Don't Tread on Me, Trump

Judge invokes anti-commandeering principle to quash federal subpoenas. Plus, Friday’s Lighter Fare.

Lighter Fare

Here at Talking Feds, we like to lighten things up on Fridays whenever we can. Today, I’m happy to share a piece of good news in the fallout from Trump’s reign of terror over Minnesota late last year. Federal judges have, for the most part, held the line against some of Trump’s most harmful and unlawful policies: from the Kennedy Center, state voter rolls, to the National Guard occupation of blue states. Judge Patrick Schiltz of the District Court of Minnesota has weighed in with a strong rebuke of the administration that relies on a theory—the so-called “anti-commandeering principle”—that could have wide application in the efforts of states to push back on broad assertions of federal power.

Before we dig into Judge Schiltz’s order, let’s announce a winner and kick-start a new five-words-or-fewer contest.

First, a winner. After Melania director, Brett Ratner, joined Trump on his trip to China, we asked: “What new film is Ratner working on?” Mark answered aptly: Slush Hour. Kudos, Mark! A member of our team will be in touch to get a Talking Feds mug headed your way.

For a chance to be our next winner, submit your answer to this week’s five-words-or-fewer contest here. After Donald Trump went to New York for Game 3 of the NBA Finals and held a UFC match at the White House for his birthday, we asked: how will Trump put his stamp on the World Cup?

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Don’t Tread on Me, Trump

From the beginning of Trump 2.0, the Trump administration has understood that several of its most extreme ambitions require help from the states. It needs state police to hold immigrants for ICE. It needs state election officials to share voter rolls. It needs state universities to abandon DEI programs, state attorneys general to stand down, state and local governments across the country to stop asking questions and start pulling Trump’s barge.

Allergic to playing nice in the sandbox, not to mention the legal constraints of bossing around other sovereigns, the Trump administration has relied on bluster and strong-arm tactics. It has threatened to cut federal funding, issued executive orders, filed lawsuits, and used the grand-jury process to try to work its will.

Last week, Chief Minnesota district court judge Patrick Schiltz issued a blistering opinion quashing six federal grand-jury subpoenas targeting Minnesota’s governor, two mayors, attorney general, and two county boards. In the process, Schiltz laid down a constitutional marker that reaches far beyond Minnesota and has potential application to the gamut of the fights with states that the feds have provoked.

The subpoenas were part of Operation Metro Surge, the largest civil immigration enforcement operation in DHS history. The administration blanketed the Twin Cities with an over-the-top invasion to find and deport undocumented people. Minnesota, as a state, has an undocumented population that is less than half the national average, but its political leadership is blue.

When the state and cities sued to challenge the operation, the administration responded by serving the six sweeping grand-jury subpoenas. The subpoenas demanded years of records relating to Minnesota’s immigration enforcement posture.

Chief Judge Schiltz quashed all six.

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In addition to establishing the separation and distribution of powers within the branches of the federal government, the Constitution draws the boundaries between the federal government and the states in several important ways. In general, enumerated federal powers, for example, Congress’s power to regulate interstate commerce, necessarily permit incursions on state government.

Conversely, the Tenth Amendment specifies that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That prolix formulation means that the feds can’t just go weeding in the states’ gardens. For example, there is no general federal police power; that’s a function of state government.

In a series of cases dating from the 1990s, the Supreme Court, led by the most conservative Justices, has construed the Tenth Amendment’s reservation of powers to the states to incorporate a principle of anti-commandeering. That means that the federal government cannot command the states or their officers to take any action to effectuate federal policy. It may not, in other words, turn state governments into instruments of federal will—cannot make them legislate, regulate, or enforce on Washington’s behalf.

The Court has been very strict in its application of the anti-commandeering principle. It has struck down federal efforts to get the states to undertake even modest, commonsensical actions. So in Printz v. United States, decided in 1997, the Court struck down a provision of the Brady Act that required local law enforcement officers to run background checks on handgun purchasers. Writing for the majority, Justice Scalia was categorical: the federal government may not “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Period, full stop.

The Court extended the principle in NFIB v. Sebelius in 2012, this time addressing coercion through the funding power rather than direct commandeering. The Affordable Care Act conditioned existing Medicaid funding on states accepting the Medicaid expansion—comply or lose what you already have. Chief Justice Roberts called it a “gun to the head” and struck it down. The federal government may attach conditions to new money; it may not use the threat of yanking existing funds to muscle states into compliance.

And in Murphy v. NCAA in 2018, Justice Alito extended the principle further still, holding that Congress cannot dictate what state legislatures may or may not do: the Constitution, he wrote, “confers on Congress the power to regulate individuals, not states.”

The anti-commandeering principle has been a conservative hobbyhorse of the Court’s right flank. The doctrine was developed as a bulwark against federal overreach, animated by a vision of robust state sovereignty that is a long-time article of faith of the conservative legal movement. And as in the Brady Act case, Republican states have made hay with the same arguments against democratic federal administrations.

The Trump administration, in other words, is now running headlong into a constitutional wall that its own judicial allies built.

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This is not the first time that Chief Judge Schiltz has butted heads with the administration’s take-no-prisoners immigration policy and Operation Metro Surge in Minnesota, during which federal agents killed two Minnesotans, Renee Good and Alex Pretti. Earlier this year, he publicly rebuked ICE for violating court orders at a pace he said exceeded what most agencies manage in a lifetime.

That has become a familiar backdrop to the administration’s defense of its most aggressive policies. Courts across the country have jettisoned the presumption of regularity that the Department of Justice had built up over generations of responsible and candid comportment. It’s a lasting price of these atrocious 17 months that ultimately is borne by the public.

So here. Schiltz laid out a damning sequence of events. The day after the state of Minnesota, Minneapolis, and St. Paul filed suit challenging the surge, Trump went on Truth Social to promise the “GREAT PEOPLE OF MINNESOTA” that “THE DAY OF RECKONING & RETRIBUTION IS COMING.”

Three days later, someone leaked the existence of grand-jury subpoenas targeting Walz and Minneapolis Mayor Jacob Frey to multiple media outlets, at least one of which cited “U.S. officials” as its source. There was a fusillade of federal attacks on the state the same day: a White House press release warning that “Minnesota’s ‘Sanctuary’ Defiance Has Consequences”; a Blanche television appearance suggesting the governor and mayor may have committed federal crimes; and a Bondi post warning “No one is above the law.”

Four days after the subpoenas were served, and the same day that Alex Pretti was killed by federal agents, Bondi sent Walz a saber-rattling letter, reportedly with drafting help from within the White House. With ominous language but no legal basis, the letter demanded that Minnesota repeal its sanctuary policies, hand over Medicaid records, and give the Department access to the state’s voter rolls.

Bondi followed up with a post on X, saying that she had told Walz he had “BETTER support President Trump.” That’s cooperative federalism for you in the Trump administration.

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At the hearing on the motions to quash, Schiltz ordered the DOJ to provide actual factual support for its claimed investigative basis. The Department initially offered five justifications for the subpoenas, but had to withdraw one before the hearing after admitting it could find no verifiable source for the assertion. The remaining four all shriveled up under light scrutiny.

The Department’s overall investigatory purpose, Schiltz concluded, was “risible.” On one side of the ledger, the evidence that the subpoenas were issued for unlawful reasons was, in his word, “overwhelming”: the threats, the coordinated media campaign, the Bondi letter to Walz, and the entire course of conduct recited above. On the other, the DOJ failed to identify a single plausible investigatory justification.

“Risible” is an exceptionally biting characterization coming from a federal court, but the word earns its keep. And it’s another sign o’ the times, as a famous Minnesotan put it. It’s a stinging dismissal from a judge who is all too familiar with the Department’s hijinks.

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But the most important part of the ruling isn’t the improper-purpose finding. It’s the constitutional ground on which Schiltz plants his flag: the Tenth Amendment’s anti-commandeering principle.

It’s now familiar ground that the feds seek to recharacterize any resistance as illegal, criminal interference with federal law enforcement. We’ve seen it in dozens of arrests of protesters on grounds of obstructing federal law enforcement, only for the feds to have to dismiss the charges later when they realized they’re unprovable.

Much the same dynamic was at play with Trump’s and Bondi’s browbeating in Minnesota. They attempted to move the line dividing legitimate federal and state authority, recharacterizing a declination to help the federal mission as obstruction of justice. It was ignorant and arrogant in equal measure.

Schiltz applied a straightforward anti-commandeering analysis to quash the subpoenas, concluding that Minnesota has a constitutional right to decline to assist ICE.

The administration tried to recast the exercise of that constitutional right as criminal conduct: sanctuary policies became “impeding federal law enforcement”; a city council member’s eviction advocacy became potential obstruction; county guidance telling receptionists to call a supervisor became evidence of a conspiracy.

More outlandishly, the subpoenas then demanded years of records—internal communications, policies, directives, training materials—having scant connection to the supposed obstruction of federal immigration law, and directed to the entire top tier of Minnesota’s political leadership.

Schiltz held that the federal government cannot directly order Minnesota to enforce immigration law; it cannot accomplish the same result by threatening criminal prosecution and grand-jury subpoenas when Minnesota declines. In a footnote, Schiltz noted that the Tenth Amendment argument alone was sufficient to quash all six subpoenas—and that DOJ’s brief had not acknowledged the argument, much less engaged with it.

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The anti-commandeering doctrine is one of the most powerful and underdeployed weapons available to states resisting administration bullying. The administration has threatened to cut federal education funding unless states comply with directives on whitewashed curricula and DEI programs. It has pressured state election officials to share voter rolls and cooperate with federal purge efforts—Bondi’s letter to Walz demanded Minnesota’s voter rolls in the same breath as the sanctuary repeal. It has conditioned federal grants on local law enforcement cooperation with immigration priorities—the same coercive structure NFIB condemned as a gun to the head. It has sued states whose laws limit police cooperation with ICE.

In each of these contexts, the same constitutional question is live: is the federal government staying wholly in its own lane, or is it commandeering state government to help enforce federal law on its behalf? The dual-sovereignty design of the Constitution means the states are not annexes of federal enforcement. They cannot be threatened, subpoenaed, or prosecuted into becoming one.

Schiltz’s ruling is the clearest application yet of the Tenth Amendment as a check on the administration’s campaign to force states into the position of subordinate enforcers of federal law. It should be picked up widely and immediately, by lawyers and by states pushing back against every variant of the administration’s coercion campaign. The anti-commandeering principle has been lying in wait. It is now in play.

Talk to you later.

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On Friday, July 3, Talking San Diego will welcome Senator Adam Schiff. Senator Schiff and I will discuss the challenges facing our democracy as it marks its 250th year and how to overcome them.

Tickets can be found here or at TalkingSanDiego.net