President-elect Donald Trump and his allies have vowed to fundamentally change American politics from Day 1.
From mass deportations to eliminating the Department of Education, Trump’s policies could affect millions of people and communities across the country. However, according to experts, there is a major obstacle that will make it difficult – if not impossible – for the incoming administration to implement these plans: States and municipalities.
In this Sept. 6, 2024, file photo, Republican presidential candidate and former president Donald Trump looks on during a news conference at Trump Tower in New York.
David Dee Delgado/Reuters, FILE
Alison LaCroix, a professor of constitutional law at the University of Chicago Law School, told ABC News that the power to regulate and implement key laws rests strictly within the states and many local leaders are already working to prepare for a future Trump administration.
“The states have a lot of leverage in the constitutional system, the legal system and other systems,” he said. “That usually comes as a surprise to people who don’t know how much power they use, but we’ll soon find out what they’re worth.”
Other experts who have focused on Trump’s biggest sectors, such as public health and immigration, agreed, but said they are preparing for a legal and political battle that could likely drag on for a long time.
Immigration
For example, Trump and his allies have been very open about their proposals deporting millions of undocumented immigrants.
Trump has said he plans to remove at least one million illegal immigrants from the US as soon as possible.
Elora Mukherjee, director of Columbia Law School’s immigration clinic, told ABC News that states cannot act without the federal government’s immigration enforcement agreement.
“The fact that the federal government cannot mandate local law enforcement is a federal priority setting principle,” he said.
Democratic governors such as California’s Gavin Newsom and Illinois’ JB Pritzker have vowed not to support Trump’s mass deportation plan, and Mukherjee said their claims are not empty words.
On June 19, 2018, protesters marched in New York against ICE actions and in support of the president’s separation of families.
NurPhoto via Getty Images, FILE
He said the states had already demonstrated their power by blocking them during the first Trump administration Immigration and denying agency detainers access to courts by Customs Enforcement for potential raids and longer detention of detained immigrants without prosecution.
He added that attempts by the Republican-controlled Congress to change immigration and deportation laws to take away states’ rights will take time and are likely to face resistance even among Republican members who think it is too extreme.
“The Trump administration will issue many executive orders, but a large number will be illegal and unconstitutional,” Mukherjee added.
At the same time, Mukherjee said conservative state and local governments could strengthen anti-immigrant policies and make it harder for migrants and asylum seekers to gain a path to citizenship.
60 counties and police districts, many of them in Florida, have entered into 287(g) agreements with ICE, in which local law enforcement can carry out immigration policies on behalf of the federal government, such as executing warrants and detaining undocumented immigrants, according to Mukherjee. .
Florida also passed SB 1718 last year, which has several provisions that curb undocumented immigration, including making it illegal to transport undocumented immigrants and requiring hospitals to ask patients for their immigration status.
Mukherjee emphasized that states cannot try to enforce their own laws in other jurisdictions, following the 1842 Supreme Court case Prigg vs. Pennsylvania. That case overturned the conviction of a man convicted under a state law that prevented the taking of slaves, even though federal law supersedes state law, but states are not required to use their own resources to protect federal laws.
“It is very difficult and illegal for one state to impose its laws on another,” Mukherjee said.
Even when it comes to executive orders, Mukherjee said the laws are mostly in favor of states and municipalities.
Trump’s pick for “border czar” Tom Homan has already threatened to go after states and cities that refuse to comply with the president-elect’s deportation plans, among other things. the arrest of the mayor.
Mukherjee said there is no legal mechanism or modern legal precedent that allows the federal government to imprison local leaders for not adhering to an administration’s policy.
“Sanctuary city laws are fully supported within the U.S. Constitution,” he said. “The Xth Amendment is very clear. Powers not granted to the federal government belong to the states or the people. This is the foundation of US constitutional law.”
Public education
State education officials are in the same boat when it comes to federal oversight, experts said.
Although Trump and other allies have made it clear that they want to Eliminate or weaken the federal Department of Educationfunding for schools and educational programs is largely in the hands of state legislatures and local school boards, according to Alice O’Brien, general counsel of the National Education Association.
“In reality those campaign promises are much harder to achieve,” O’Brien told ABC News. “They would need federal legislation to comply.”
Federal oversight has little control over local school curriculum policies, he added.
O’Brien noted that much of federal oversight of public schools falls outside the purview of the Department of Education. For example, state school districts must comply with laws set at the federal level, such as nondiscrimination on the basis of race, religion, and disability.
“States and school systems cannot run anywhere that conflicts with the federal Constitution,” O’Brien said.
In terms of funding, although the federal DOE provides floor funding to many school districts, it is a small fraction compared to the funding that comes from city and state coffers, O’Brien explained.
public health
“How many dollars are allocated to schools varies from state to state,” he said. “Finally, how much money the State budgets have decreases.”
Dr. Georges C. Benjamin, executive director of the American Public Health Association and former Maryland health secretary, told ABC News that state public health offices operate under the same local jurisdiction and would therefore have more autonomy over health policies.
Trump’s pick for Health and Human Services, Robert F. Kennedy Jr., has been a staunch proponent of anti-vaccination policies and has pushed for an end to fluoride in the water supply.
Benjamin said he is concerned about having someone with no professional healthcare experience and public rejection of proven healthcare policies, however, he noted that states and municipalities still have enormous power to enact policies.
In this Aug. 6, 2021, file photo, a man receives a Covid-19 vaccine at the International Union of Operating Engineers room at Local 399 in Chicago.
Kent Nishimura/Los Angeles Times via Getty Images, FILE
Georges noted that fluoride levels in water supplies are mandated at the local level, and many counties have chosen not to implement them. Federal health agencies can make recommendations, but they can’t block a municipality from implementing fluoridation, he said.
“There’s no fiscal penalty for not following through,” Benjamin said of the federal recommendations.
The same rules govern local vaccination requirements, he added.
“(The federal government) monitors vaccine mandates at the federal level, with the federal workforce, but they don’t monitor the bulk of childhood mandates,” Benjamin said.
He noted that the country has seen the effectiveness and efficiency of the state’s public health systems in the two years since COVID-19 hit the nation and rolled out vaccines. All Republican and Democratic states imposed shelter-in-place and social distancing rules during the peak of cases, Benjamin said.
“I think we have a wait-and-see attitude,” he said.
Meanwhile, several states have taken steps to strengthen state health policies, especially regarding reproductive rights, through legislative action and ballot measures.
Power in state prosecutors
One of the biggest ways states will be able to make their laws and policies “Trump-proof” is through state prosecutors and courts, LaCroix said.
“We will see a lot of arguments in the local government and what they can do,” he said.
Mukherjee said several state attorneys general were able to take Trump to court during his first administration and push back against immigration proposals such as a ban on residents of Muslim countries and deportation plans.
In this June 1, 2017, file photo, CASA protesters protest President Donald Trump’s immigration and deportation policies during a rally outside the White House in Washington, DC.
Saul Loeb/AFP via Getty Images, FILE
Mukherjee said despite the rise of Trump-backed judges in the federal courts, the rule of law still exists when it comes to immigration. For example, earlier this year, a federal judge struck down a provision in Florida’s SB 1718 that threatened criminal charges for people transporting an undocumented immigrant.
U.S. District Judge Roy Altman, a Trump appointee, ruled against that provision, saying immigration-related enforcement was outside the state’s power.
“This time it will be harder for immigrants and non-citizens to win big victories … but bipartisan federal judges upheld the Trump administration’s worst abuses for the first time,” he said.
LaCroix echoed that statement and said partisanship can go further, especially when it comes to laws contained in the state and federal constitutions.
“Judges still have to give reasons for what they do and ‘because our party rules’ has no weight,” he said.
