This week, a reader asked me what my thoughts were regarding states’ rights, as they relate to the use of the National Guard.
I happen to be a huge proponent of states' rights. The power dynamic between the states and the federal government has slowly but dramatically shifted over the decades. The federal government, in my lifetime and the preceding decades, has inexorably assumed more power and control over the states. There is no sign of this trend slowing, stopping, or reversing.
The Tenth Amendment to the U.S. Constitution affirms that any powers not delegated to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people. It’s the constitutional foundation for states’ rights and limits on federal authority.
And for much of U.S. history, the states were the primary actors in governance, especially in areas like education, law enforcement, infrastructure, and social policy. The federal government’s budget and administrative footprint were quite small until the 20th century.
Until the Great Depression and World War II, the Tenth Amendment and prevailing constitutional interpretation kept the federal role limited. Then, a series of Supreme Court rulings reinterpreted the Commerce Clause, weakening prior limits rooted in the Tenth Amendment and allowing Congress to regulate far more broadly. A series of new federal entitlements were added, including Social Security, Medicare, and Medicaid. And there has been a massive expansion of federal agencies.
In 1900, the federal government’s total spending was around 3% of GDP. Today, it's closer to 24%. Just in the last ten years alone, the federal budget has doubled to close to 7 trillion dollars, a number so large it is difficult to grasp.
While states retain constitutional sovereignty on paper, their practical autonomy as governing jurisdictions has steadily eroded. However, states do not have to help the federal government enforce federal law.
California, for example, enacted the California Values Act in 2017, which prohibits state and local agencies from using resources for federal immigration enforcement. The law is part of California declaring itself a “sanctuary state”, effectively shielding state/local law enforcement from ICE demands unless high-level legal thresholds are met.
But California can not interfere with or obstruct federal agencies carrying out the enforcement of federal law. Under the Constitution, federal authorities have supremacy in executing federal statutes. This bedrock legal principle has been reaffirmed repeatedly by the courts. In our system, there is only one legitimate path for resisting laws one finds unjust: repealing or reforming them through the democratic process.
So it’s a bit of a misnomer for anyone to be calling themselves a sanctuary - the federal authorities have the right to enforce federal law everywhere in the country.
In 1963, Alabama Governor George Wallace blocked two Black students from enrolling at the University of Alabama, defying a federal court order. President Kennedy federalized the Alabama National Guard to enforce the law. Wallace stepped aside when confronted by armed Guardsmen.
Today’s legal standoff over immigration enforcement underway in California, with the state suing to end the President’s deployment of the California National Guard, raises similar core Constitutional issues.
California is arguing that the federal deployment of the National Guard without the governor’s consent represents a dangerous overreach, not just of executive power, but of the foundational principle of federalism.
The National Guard is, by law and tradition, a dual-sovereignty force: trained and equipped by the federal government, but ordinarily under the command of state governors unless clearly justified by an emergency. Governor Newsom’s objection is not just political, it’s constitutional. California’s position is that there is no declared insurrection, no rebellion, no breakdown of civil order on the scale that would legally justify federalizing the Guard under 10 U.S.C. § 252 or § 253.
Moreover, deploying troops in a domestic law enforcement context, especially amid protests involving immigration and civil rights, raises First and Fourth Amendment concerns and risks inflaming tensions rather than restoring order. California argues that such a move undermines civilian control at the state level, threatens to turn military force into a political tool, and sets a precedent that could erode state sovereignty nationwide. In as lopsided a federal system as we have, states still are not mere administrative units of Washington; they are coequal governing jurisdictions.
The federal government’s stance is that while states like California may object to the optics or political implications of deploying the National Guard, the Constitution does not give governors a veto over federal enforcement of federal law, and the President needed the National Guard in order to enable ICE to do their job. If state and local leaders had not used their platforms to undermine federal agents operating lawfully, by both inciting and also failing to quell civil unrest, the National Guard would not have been necessary.
Ask yourself after listening to Governor Newsom, Mayor Bass, and other California officials, and looking at the videos from LA. Is California simply not participating in federal immigration enforcement, as is its right, or is it actively resisting and interfering with it?
As of this writing, the lawsuit is winding its way through the courts. Fortunately, there have been no recent images of fires or assaults on police, so any need for the National Guard to be deployed in LA seems to have disappeared.
I think the longstanding and obvious non-judicial solution to this mess is to come together with proper legislation to fix our immigration system. Maybe using the current situation, we can finally provide the necessary motivation to national legislators to DO THEIR JOB.
For the people legitimately concerned about border control, our border is secure right now, and we can make sure we keep it that way, so now it is time to look at what else we need to do.
We should expand the number of legal immigrants we allow into our country, as well as dramatically improve the whole process. Immigrants have been and always will be an integral part of the ongoing American experiment.
And yes, we should also provide a fair pathway to citizenship for the people who have been contributing to communities all over this country for years. We need to somehow acknowledge that they cut the line. I don’t know what that looks like, but we should be able to figure it out.