I wanted to take a moment to set out some thoughts about the outer bounds of constitutional government in the United States, just where and at what point the American Republic might come apart or temporarily unhinged and how, potentially, to navigate such a situation.
For starters, where does the break point come? It seems clear to me that Trump plans to coerce the states into operating under his direct control by cutting off their flows of federal money from the federal government. We have already seen this with private institutions like Columbia University and other institutions in the form of NIH and other grants. Maine is already a focus because of the verbal confrontation between the state’s Gov. Janet Mills (D) and Trump back in late February.
We saw a parallel attempt — for the moment on hold — by other means with New York City Mayor Eric Adams. The Trump DOJ took hold of the ongoing prosecution of Adams and attempted (and is attempting) to hold it in abeyance to coerce Adams into enforcing Trump immigration and other policies within the city. Adams isn’t a victim here, or not the primary victim. As a factual matter he’s almost certainly guilty of flagrant and risible corruption. The victims are the residents of New York City, who are entitled to the governance and policy decisions of the person they elected. When the threat of longterm imprisonment is being held over him, Adams’ decision-making is no different from what it would be if an armed gunman had taken him hostage and was holed up with him in Gracie Mansion. No one would think that decisions Adams made under that threat would be binding on anyone or legitimate. But that’s what’s happening right now with the threat of prosecution.
What is beginning to happen is the same basic system of coercion, only with federal dollars. We’ve seen the beginnings of this with biomedical and other scientific grants. Those can hit universities and academic medical centers — and some cities in which those are major employers — hard. But let’s step back to see the larger flow of federal funds. The American fiscal economy consists of trillions of dollars being drawn out of the states and then being pumped right back into them as contracts, grants, various kinds of federal support for things like roads and infrastructure and finally programs of direct support like Social Security, Medicare, Medicaid, etc. Net dollars in and out favor red states over blue states for various reasons.
Under the theories of presidential power Trump is now acting on, basically all of those are stoppable by presidential fiat. President Trump controls this vast fiscal machinery. The inflows of money from the states to the federal government continue but the money to individual states might simply stop. My point here is that the potential flow cut offs go way beyond research grants to a particular university. At that point the governments of individual states, their top elected leaders and in fact the people themselves become different versions of Eric Adams.
Let me add an additional point. In some broad theoretical sense, if the President has decided that no money will flow from the federal government to what he considers adversary states, then those states should decide that no money should flow from them either. But of course it’s not that simple. The federal government draws its funding from individuals who happen to reside in this or that state. You don’t file your income taxes with your state and then your state sends it on to the feds.
Under normal circumstances, for countless reasons, that’s precisely how we want it to be. But in a situation like this, a state being extorted can’t simply say well … if you won’t send us any federal funds then we’ll stop sending in tax revenues, because the states don’t control that. The apparatus just doesn’t work that way. Depending on how far the President chose to go these decisions could genuinely cripple states. No money for road construction and the myriad other things that are funded in whole or in part by the federal government. And then there’s the big guns, what about cutting off Medicaid payments to hospitals in a given state? Maybe Social Security checks to people in a given state? These are crippling acts and they’re absurd in any normal world. But they’re not that strange under the kind of presidential power Trump claims to have.
I want to discuss something called the Guarantee Clause of the constitution, Article IV, Section 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Courts have been chary of tangling with this clause. They’ve chosen to interpret what counts as “Republican government” widely. It has also been seen mostly as a guarantee that the federal government would intervene if certain things happened in the states. If there was a mass outbreak of civil violence, the federal government might intervene to reestablish order. If Vermont decided to found a monarchy, the federal government would go in and say that’s not allowed. But this isn’t the only way in which a state and the people who live within a state can lose their republican government. And as we see from the example above lawless behavior by the federal president can be the cause of that loss. Quite simply, a lawless president can deprive the residents of a state of the republican government the Constitution guarantees them.
Now, it’s true enough that at the margins Presidents can favor one state over another in grants and things purely at the President’s discretion. Congress, meanwhile, has not infrequently used federal funds as a lever to drive state policy, though the Supreme Court has greatly restricted that ability over the last two decades. (We’ll see if that inclination holds up.) But that’s all categorically different. Those are laws. The elected representatives made those decisions acting through the federal sovereignty. And the leverage operates equally across all the states. For a variety of reasons, and with no little irony, the Inflation Reduction Act sent a disproportionate amount of funding to projects in red states and districts. The overarching point here is that the Adams situation is the same as what Trump appears to have in mind by using federal funds to coerce the states. What he is contemplating here is not only in many individual cases illegal and in others, according to the Court, unconstitutional even if Congress had passed laws. It’s also unconstitutional in this deeper sense: he’s depriving the citizens living in those states of the republican government they’re guaranteed. As Hamilton writes in Federalist 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.” Deprive elected officials of their free will and those who elected them are no longer living under republican government.
Now, let me be clear: I’m not expecting anyone to go into federal court and get such a ruling from a judge, at least not now. We have a judiciary which is mostly corrupted, especially at its higher echelons. But even for the most conscientious judge this is just entirely out of their conception of their jobs and as far as I know there’s little or no jurisprudence along these lines. But as I’ve argued on many fronts over the years, the courts do not own the Constitution. It’s the common inheritance of all American citizens. And I don’t mean that simply in some airy and metaphysical sense. It’s written in clear and plain English so it’s meaning is clear and comprehensible to any person it binds. That’s so we can know what it demands of us and what we’re entitled to. Before the current Court took on its fully imperial dimensions, people knew much more clearly that the President and the Congress and the states have an equal obligation as the Court to interpret the document and guide their actions accordingly. The role of the Court is to intervene and settle active disputes over its meaning.
I make these points now because it is important in a moment of high crisis like this to fully ventilate all of the Constitution’s provisions, the totality of its meaning. It is critical to understand not just its full meaning but to anticipate those moments when violations of its provisions may become so great that its obligations may no longer hold. Lots of people are thinking about the scenario I’ve sketched out above. A lawless President uses his unauthorized power to bring the states to their knees by fiscal coercion. Then maybe the courts say its fine. Some people have the idea that well that’s not fair and that sucks but there’s no recourse. That’s not so. The essence of monarchy — real monarchy, not the legacy product we see today in Europe — is the King’s arbitrary power. The President doesn’t have that. That is the essence of the distinction. Just how states or the citizens who live within their borders might resist such unconstitutional actions I don’t know. It’s a weighty and dangerous question. But the courts don’t own the Constitution and resisting the actions of a lawless President sometimes becomes necessary precisely to vindicate the constitutional order. The meaning of the Guarantee Clause is just one example of this. The totality of the Constitution is that we will have no Kings. It all starts with understanding just what the document means, requires and promises.
