A former prosecutor flagged that the “most powerful” legal weapon that states have against President Donald Trump is “now in play.”
Former U.S. Attorney Harry Litman wrote in a Friday piece for his Talking Feds Substack that a judge’s recent rebuke against the Trump administration has opened the door for states to rely on the “anti-commandeering principle,” a 10th Amendment doctrine.
“The anti-commandeering principle has been lying in wait. It is now in play,” Litman wrote. “It should be picked up widely and immediately, by lawyers and by states pushing back against every variant of the administration’s coercion campaign.”
Earlier this week, Judge Patrick J. Schiltz of the District Court of Minnesota quashed six federal grand-jury subpoenas from Trump’s Department of Justice.
Litman explained that Schiltz’s ruling killed DOJ subpoenas targeting the Minnesota governor, two mayors, the attorney general, and two county boards amid Trump’s Operation Metro Surge, “the largest civil immigration enforcement operation” in the history of the Department of Homeland Security, the piece noted.
“When the state and cities sued to challenge the operation, the administration responded by serving the six sweeping grand-jury subpoenas,” Litman wrote. “The subpoenas demanded years of records relating to Minnesota’s immigration enforcement posture. Chief Judge Schiltz quashed all six.”
Schiltz’s “strong rebuke” relied on the anti-commandeering principle, which “means that the federal government cannot command the states or their officers to take any action to effectuate federal policy,” Litman’s wrote.
The principle derives from a Supreme Court interpretation of the 10th Amendment’s reservation of powers to the states, Litman noted.
“That could have wide application in the efforts of states to push back on broad assertions of federal power,” Litman wrote. “The Trump administration, in other words, is now running headlong into a constitutional wall that its own judicial allies built.”
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