August, 2025
Washington — Resistance to what many institutions (universities, law firms, media organizations) consider Trump administration extortion has been centered around checks and balances associated with the Constitution's separation of powers; that is, the checks and balances of the legislative and judicial branches against the executive branch.
Unfortunately, much less attention has been given to the Constitution's division of powers; that is, the sovereignty of the states within a system of dual sovereignty established both by the Constitution and affirmed by the Tenth Amendment.
Extortion is the province of state law and can be adjudicated in state courts. One reason less attention has been given division of powers' checks on Trump administration extortion is the assumption that such litigation would not survive opposition based on other constitutional provisions centered around what is called supremacy clause immunity. If a federal question is involved, the litigation becomes the province of, and can be removed to, the federal courts, where the issue returns to separation of powers considerations.
However, there are limits to supremacy clause immunity and those limits need to be tested in litigation to determine if the Constitutional system of dual sovereignty has remaining supporters. Surely the Federalist Society would have to weigh in on the subject that is the foundation of its very existence. There is reason to doubt that the current Supreme Court would abandon dual sovereignty to side with the Trump administration's more egregious extortion practices.
State court litigation could proceed quickly and likely find its way to the increasingly well-worn path to the Supreme Court's emergency docket.
Some potential litigants will have to rise above their own long-held prejudices against thinking that anything to do with states' rights is somehow distasteful and that society's progress relies on an ever-more powerful federal government. If there was ever a time to repent of such notions, it is now.
Why should universities follow the above advice? Because their lawsuits so far, based on administrative law, institutional autonomy, free speech, academic freedom, and due process have vanishing prospects for success. And why follow advice from me? Because I have a track record in these matters, having succeeded in litigation that (according to AI) has had significant impacts on two major constitutional issues under the First Amendment and the Eleventh Amendment. Readers can look it up.
Institutions need urgently to pursue their cases in state courts to take advantage of both legal and political strategies offered by the checks and balances of dual sovereignty. I predict victory, but even a defeat would offer drawing a line on currently bottomless extortion.
