituencies, right?

39:21 Um I would be skeptical that the rate of any of those unilateral actions will change. I would add to the list of things that that Erwin put on the table the opportunities that are presented by the appropriations process, where I do think you have at least uh a symbolic platform for uh highlighting and underscoring the obligation that comes with an appropriation to spend, right?

39:52 I think you can imagine kind of contempt-related proceedings that focus upon impoundment and the like, and that happening in a way that is synergistic with um the states. Um, you know, one of I think the deep questions of American politics goes to something that you said, Ryan, which is I think for many of us, there is this sense of a disconnect between, on the one hand, particularly the White House, not even the Republican parties, but particularly the White House's agenda, maybe even the single person of the president's agenda, and the interests of set aside the nation, but even his constituents.

40:33 And I think a sort of a core question that that I don't have an answer to, but I grapple with is you know, at what point or what helps people see that there is a divide between the policies being pursued and the interests of people on the ground? I think you're seeing that very, very dramatically play out with respect to data centers and AI now.

40:58 I think you're seeing it in the news and it's and it's almost being underscored by the White House. But I do think that states are in a distinctive position to help Congress or members of Congress underscore that gap. And maybe data centers and AI generally and its labor market effects is the place in which that will happen.

41:21 It's the place that crystallizes a number of other general anxieties. And I can absolutely imagine federal measures and coordinated state measures following in the in the footsteps of your governor, um Governor Oakle, who has a bat who installed uh at least a moratorium on data centers in the state of New York.

41:41 I can imagine um interactions that uh between the states and either one or both House of Congress that draw that question to light and draw that gap uh to light. And I think that you know that's a there would be political reasons for do for doing that. But I also think that there's good structural constitutional reasons for doing that because it it is a way of focusing upon not so much an accountability deficit, but a way that the chain of representation upon which national democracy depends seems to be fraying or have frayed and and needs some sort of reinforcement.

42:22 Can I ask? I I know we said that was the last question, but I I want to end with one more, if I may, and it can be brief. Um your book, um, essay series, and this whole body of works called Fight Back, How States Can Counter Authoritarianism. And I think um implicit in that is a can-do message, right?

42:43 That states can act, that they are acting. And I think for our listeners, you know, we're we're constantly bombarded with what can't be done, with you know, the lack of a supermajority to overcome a veto, although even a minority can stop a supplemental funding bill, for example. Um, but you know, there are so many things that that we we see every day can't be done.

43:02 This series is is predominantly about what can be done. And I think that's so powerful in this moment. Um so I'm wondering if each of you could maybe just end with one example from the essay series or or otherwise, um, that gives you hope in terms of what can be done to counter authoritarianism.

43:27 I would um identify as a very practical measure the steps that states have have engaged in, um, not through formal compacts, which is something that um uh one of our contributors, John Michaels, writes in a really terrific chapter about, but but in collaboration with each other with respect to the um the deficits that have been created in the structure of medical care.

43:54 I think the one that that is very close to many people is the abrogation of the Federal vaccination schedules and the way that states have stepped in to provide vaccination-related information. But states I know have been also discussing ways of stepping in with respect to the production and distribution of life-saving drugs, including uh drugs related to reproductive care, um, you know, in the case that they are that there's a styming effect from the federal government.

44:28 So I think that that's a very, very concrete way in which states can step in. And it's not it's not directly combating authoritarianism, but I do think it's addressing one of the kind of underlying conditions, which is the condition of despair that authoritarianism feeds upon. And I sort of close off with a kind of broader thought that echoes something that you said, Tess, which is um, you know, I'm in the process of uh writing another book about the ethics of these kinds of moments of fighting um democratic backsliding.

45:06 And one of the things that's really struck me in not so much in researching the book, but in reading what people say about this issue is precisely what you said, which is that people are often looking for a solution. And they're not asking, what can I do with whatever the tools are at my disposal, what can I do to make the world better in, or to make our democracy better in in that, in in whatever small way I can.

45:33 And not, and they they they they lose sight of the contributions that they can make because they're looking for a global solution. And I think one of the points that I would draw from your question is how important it is, not just for states, not just for localities, but for ordinary people, not to ask the global question, actually, but just to say, well, what's the best that I can do in my in my place and time?

45:56 And that is a perfectly reasonable and really important question to ask that I think is almost um sort of put off the table by some of our political rhetoric.

46:07 Absolutely. Yeah, that's such a perfect answer. You're right, of course, Tess, that a goal of the book is to try to be very practical and to try to identify specific ways that states can fight back. In addition to those that Aziz mentioned, I'll just mention three quickly, and we've largely talked about these.

46:24 One is the ability of states to challenge actions of the Trump administration that are unconstitutionally legal. The suit that was brought trying to stop the United States Postal Service from controlling absentee doubts was brought by state governments and was successful. And it is an enormously important case with regard to the coming November election.

46:44 Second, the ability of states to authorize suits against federal officers when they violate the Constitution, and also state criminal prosecutions against federal officers. We didn't touch on that. It's unclear when and whether they're going to be able to do it, but it is a way of the states being able to protect rights.

47:03 And the third, which we didn't talk about much, but is discussed in the book, is state constitutional law providing protection for rights when the federal constitution fails. Abortion being the best example, while there are a number of states that have prohibited abortion since Dobbs, a number of other states have strengthened their state constitutional protection.

47:24 And I predict that if ever Obergafell gets overruled, if the federal law protecting marriage equality gets overruled, we'll again have states, at least in some parts of the country, strengthening the state constitutional protections.

47:37 Well, thank you. Those were concrete uplifting and uh and a wonderful way to wrap up this conversation.

47:44 This episode was hosted by me, Ryan Goodman, and my co-host Tess Bridgman. It's produced by Daniel Hajnaki and edited by Pooja Shah. Special thanks to our guests, Erwin Szemarinsky and Aziz Huck. You can read all of the essays in the ongoing Fightback series on the Just Security website. They'll also be linked in this episode's show notes.

48:04 If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.