How Can States Stand Up Against Trump?

Written By Leeja Miller

Sources:

Transcript:

Welcome to Why, America? I’m Leeja Miller. Last week, ProPublica released this doozy of a report: “We found that more than 170 US citizens have been held by immigration agents. They’ve been kicked, dragged, and detained for days.” Well documented abuses perpetrated by ICE and other DHS agents on the streets in cities and towns across the country against US citizens and non-citizens alike has been mounting, from pepper balling a priest to just yesterday shooting an undocumented immigrant during a traffic stop, groups of masked men grabbing people on the streets and shoving them into vans, disappearing them, their families not knowing what happened to them until days or even weeks later.

DHS has routinely, in every article I have read, used the excuse that agents are being doxed and violence against them has increased 1000% so they have to cover their faces, they have to use increased force because the danger posed against them is getting higher. DHS also routinely lies about the circumstances surrounding agents’ use of force, saying the person in question was acting aggressively, was armed, assaulted the officer first, and more, lies that rarely are proven in court, indicating they are willing to say whatever it takes to do whatever they want.

And earlier this year DOGE did away with DHS’s Office for Civil Rights and Civil Liberties, the internal investigative body that oversaw DHS activity and acted as an internal watchdog to respond to allegations of civil rights abuses perpetrated by DHS officers.

Of course ICE and DHS were not perfect before Trump came to office, they were arresting US citizens erroneously and otherwise abusing their authority under Obama and other presidents as well, but at a slower rate, and least back then immigration attorneys had a place they could turn to to lodge their complaints–now there is zero internal oversight. And there is also zero external oversight because DHS regularly either refuses to provide information to the public or lies about it when they do issue statements or tweets.

This has led many of you to ask me, what can states do to push back? Can states arrest federal agents? What about states’ rights? There are Democratic governors and attorneys general voicing their dissent, including most notably JB Pritzker of Illinois and Gavin Newsom of California, but writing strongly worded letters and trolling the president on Twitter doesn’t exactly do much to stop the abuse on the streets.

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This headline from NBC News caught my eye “Shooting by federal officer wounds immigrant and U.S. marshal in Los Angeles, officials say” Using the Ground News browser extension, I can see that in the US the Associated Press is considered “left leaning.” To get the big picture, I can click on Full Coverage, which will show me coverage of the same story from publications across the political spectrum.

My partner on today’s video, Ground News, uses 3 independent monitoring organizations to assess the bias rating for each publication. Each news monitoring organization has their own methodology - including editorial reviews, blind bias surveys, independent reviews, and third party research. These are legit INDEPENDENT organizations, but they are limited by the data available to them: their analysis is done in the context of the U.S. political system. Our overton window has shifted so far right that NBC News is considered “left leaning.” That tells you a lot about the context within which the media you’re consuming operates. And thanks to Ground News, I get even more context, including how factual each publication is and who owns it, giving me a well-rounded idea of the motivations, biases, and accuracy of the news I’m consuming. Wouldn’t it be great if everyone in America had that much information about the news they consume??

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So what can states do to push back against federal use of force? Well, turns out there’s a long history of states pushing back against federal policies they disagree with. Especially relevant to our discussion today is the state opposition leading up to the US civil war.

A helpful piece from the State Democracy Research initiative at the University of Wisconsin Law School, linked in the sources, says quote “In the mid-1800s, some Northern states opposed to the Fugitive Slave Act charged U.S. marshals for capturing or failing to release previously enslaved individuals. In some of these cases, state courts first ordered the marshals to release captured individuals under a writ of habeas corpus, and the marshals were then charged with criminal contempt and taken into custody if they disobeyed. The marshals typically then sought relief in federal court, also under writs of habeas corpus. In one prominent episode, Wisconsin authorities arrested an enslaver and two U.S. deputy marshals, charging them with kidnapping and assault and battery for capturing and jailing a previously enslaved person. A federal court ultimately ordered release of the trio, however, on the ground that they were acting in accordance with federal law.”

This is just one example of numerous instances in which the state authorities stepped in to try to protect the rights of persecuted minorities against the arm of the federal government. And as we saw in this instance, they weren’t always successful. But the efforts raised the profile of these activities in a meaningful way. I think we are quick to write things off for “not working” when they are, in fact, part of the larger picture and we can truly use all the opposition we got. Whether it’s a “No Kings” protest that didn’t create immediate change but definitely gave many people hope–those of you who feel like blue dots in a sea of red have commented how heartening it was to see a couple hundred people come out for the small rallies in your communities. You cannot underestimate the kind of long term impact that can have on organizing an opposition. Just in small towns alone, hundreds if not thousands of people across the country on Saturday realized they’re not alone and made connections within their communities. Similarly, don’t underestimate the power of a state coming forward and saying we will do whatever we can to protect our citizens from federal government agents who are abusing our people. And yeah, sometimes it won’t work. But we have to keep the big picture and the long game in mind here.

One area that provides a great deal of protection for federal agents is claiming immunity–they were acting within the scope of their job and therefore can’t be held accountable for their actions. But even that isn’t an absolute protection. Federal agents and officers are not categorically immune, they are only immune if their actions are necessary to carry out a lawful federal duty. A LAWFUL federal duty. And in acting out their lawful federal duty, the officer must act with reasonable care and prudence under the circumstances. If they act unreasonably, if they break the law, if they are acting outside of their official duties, they do not get immunity.

This goes hand in hand with the Supremacy clause, set forth in the constitution, which says that federal law trumps state law where there is a conflict. So if federal law says you can’t do something but the state law says you can, federal law is going to prevail. So if a state passed its own immigration law and it was more permissive than the federal law, and an ICE officer came in to enforce federal immigration laws, the state couldn’t say woah woah woah we have our own immigration laws here. That’s within the purview of the federal government and the federal laws win out. HOWEVER, contrapoint, the 10th Amendment. The 10th Amendment says that anything not explicitly listed as a power of the federal government is left to the power of the states. It’s where we get federalism, the idea that we have a federal government but each individual state also has sovereignty and jurisdiction over its own affairs. So unless the Constitution explicitly gives a power to the federal government, everything else is left to the states. That includes things like policing powers, internal commerce, the stuff local governments tend to be better suited to manage on the ground. So there’s a balancing act in the Supremacy Clause because it gives the federal government ultimate authority but only over the limited areas listed in the Constitution. This has been expanded over the centuries to include things like education, medical regulation, and more, because of federal funding, interstate commerce, etc. But for a long time “states rights” was the rallying cry of the right when they didn’t agree with liberal administrations. Now the tables have turned and it is the left calling for the states to exercise their rights and powers to reign in a belligerent administration.

But generally speaking when it comes to immigration enforcement and enforcing federal criminal laws, the feds necessarily have to enter into different states in order to do their work. So generally, federal courts have held that federal agents have immunity if “(1) the federal official was doing something authorized by federal law, and (2) the official’s actions were “necessary and proper” in fulfilling their federal duties.”

A case from 1890 called In Re Neagle is the main Supreme Court precedent we have on the issue. In it, the court held that “state law is displaced if it imposes burdens on a federal officer's attempts to protect federal interests or execute federal law, even if no federal statute specifically authorizes the federal official's conduct, as was the case here. Neagle established a two-prong test for this type of immunity from state criminal law: (1) Was the officer performing an act that federal law authorized him to perform? (2) Were his actions necessary and proper to fulfilling his federal duties? If the federal officer satisfies this test, he or she is immune from prosecution for violation of state law.” So in theory then even if an ICE officer kills someone, or assaults a US citizen, they get immunity if they pass that two prong test.

This is only in theory though because the Supreme Court has provided relatively little guidance on these analyses beyond In Re Neagle which again is from 1890, so it really depends on the judge and the state, though I’m sure the supreme court would LOVE a case to come before it so it could give Trump even more power. Because even if the lawsuit starts in state court and is being handled entirely by a state’s judiciary, if the federal agent claims they were acting within the scope of their duties, they can actually request the case be moved from state court over to federal court because their defense rests in federal law, specifically the supremacy clause immunity. So any situation where a state attempts to thwart the illegal actions of ICE within its own jurisdiction would likely eventually end up in the Supreme Court. This of course all hinges on whether the federal officer acted reasonably within their duties and under lawful orders. Is it reasonable to shoot tear gas into a person’s frog costume? To shoot a priest with a pepper ball at point blank range? To kneel on the neck of a 79 year old car wash owner, breaking his ribs, holding him for 2 days, and offering him zero medical attention? When you have the DHS denying allegations at every turn, that becomes at least partly a question of fact that the lower courts have to figure out, because the federal officer and every federal official will claim that the use of force was reasonable and it will be the word and weight of the federal government against the word of a few people they abused or wrongfully detained. Luckily bystanders have been filming, there is body cam footage, we have access to tools to help establish facts in a way that makes them harder to question–though AI is thwarting some of that–so continue to film the abuse you see for the public record and for court records. And in theory once the facts of the case are viewed and established in the lower courts, the Supreme Court has to take those facts as fact, the government can’t go to the Supreme Court and whine and say the lower court didn’t believe them. I mean they can but it’s pretty hard to get higher courts to undermine the findings of fact by a lower court, they are meant to honor them as fact and just analyze how the law applies to those facts. But as we’ve seen, the Supreme Court was fine with seeing the fact of racial profiling perpetrated by ICE officers and saying under the law that’s fine and dandy, so who knows. If given the opportunity, this Supreme Court could find that all those acts I listed were perfectly reasonable and necessary for the agents to perform their duties. Nevertheless, once again, I think states should be prosecuting as many of these cases as possible in order to assert their authority and rights against abuse by federal agents.

There are also arguments states could be making regarding the anti-commandeering principle, a Supreme Court precedent that holds that the federal government cannot commandeer states into the service of the government or into doing something that would normally be a state’s right to make decisions about. So for example, originally the affordable care act required states to expand Medicaid eligibility or face complete Medicaid cuts, which the Court found to be undue coercion from the federal government in violation of the anti-commandeering principle. The federal government cannot coerce a state into doing stuff that would normally be within the state’s own powers. This argument was successfully used before the US District Court in the Northern District of California earlier this year in a lawsuit filed by San Francisco against the Trump regime’s attempts to withhold federal funds from so-called sanctuary jurisdictions. The court in that case wrote quote “The 2025 Executive Orders’ directives to withhold or freeze federal funding to sanctuary jurisdictions also violate the Tenth Amendment because they impose coercive conditions intended to commandeer local officials into enforcing federal immigration practices and law.” This anti-commandeering argument is best for states to use in these types of larger issues where Trump is dangling funding over their head to try to force them to take action, especially when it comes to their own police powers, which are pretty well protected as part of states rights. To thwart the actions of individual officers and ICE as a whole, it is likely the route of arresting and charging ICE officers individually for state criminal offenses that would send a strong message that the state is watching and will not put up with illegal acts on its streets, even if perpetrated by federal officials. Why aren’t we seeing more of these lawsuits? Well, this gets messy, it takes up state resources that are often lacking, and there is no guarantee that it would be a winning strategy, that it would simply be written off as a political charade no matter how clearly an officer’s actions violate state criminal law. Not to mention the fact that people like Leticia James, the attorney general of New York who has attempted to hold Trump accountable over numerous offenses, has faced repeated, targeted backlash from the Trump regime. It would mean a concerted effort at all levels of state government by people willing to put their neck on the line to fight back. I’m not saying those people don’t exist, so I hope it becomes a growing trend, I’m just not seeing it at the level I would like to. So consider this my call to arms (for legal reasons I mean that metaphorically) for state prosecutors and attorneys general to aggressively investigate and prosecute the actions of federal agents in your states. Because ample evidence indicates that ICE agents are acting in ways that are unreasonable and against the law. Not only are they using excessive force and assaulting people in the process, their actions do not enforce any written or existing laws. There is no federal law that mandates the arrest and detention of US citizens who are not credibly accused of doing anything wrong. There is no federal law that mandates physical abuse and assault against unarmed civilians by ICE agents. They are not acting in ways that enforce federal laws. They are acting against the law and they should be held accountable as such.

But let’s go over specifically what DHS officers can and cannot do, because it’s important to know your rights. And when I say “DHS officers” that’s an umbrella term to refer to ICE officers, customs and border patrol, etc., all the arms of the gestapo controlled by DHS. Officers have a lot of leeway to stop you, search you, ask for your documents, and more when you are at a border crossing or an airport. They also have the right to stop you and ask your citizenship at a traffic stop. They are allowed to detain people without a warrant if they have reasonable suspicion that the person is violating immigration laws and if they believe that the person would escape if they took the time to get a warrant. Typically, even without a warrant, their arrests should be based on individualized suspicion that the person is violating immigration laws. But guidance from DHS has led to dragnet raids where they arrest first and then create the individualized suspicion later. That is not how the law works, and individuals getting erroneously caught up in those dragnets are suing as a result. And individual lawsuits are important, there are many nonprofit legal organizations doing great work representing individuals pro bono who have been assaulted or otherwise abused by DHS officers, but they are just a drop in the bucket, which is why the power of the full state needs to come out against illegal activities perpetrated by DHS officers. Ok, DHS officers can also arrest citizens if they are acting violently towards the officer or impeding their ability to do their job. DHS officers are required to identify themselves as agents as soon as it is practical and safe to do so during an arrest. They don’t have to give their names but they have to identify themselves as agents and of what agency. They are only allowed to refuse to identify themselves during emergency situations, which is rarely the case when they are pulling people into unmarked vehicles as they’re walking down the sidewalk in broad daylight. Again, DHS will deny, they’ll say the officers have seen increased violence and doxing against them, and then they provide zero evidence of said violence or doxing, and usually when sued by the people they abuse, their claims don’t hold up in court. So there is growing evidence that DHS officers are not acting within the confines of any federal laws. DHS officers are also still beholden to the laws of the state within which they are operating. Those laws include laws against assault and murder, anticorruption laws, and civil rights laws under state constitutions.

For example, according to that publication from the University of Wisconsin Law School I mentioned earlier, quote “Colorado and Maine both define “public servant” to include state and federal officials, so each state’s anticorruption laws explicitly cover federal corruption. These include statutes criminalizing bribery, improper gifts to public officials, public official misconduct, and the misuse of official information for private financial gain. Other states have broadly written anticorruption statutes that do not expressly refer to federal officials, but instead apply to anyone, which presumably includes federal actors. These include statutes criminalizing bribery of private or public employees, extortion, threats, and coercion. To date, state anticorruption laws do not appear to have been widely used to address federal corruption, but they are on the books as an option. And federal officials likely would not enjoy immunity from prosecution if their conduct does amount to corruption, given that corrupt conduct generally would not be a “necessary and proper” part of carrying out lawful federal duties.” Tom Homan and the bag of cash, anyone? Anti-corruption charges alone could bring down half this administration if states took steps to enforce their laws against federal actors. Add on to that the state criminal statutes and state constitution civil rights laws, and there are so many avenues that states can take to prosecute offenders at every level of the federal government.

These laws also apply to federal troops and to the National Guard. According to an article in the Military Times, not a publication I often cite to, quote “Troops who are ordered to do something illegal are put in a bind — so much so that some argue that troops themselves are harmed when given such orders. They are not trained in legal nuances, and they are conditioned to obey. Yet if they obey “manifestly unlawful” orders, they can be prosecuted. Some analysts fear that U.S. troops are ill-equipped to recognize this threshold.” However the authors of the article are researchers at the University of Massachusetts Amherst who recently did a study that found that 4 in 5 service members do understand the distinction between legal and illegal orders, the duty to disobey certain orders, and when they should do so.

The article goes on to say quote “U.S. service members take an oath to uphold the Constitution. In addition, under Article 92 of the Uniform Code of Military Justice and the U.S. Manual for Courts-Martial, service members must obey lawful orders and disobey unlawful orders. Unlawful orders are those that clearly violate the U.S. Constitution, international human rights standards or the Geneva Conventions.

Service members who follow an illegal order can be held liable and court-martialed or subject to prosecution by international tribunals. Following orders from a superior is no defense.

Our poll, fielded between June 13 and June 30, 2025, shows that service members understand these rules. Of the 818 active-duty troops we surveyed, just 9% stated that they would “obey any order.” Only 9% “didn’t know,” and only 2% had “no comment.””

The article says quote “But the open-ended answers pointed to another struggle troops face: Some no longer trust U.S. law as useful guidance.

Writing in their own words about how they would know an illegal order when they saw it, more troops emphasized international law as a standard of illegality than emphasized U.S. law.

Others implied that acts that are illegal under international law might become legal in the U.S.

“Trump will issue illegal orders,” wrote one respondent. “The new laws will allow it,” wrote another. A third wrote, “We are not required to obey such laws.”

Several emphasized the U.S. political situation directly in their remarks, stating they’d disobey “oppression or harming U.S. civilians that clearly goes against the Constitution” or an order for “use of the military to carry out deportations.””

Quote “Criminologist Eva Whitehead researched actual cases of troop disobedience of illegal orders and found that when some troops disobey — even indirectly — others can more easily find the courage to do the same.

Whitehead’s research showed that those who refuse to follow illegal or immoral orders are most effective when they stand up for their actions openly.

The initial results of our survey — coupled with a recent spike in calls to the GI Rights Hotline — suggest American men and women in uniform don’t want to obey unlawful orders.”

And as a reminder the Trump administration fired the lawyers in the military that would provide guidance to officers on the law and how to follow it, so they are operating based on limited legal knowledge, but the numbers are somewhat heartening that there is a large percentage of military personnel who take very seriously their duty to disobey unlawful orders. That, combined with the subdued reception that Trump and Hegseth received in that room full of high level military officials a few weeks ago does give me hope that our military personnel by and large have moral and ethical compasses at least when it comes to being turned against US civilians obviously I’m not talking about the numerous war crimes and crimes against humanity committed around the world by the US military let’s not get carried away.

And for an individual soldier to decide that an order is illegal, they likely face an uphill battle. According to the Memphis Commercial Appeal, reporting on deployment of troops there, quote “"Under the present deployments, the legality of the orders is dubious, but historically it’s not within the ken of any individual service members to make a decision," said John W. Hall, a professor of military history at the University of Wisconsin-Madison.

A lack of legal options hasn’t stopped U.S. soldiers from resisting orders in the past.

"The U.S. has had a democratic tradition when it comes to military service where, though you pay a price for dissent, when that occurs, it’s a warning to the political leadership that even the troops who are ordered to do these things will speak out," said David Cortright, a professor at the Notre Dame Kroc Institute for International Peace Studies.

Cortright participated in that kind of resistance himself after being drafted to serve in the Vietnam War. Stationed in New York, he participated in protests in Manhattan when he was off duty and signed a petition against the war.

His efforts to resist got him reassigned to a base in Texas, where "all we did was clean the barracks floor continuously for months," said Cortright.

"If you join in protests, you have to know or expect you could face punishment, commanders never like it when their soldiers disagree with the mission. But back with Vietnam, we didn’t care," he said. "The thinking soldier is a real thing, thank goodness for our society, we’re not just robots."”

And it may be that with increased deployment on the ground in the US, the National Guard at least will get ample opportunity to exercise that judgment. And the Supreme Court seems poised to increase those opportunities tenfold. The Court just agreed to hear Trump v. Illinois. This is a request off their shadow docket, so it is not a full oral argument type case but instead an “emergency” order they have been asked by the Trump regime to make a quick ruling on. The case comes out of the fight over troop deployment in Chicago. Two separate federal courts have already ruled that Trump doesn’t have the authority to federalize the national guard against the wishes of the state leadership. In this case, the federal government on behalf of Trump is claiming that actually Trump’s decision whether to deploy troops on US soil is exclusively the purview of the President, so much so that the courts actually aren’t allowed to review it. He has sole authority. Lower courts have blocked his attempts to send the troops to Chicago, in part because the government keeps citing to protests at an ICE facility just outside Chicago, claiming that 10 USC section 12406, this should sound familiar we’ve talked about it in the past–it’s not the insurrection act it’s the law they’re using as a proxy for it, they claim that law gives Trump authority to deploy the troops to repel an invasion, suppress a rebellion, or execute the laws of the United States. The protests outside the ICE facility in question, according to the lower courts, never amassed a group of more than 200 people, and usually there’s about 50 there on any given day. So the regime is asking the Supreme Court to believe that 50 protestors outside an ICE facility are so impeding the entire federal government’s ability to do its job on the ground there that their only option is to send in the troops. The lower courts haven’t bought it.

Not only are they asking the Supreme Court to believe something incredibly asinine, but they’re also asking the court to undermine its own power. Because in finding for Trump they will have to at least in part agree with the regime’s contention that the judiciary has no say over whether or not Trump will use the troops on US soil. This case puts the court in the position to undermine the central tenet of our constitutional order, the checks and balances between three co-equal branches of government, even further than it already has. This would just be a question of whether or not to uphold the temporary injunction on the case as it continues through the lower courts, and typically the Supreme Court will uphold an injunction from a lower court in this scenario because there is likelihood of extreme damage to rights and of abuse such that they really shouldn’t upend the entire constitutional order off the shadow docket without full oral argument, briefing, and an extensive written opinion. That’s what SHOULD happen. What WILL happen is hard to call, as they’ve proven incredibly willing to upend established norms in Trump’s favor already, and they have especially been eager to do so with no written opinion using cases from its shadow docket. But again this case poses an existential question for the court, because it is asking the court to cut off its own legs in order to appease King Trump. Whether or not it decides to do so could have far reaching implications. It could easily avoid the question by just saying that the stay will stand for now and then answering the question once the case moves through the system and they are able to hear it properly with oral argument and everything, and then they might decide to kneecap themselves. As Ian Millhiser points out writing for Vox, quote “Needless to say, the stakes in the Illinois case are breathtaking. If Trump is allowed to use military personnel to suppress a tiny group of protesters and vandals, then it is unlikely that this Court will place any meaningful limits whatsoever on his ability to deploy the US military against Americans.” Whether it's on the streets of sanctuary cities or at ballot boxes to intimidate voters during midterms, this case could unleash the full force of the military on US citizens at Trump’s whim with zero guardrails in place. I will be keeping my eye on Trump v. Illinois and all the other fuckery happening in this administration and continue to report on it for you here every week.

If you have a question you’d like me to answer in a future video, comment QUESTION in all caps along with your question so that I can see it from amongst the trolls.

Thank you to my multi-platinum patrons Marc, Sarah Shelby, Art, David, L’etranger (Lukus), Thomas Johnson, and Tay. Your generosity makes this channel what it is, so thank you!

And if you liked this episode, you’ll like the one from Wednesday about the Nuremberg trials, international law, and how we hold this regime accountable.

Leeja Miller
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