Trump Tramples American Federalism

Abstract

President Donald Trump threatens American federalism because he sees himself as a popular and powerful populist leader presiding over the unitary executive of a unitary nation. He regards the states as agents of the federal government; therefore, he intervenes, including militarily, in all facets of state and local affairs. He is making unprecedented uses of federal-aid funds to coerce state and local governments into complying with his policies. Federal district and appellate courts have been the principal check on Trump, and he has lost most of the lawsuits filed against his actions. However, 40 months remain in his Administration.

The second Administration of Republican President Donald J. Trump (2025-29) could be perilous for American federalism because Trump conceptualizes himself as a popular and powerful populist leader presiding over the unitary executive of a unitary nation. Like most presidents, Trump endorses federalism when it advances his policies and discards federalism when it impedes his policies, but Trump’s unitary proclivities exceed most presidents’ centralizing propensities.

Trump recognizes that the constitutional structure of the U.S. federal system is a barrier to his plans and that Lilliputian states can tie him down in the courts. Consequently, he promotes a unitary conception of the United States in which state and local governments should be agents of the federal government.

Unitary executive theory holds that the president has sole authority over the federal executive branch, including authority to fire all federal government appointees and employees who perform executive functions, including those of congressionally created, independent, regulatory agencies such as the Federal Reserve (i.e., U.S. central bank). This is a contested theory, but one partially upheld by the U.S. Supreme Court in 2020 (Seila Law LLC v. Consumer Financial Protection Bureau).

Further, despite his constitutional obligation to “take care that the Laws be faithfully executed” (Article II, Section 3), Trump has asserted authority to nullify laws he deems obstructive of national interests, such as a bipartisan 2022 law banning TikTok that was upheld by the U.S. Supreme Court in 2025 (TikTok Inc. v. Garland).

He also asserts authority to unilaterally withhold congressionally appropriated grant-in-aid funds from state and local governments. Trump is making unprecedented use of federal funds as leverage to try to coerce state and local government compliance with his policies. Congress supported some of Trump’s cuts by rescinding funding approved under President Joseph Biden (2021-25). So far, Trump has withheld or rescinded billions of dollars of aid to states and localities across virtually all policy fields.

Vice President J. D. Vance has advanced the Trump Administration’s unitary notion of the United States, which rejects America as a creedal nation federally united by a set of principles. Instead, Vance propounds an ethno-nationalist understanding of “nation” as “a group of people with a shared history and a common future. It [the U.S.] is, in short, a nation.” Thus, for Trump, the United States is not a salad bowl of peoples living in federated states. A latent message here, supported by many Trump voters, is that the United States was founded as, and intended to be, a white Christian nation. This notion helps explain Trump’s opposition to immigrants (except for white South Africans) and birthright citizenship as well as his cavalier attitude toward states’ powers, including the residual powers guaranteed by the U.S. Constitution’s Tenth Amendment.

Trump’s first eight presidential months have been a blitzkrieg. He has issued more executive orders and faced more court challenges than any eight-month presidency. Trump is testing the constitutional limits of presidential power and of federal government power in more and deeper policy fields than any president. He is an extraordinary busybody for whom the smallest crevices of government and society are not off limits, as in directing state and local governments to eliminate painted pedestrian crosswalks that convey “political” messages, especially rainbow-colored crosswalks that support LGBTQ+ persons. In February 2025, Trump revoked approval of New York City’s new congestion toll. In August, he issued an executive order to withhold federal funds from state and local governments that have cashless bail policies.

Although the U.S. Constitution contains no emergency powers, Congress has granted presidents some emergency powers. Trump’s second Administration, unlike his first one (2017-21), is using emergency powers extensively. In January 2025, Trump declared an emergency on the Mexico-U.S. border, claiming a need to use U.S. troops to halt an “invasion.” In March, he invoked the dust-covered Alien Enemies Act (1798), alleging that a Venezuelan gang was conducting “irregular warfare against the territory of the United States.” He used this act to accelerate deportations. On 2 September, a federal appeals court ruled this invocation improper. Trump will try to appeal the ruling to the U.S. Supreme Court. In April, he invoked the International Emergency Economic Powers Act (1977) to impose tariffs in response to “the national emergency posed by the large and persistent trade deficit.” On 1 September, a federal appeals court ruled Trump lacks authority to impose tariffs. Trump is appealing this ruling to the U.S. Supreme Court. In August, Trump declared a “public safety emergency” to send National Guard troops onto the streets of Washington, DC, after having deployed troops in Los Angeles in June.

Trump is poised to violate a key constitutional pillar of federalism, the republican guarantee clause (Article IV, Section 4), which states:

“The United States shall guarantee to every State in this Union a Republican [i.e., democratic] 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.”

On 12 June 2025, Homeland Security Secretary Kristi Noem said: “We are staying here [Los Angeles] to liberate the city from the socialists and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into the city.”

The republican guarantee clause prohibits the federal government from “liberating” the people of any state or locality from their own democratically elected officials so long as the people can throw those officials out of office in the next election if they so choose. Such federal intervention would also violate the municipal home-rule provisions in many state constitutions. Uninvited presidential “liberation” would be the essence of centralized tyranny the founders wanted to prevent by inserting the guarantee clause into the Constitution in 1787.

Most big cities are governed by Democrats. To justify military intervention, Trump intimated on 15 June that many big cities are not republican governments; instead, they “are the core of the Democrat Power Center, where they use Illegal Aliens to expand their voter Base, cheat in Elections, and grow the Welfare State, robbing good paying Jobs and Benefits from Hardworking American Citizens.” More boldly, in response to a socialist winning New York City’s Democratic mayoral primary election in June, Trump exclaimed, “If a communist gets elected to run New York [in November], we have tremendous power . . . to run places when we have to.” By Trump’s logic, federal military intervention would fulfill, not violate, the guarantee clause. This logic is a threat to America’s federal democracy.

Trump also seeks to justify domestic military intervention by defining illegal immigration as an invasion, protesters as insurrectionists, and crime as rebellion. Trump, who is threatening to dispatch troops to Baltimore, Chicago, New York City, and elsewhere, allegedly to restore law and order, is laying groundwork to trigger the Constitution’s militia clause (Article I, Section 8, Clause 15), which permits the president to federalize and command states’ National Guard troops to suppress insurrections.

Trump’s use of troops in Washington, DC, has legal support because the city is the federal capital. Trump’s deployment of 4,000 California National Guard troops and 700 regular U.S. Marines to Los Angeles in June over the objections of the governor and mayor had a thin veneer of legality because Trump claimed troops were needed to protect federal immigration officers and federal property from violent protesters. Trump portrayed anti-deportation protests in Los Angeles as “a form of rebellion against the authority of the Government of the United States.” However, on 1 September, a federal judge ruled that Trump’s troop deployment in Los Angeles violated the Posse Comitatus Act (1878).

The Posse Comitatus Act mostly prevents federal military forces from enforcing domestic laws or overriding local law enforcement. However, the Insurrection Act (1807) allows the president to deploy troops without a governor’s consent to suppress “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States.” The president can employ troops “as he considers necessary to enforce . . . laws or to suppress the rebellion.”

Nearly all criminal behaviors such as murder, rape, and robbery are crimes against the people of the state where they were committed, not rebellions “against the authority of the United States.” The notion that a president would use the militia clause to demolish the republican guarantee clause would have shocked the American founders.

Aggravating the threat to federal democracy is that Republican governors of six states sent 850 National Guard troops to Washington, DC, to reinforce Trump’s troops, thereby undercutting the founders’ expectation that states would resist such federal encroachments. Furthermore, as of August, 53% of Americans approved of Trump’s anti-crime policies, thus reflecting the public’s misunderstanding of federal democracy.

Trump has especially clashed with sanctuary jurisdictions, namely, state and local governments that refuse to help federal immigration officials apprehend illegal aliens for deportation. In early August, Trump’s attorney general warned sanctuary jurisdictions “you better be abiding by our federal policies and with our federal law enforcement, because if you aren’t, we’re going to come after you.” Trump has tried to cut off federal funds and resources to sanctuary jurisdictions; however, federal courts have blocked such cuts.

The legal basis of sanctuary jurisdictions dates back to 1842 when the U.S. Supreme Court opined in Prigg v. Pennsylvania that state and local officials had no obligation to enforce the Fugitive Slave Act (1793) or help federal officers capture escaped slaves. However, state and local officials cannot obstruct federal officers. Trump sued Illinois and Chicago in February, arguing that their non-cooperation obstructed federal immigration officers; the district court dismissed the lawsuit.

Trump is pursuing unprecedented efforts to gain control of voting and the conduct of federal elections—matters that belong to the states—and to get voter registration data and other detailed election information from states. He wants to end voting by mail and machines, require documentary proof of citizenship to register to vote in federal elections, and impose other election requirements on all states.

The U.S. Constitution (Article I, Section 4) states:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Only Congress can impose election regulations on the states, and it has done so minimally since 1789. The president has no role except to sign election bills passed by Congress. Nevertheless, Trump claims that states are “merely an ‘agent’ for the Federal Government in counting and tabulating the votes.” States “must do what the Federal Government, as represented by the President . . . tells them, FOR THE GOOD OF OUR COUNTRY.” This notion again reflects Trump’s unitary conception of the United States.

The major 870-page congressional enactment (4 July) under Trump is dubbed the “One Big Beautiful Bill” (OBBB). It codified twenty-eight of Trump’s executive orders and will have numerous impacts on state and local governments, starting with many funding cuts. The OBBB especially cuts and seeks to restrain social welfare programs by motivating states to constrain costs. For example, OBBB requires states to pay 75% (up from 50%) of the administrative costs of the Supplemental Nutrition Assistance Program, which has 41.7 million recipients, and, for the first time, up to 15% of benefit costs, depending on a state’s payment-error rate. For Medicaid (health insurance for 71 million low-income people), states now face federal funding cuts, new eligibility rules, limits on provider taxes states levy to help pay for much of their share of Medicaid costs, and new work requirements for certain recipients.

The OBBB created a school-choice scholarship program for elementary and secondary school children, but states’ participation is voluntary. The statute rescinded President Biden’s permission for California to pursue an electric truck mandate, but California is maintaining the mandate. Trump has filed suit arguing that California is violating the OBBB. He also filed suit to overturn laws passed by California voters in 2008 and 2018 requiring all eggs sold in the state to be from cage-free hens. More generally, Trump is attacking all states’ green energy and climate-mitigation policies. By contrast, he dropped lawsuits filed by Biden against the police departments of Louisville, Kentucky, and Minneapolis, Minnesota.

A proposed ten-year moratorium on state Artificial Intelligence (AI) regulation was deleted from the OBBB because Trump’s coalition split on the issue. Tech companies lobbied hard for the moratorium, but Vice President Vance and many Trump voters opposed the moratorium because they fear big tech companies and they want protection from AI harms. Hence, states will remain the key AI regulators until Congress fully or partly occupies this field.

Trump’s tariff policies adversely affect states and localities that rely heavily on international trade. Tariffs also frustrate states’ efforts to promote exports and attract foreign investment and tourists.

Other state and local government concerns include Trump’s crippling of the Federal Emergency Management Agency, which is the federal government’s principal disaster-assistance provider, and his deletions, reductions, and possible politicization of federally collected data that state and local governments need for many purposes such as economic development, taxation, crime prevention, epidemics, disasters, transportation, housing, and environmental protection.

To date, the federal district and appeals courts have been the only checks on Trump. Congress has been supine because each chamber’s Republican majority has many members who support Trump while others fear to challenge him because Trump has a strong hold on their voters. There is a partial check in the Senate where Democrats are delaying confirmations of Trump appointees.

The November 2026 midterm elections when Americans vote for all U.S. House members and one-third of U.S. senators might produce a Democratic majority in one or both chambers eager to challenge Trump. The president’s party usually loses congressional seats in midterm elections. This is one reason why Trump seeks greater control over elections. He also is pressuring Republican states to redistrict their U.S. House seats so as to reduce the number of Democratic seats and increase Republican seats. In August, Texas, the first state to redistrict, shifted five Democratic seats to probably safe Republican seats. Democratic California will likely retaliate by increasing its Democratic seats. Redistricting warfare has broken out between Democratic and Republican states.

Because the U.S. Constitution (Article 1, Section 2) mandates a national census every ten years, states have redistricted decennially. The Constitution does not prohibit mid-decennial redistricting, but a longstanding constitutional norm prohibited it. Mid-decennial redistricting, therefore, is a significant example of the erosion of time-honored norms.

As of late August, an unprecedented 337 legal challenges had been filed in federal district courts against Trump—many filed by Democratic states. Trump has lost most of the thus far decided cases. He has appealed only a small number, leaving most intact and not seeking to defy the courts, although the Washington Post reported that as of July 2025, Trump was “accused of defying or frustrating court oversight in 57 of” 165 court judgments.

The U.S. Supreme Court has not yet impeded Trump. In June, it gave him a major pyrrhic victory in Trump v. CASA, which limited the authority of federal district-court judges to halt Trump policies nationwide. However, judges have found other ways to enjoin his policies nationwide. On Trump’s emergency appeals to the high court, the court has mostly allowed his policies to continue while lower courts process the cases before possible final Supreme Court review.

Current experiences with President Trump indicate that James Madison’s hope that the separation of powers within the federal government and between the federal government and the states would be “a double security” for the rights of the people (Federalist 51) has been weakened significantly by one-party control of the presidency, Congress, and 23 states. However, the American federal system has been resilient, and Trump’s presidency is often more performative than substantive, although his performances can be damaging, polarizing, and normatively corrosive, and 40 months remain in Trump’s presidency.