Immigration Article of the Day: Federalism by Extortion by Jacob Hamburger
Federalism by Extortion by Jacob Hamburger
A distinctive feature of the second Trump administration has been its efforts to pressure public, private, and nonprofit actors into compliance with its political agenda. In its dealings with universities, law firms, media outlets, and even foreign governments, a new mode of governance has emerged. The federal government threatens individual targets—with funding cuts, withholding regulatory approval or other benefits, and civil or criminal enforcement—aiming to pressure them into bilateral “deals” on the administration’s terms, and to induce others to follow suit.
This Essay explores how this governance regime has infiltrated intergovernmental relations—examining the emergence of “federalism by extortion.” Transactional “dealmaking” and attempts at coercion are hardly novel in U.S. federalism. Much of the working relationship between federal, state, and local governments is effectuated through bilateral agreements. At the same time, case law relating to conditional spending provisions, preemption, and anti-commandeering set parameters for when federal law can and cannot compel sub-federal action. Against this backdrop, state and local governments enjoy in theory far more extensive legal protections than private entities that may depend on federal benefits. Despite these protections, however, the administration and its allies in Congress have taken numerous steps to raise the cost of non-compliance.
The implications of federalism by extortion stretch far beyond the Trump administration’s signature issue. This new governance regime may be one in which the structural protections of federalism are weaker than previously assumed. In this new political economy of federalism, state and local governments may find themselves in a similar position as the government’s private targets, with some in a stronger political or fiscal position to resist federal extortion than others.
