This article is part of a series on the relationship between state and federal law.
The Trump administration moved swiftly to curb sanctuary cities and other state and local practices that contradict policy priorities. But, as opponents quickly pointed out, the administration’s moves ran head-on to the Supreme Court’s “anti-commanding” principles. According to that principle, the federal government cannot support state and local governments and their officials for federal purposes.
Still, there is good reason to be skeptical of anti-commanding principles and hesitate to expand it further. Critically, our constitution provides another pathway to constrain the president’s overreach, that is, separation of power. Discussions rooted in separation of power reflect our constitutional design more faithfully and promote democratic accountability.
Anti-Commander Principles
Our constitution contains very simple and simple provisions that explain the relationship between state powers and the federal government. That is the 10th revision. “Permissions not delegated to the United States by the Constitution and are not thereby prohibited by the State are reserved to the State or the People, respectively.”
The 10th Amendment sounds like a very basic formula for power division in the federal system. All it says is that the state “reserves” powers that the federal government does not have. (Attentionally, it says nothing about the fundamental scope of federal or state powers. It simply divides those powers between the state and the federal government.) Language is so simple that the Supreme Court once described the 10th Amendment as “trithm.”
However, from the second half of the 20th century, the courts have read more of this language. 1992, in New York vs. United Statesthe court held that the federal government cannot force states to regulate states in accordance with federal plans. In that case, the court presented a federal clause stating its choice between accepting ownership of low-level nuclear waste or regulating that waste in accordance with federal standards. The court stated that either option was acceptable for federal services and held that the choice between the two had similarly “controlled” the state in violation of the 10th Amendment and the “confirmation” of its state’s sovereignty.
In creating anti-commanding principles, the Supreme Court relied on three sources. First, it was intended to look at history very simply and examine the intent of the framer. The court then applied its own precedent. This was read to prohibit the federal government from directly compelling states from enacting or enforcing federal regulatory schemes. Finally, the court wrote that anti-commanding principles promote political accountability by transparently assigning responsibility to officials (states or federals) who actually adopted a regulatory program.
The court later expanded the anti-commander principle in two ways. 1997, in Printzv. UnitedStatesthe court ruled that the federal government cannot serve as a state or local officer under the federal regulatory scheme. 2018, in Murphy vs. ncaaThe court ruled that the federal government cannot. prohibit In that case, the state that enacts a valid law that was the state law that allowed sports betting in that case.
The court also applied the anti-commanding principle to conditional federal spending programs. 2012, in Nfibv. Sebeliusthe court found that the Medicaid extension of the Affordable Care Act violated anti-Comandan principles. Under this law, Congress provided states with very generous financial incentives to increase Medicaid eligibility. However, the law also provided that states could lose their entire federal Medicaid allocation if they refuse to expand eligibility. The court said this amounted to excessive “forcement” and therefore the Medicaid extension of the law violated the anti-commanding principle. The court repeated its previous points on political accountability (from new york): If the federal government can command a state, voters will not know which staff should consider.
When applied faithfully, the anti-commanding principle significantly suppresses President Donald Trump’s specific efforts to curb state and local governments. Consider, for example, Trump’s attempts to crack down on the jurisdiction of the Sanctuary. The “sanctuary” jurisdictions are state and local governments, which in some way restrict federal immigration officials from supporting immigration enforcement efforts. Trump attacked these jurisdictions in his first term. Because they allegedly undermined the federal government’s activities and priorities regarding immigration enforcement.
He renewed his attacks in the second season. On his first day in office, Trump issued an executive order claiming “to the greatest possible under the law,” withholding all federal funds from the sanctuary jurisdiction. (It was followed by at least two executive orders that sought to cut federal funds to sanctuary jurisdictions.) Then, in early February, the Trump administration sued the sanctuary jurisdictions and ordered federal courts to suspend sanctuary practices.
In support of the move, the Trump administration argues that federal immigration laws are ahead of state and local sanctuary policies. In particular, the administration refers to 8 USC section 1373, which prohibits state or local governments from preventing or restricting officers from communicating with federal officials. (Reads similarly to 8 USC Section 1644.) The administration also argues that sanctuary policies illegally discriminate and regulate the federal government.
The administration’s position is that state or local non-cooperation with federal immigration officials violates federal hegemony and that state or local officials may have. Must do Work with federal immigration officials in certain ways.
However, if we apply anti-commanding principles faithfully, the administration’s actions are almost certainly unconstitutional. Under that principle, federal law cannot force state or local governments to cooperate with federal immigration officials. That is the very definition of a commander. And Trump cannot condition federal spending on federal jurisdiction, at least as long as the conditions amount to coercion, the species of command. (This, of course, depends on the relative amount of federal grants and contracts the administration will ultimately withhold.) This is the conclusion of several federal courts in Trump’s first term, and there is no reason to believe the courts will not stop his new efforts as well. Certainly, one court already has one.
Take another example. Trump threatened to withhold the federal disaster relief fund in California unless the state adopts the Voter ID Act, allowing the federal government to assume control of water management policies and abolishing development regulations in coastal areas. Again, these conditions almost certainly correspond to the enforcement below upon receipt of federal disaster relief assistance. nfib. In fact, the need for state disaster assistance may be even greater than relying on federal Medicaid funding.
From the 10th Amendment to the Separation of Power
But what happens if there is no anti-commanding principle? What if the whole thing is just composed?
After all, the court’s foundation on principles is very weak. new york and printz. Constitutional texts do not support it. Historical practices and original understandings at the time of framing are vague or even counteract anti-commandie principles. And the justification of political mathematics is very oversimplified and highly contested.
Judge John Paul Stevens summarized why our constitution does not include anti-Commonday principles in his consent new york:
Under the Union article, the federal government had the authority to issue orders to the states. The indirect exercise of federal power proved ineffective, so the framers of the constitution forced the federal government to exercise its legislative power directly on individuals within the state. There is nothing in its history to suggest that it has not imposed its will on some states, as the federal government has done under the article. The Constitution strengthened the federal government rather than diminishing it. . . .
The 10th Amendment does not ensure that the structure of the constitutional order or the value of federalism mandates such formal rules on the exercise of Congress’ powers delegated to clause I. On the contrary, the federal government directs many areas (including) state governments’ functions of states (including states) to state railroads, state school systems, state prisons, state elections, and many other state functions.
Similarly, Judge Byron White agreed to show why anti-commander principles undermine democratic decision-making.
Doctrine appears to rely solely on the court’s own precedent. This is a card house that barely supports such heavy constitutional doctrines.
But even if there is no anti-command principle, that does not mean there is no restraint in federal authorities associated with the state. Separation of power does the job and it gets even better.
Let’s once again consider the efforts to condition federal spending on the sanctuary jurisdiction and California. The separation of power prevents him from imposeting most or all conditions, independent of anti-commanding principles. This is because the president lacks the one-sided authority to impose conditions on federal spending. Under our Powers Separation System, it is the work of Congress. Congress has the authority to provide for federal spending and to set conditions on receipt of federal funds under Article 8. Unless Congress designates that the president can condition the receipt of federal funds, the president lacks the one-sided authority to do so.
This means that Trump violated the separation of power when he insisted that he would place the above conditions on receipt of federal funds to allow him to inflict acceptable in Congress’ “power of the wallet” and placed the above conditions. Unless Trump can point out certain legal powers to support his terms (and in these cases he can barely do so), he lacks the power to impose them.
This result – not an anti-commanding principle, but a separation of power, is to restrain the president from impose the conditions imposed on receipt of federal funds, and better reflects the constitutional order, including federal hegemony and separation of power. Moreover, it promotes transparency and democratic accountability better. This is because a “command committee” or condition on federal spending must appear in federal law (and thus promoting transparency). It has been effectively enacted by Congress and signed by the President (and thus promotes the broader accountability of both elected branches of the government). Finally, it suppresses a president who may succumb to exercising a distinctive enforcement body.
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By creating anti-commandie principles, the court has loaded more than it can withstand the 10th Amendment with enthusiasm for “state rights.” However, even without the anti-commanding principle, our constitution still limits how the federal government interacts with states. This does this through separation of power. This approach reflects our constitutional design more faithfully and promotes democratic accountability.
Stephen D. Schwin is a professor at the University of Illinois University of Chicago Law School.
Suggested Quote: Stephen D. Schwin, How the Constitution constrains the president’s overreach to the nationsᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (June 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/how-constration-consident-consident-consident-overrereach-against-states