ROMAN MARS: This is the 99% Invisible Breakdown of the Constitution. I’m Roman Mars.
ELIZABETH JOH: And I’m Elizabeth Joh.
ROMAN MARS: Today, we are discussing Article IV, which talks about the relationship between the states and between the states and the federal government. We’re also skipping ahead a bit and adding the Tenth Amendment to this conversation because that also talks about the states.
Our guest for this episode is California Attorney General Rob Bonta. State Attorneys General provide legal counsel to their state’s government, oversee state prosecutions, and represent the public interest in a variety of cases. They also have the responsibility of protecting their state’s citizens from federal overreach. What constitutes an overreach can vary widely depending on the state’s political leaning and who’s in control of the federal government. During the Obama and Biden administrations, red states sued the federal governments over issues like Medicaid expansion and environmental regulations. Now, blue states, like California, have sued the Trump administration dozens of times for things like withholding federal funding and deploying the National Guard without consent of the state. Attorney General Bonta talks about some of these lawsuits and why he believes the Constitution is on his side.
But first, Elizabeth takes us through what we need to know about Article IV and the Tenth Amendment.
ELIZABETH JOH: Okay, so unlike Articles I, II, and III, which we’ve already talked about, they set up the federal government and get a lot of attention. Article IV does not get too much love; most people have no idea what it’s about. It’s not thought of too often, but it is an important source of powers and protections for the states. So when we talk about the relationship between the federal and that of the states, we refer to that structure as federalism. And we’ve talked about federalism lots of times. But maybe we could really call that “vertical federalism.”
ROMAN MARS: [CHUCKLES] Okay. What do you mean by that?
ELIZABETH JOH: Well, that’s because it’s the federal government’s sort of how it relates to each one of the 50 states. But the states have relationships with one another. And Sections 1 and 2 of Article IV are actually about the relationships among the states. And we can talk about that as “horizontal federalism.” So why don’t we start with Section 1? Roman, why don’t you read Section 1?
ROMAN MARS: Okay. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
ELIZABETH JOH: All right, that’s a mouthful. So, Section 1 is also known as the Full Faith and Credit Clause. And the Full Faith and Credit Clause embodies the idea that we need some kind of interstate cooperation in our system for the system to work. And the basic idea with the Full Faith and Credit Clause is that the states are supposed to respect the laws, records, and court decisions of other states. That’s the general idea.
Well, what it means in the specifics, however, is that if, for instance, you have a state court issue a judgment in your favor–let’s say you win a case and the court awards you damages or money–you can ask a court in another state to enforce or respect that judgment. Let’s say the person who owes you money now has left the state and taken their assets with them. The defendant doesn’t get another chance to redo the case just because the dispute has essentially traveled to another state. That’s really what the clause is about. Most of the time, though, the Full Faith and Credit Clause is mostly overlooked. It doesn’t feel like a hot topic, right?
ROMAN MARS: Yeah, well, I think it’s kind of metabolized into our way of being. Like, I don’t think that I’d have different rights in different states necessarily all that much. I just think of the United States as one big thing, which is kind of how this works in practice.
ELIZABETH JOH: That’s the way it’s supposed to work in theory. But there are a few areas where there have been some important questions. And actually one of them is marriage. So, in 2015, the Supreme Court decided the case of Obergefell versus Hodges, and that’s the case in which the Supreme Court recognized a constitutionally protected right to same-sex marriage, right? And so there had been a longstanding constitutionally protected right to marriage before the Obergefell case. But it wasn’t until 2015 that the Supreme Court formally recognized that this right also included the LGBTQ community. So, that raises the question: Well, what was life like before Obergefell?
ROMAN MARS: It’s hard to remember.
ELIZABETH JOH: Yeah, it’s hard to remember. But the answer is that whether or not any state recognized same-sex marriages, whether the marriage occurred within the state or without of the state, was often up to question and left up to individual states. So, if you recall these before times, some states recognized same-sex marriage. But other states didn’t. And in fact, they went further and either passed laws or changed even their state constitutions to say that marriage was only between a man and a woman within that state. But of course, at the same time, there was a growing movement for marriage equality to recognize that same-sex couples had rights to marriage. So what if you were a part of a same- sex couple, lawfully married in one state, but then moved to a state where same-sex marriage was not legal, right? So prior to 2015, the answer wasn’t really clear at all because, on the one hand, it’s actually not clear that it’s answered by the Full Faith and Credit Clause for complicated reasons. But let me just put it this way. On the one hand, a marriage isn’t really a judgment. That’s the language of the clause itself. A marriage is really a civil contract between two people, right? The Court doesn’t judge that you’re married. No court does that. And then second, courts allowed what’s called public policy exception to the Full Faith and Credit Clause. So even if we agreed that a marriage was a judgment–which is a question–it really could be the case that a state court would say, “Well, it’s against the public policy of our state to recognize same-sex marriage.” And then the court might decline to do so. And in 1996, Congress went even further and passed what was called the Defense of Marriage Act or DOMA, right? I don’t know if you remember that.
ROMAN MARS: I do remember that.
ELIZABETH JOH: And then one of the significant things that DOMA did was to allow states to refuse to recognize same-sex marriages, even if these marriages were finalized in states where that marriage was actually legal.
ROMAN MARS: Okay, so how could Congress do that?
ELIZABETH JOH: Well, because of the Full Faith and Credit Clause because the clause itself doesn’t just say states have to respect each other’s judgments. It happens to give Congress a source of lawmaking power. It’s called the Effects Clause, right? So, the Full Faith and Credit Clause allows Congress to prescribe the manner in which such acts, recordings, and proceedings shall be proved and the effect thereof. So it’s actually not just saying, “Hey, states, you have to respect other states’ judgments.” It’s actually a source of federal legislative authority. So, with DOMA, it becomes legal for states to refuse to recognize otherwise legal same-sex marriages. And while many states legalized discrimination against same-sex marriages, other states also began to recognize rights. So Massachusetts became the first state to legalize same-sex marriage in 2004, and that’s 11 years before the Obergefell decision in the Supreme Court. And many states followed, but many states did not. And then the Supreme Court did decide the case in 2015. There the Supreme Court said that same-sex couples have a fundamental right to marry in all states.
ROMAN MARS: So what is the effect of Obergefell, and why should we care about this anymore now that that’s sort of settled?
ELIZABETH JOH: Okay, well, on the one hand, the Supreme Court case does basically invalidate every state law that refused to recognize same-sex marriage. After the Obergefell decision, every state has to recognize the right to same-sex marriage because of the Supreme Court’s decision. It’s constitutionalized this particular right to marry. And Obergefell also invalidates DOMA, the federal law. That law also is no longer a good law because why? It interferes with a constitutionally protected right to marry. But instead of just saying, “Well, it’s interesting background material, who cares?” Well, in 2022, the Supreme Court decided to unrecognize the constitutionally protected right to an abortion in Dobbs versus Jackson Women’s Health Organization. And that case overturned the right that was first recognized in Roe in 1973. And even though abortion might seem to be pretty distinct from marriage, and of course it is a different topic, it was not a different topic for Justice Thomas. Justice Thomas joined the majority opinion in the Dobbs case, but he also wrote a separate opinion because he had more to say. And essentially his more to say was: “Look, if we’re overturning the right to an abortion, which I think is a good idea, we might also reconsider some rights, based on the same interpretation that the Court issues today.” And he calls out specifically Obergefell versus Hodges, like, “Maybe we should think about overturning that case.” So his opinion set off alarms, as you can imagine. And so the idea here is: “Look, if Justice Thomas can just convince four other Justices that he’s right, then presumably that right might be in question.”
ROMAN MARS: So you said alarm bells went off, but did anything actually come of that?
ELIZABETH JOH: Well, in 2022–this was the Biden administration–President Biden signed the Respect for Marriage Act, or RFMA.
ROMAN MARS: Okay. So what does RFMA do?
ELIZABETH JOH: So RFMA formally repeals the Defense of Marriage Act from 1996, right? But it also goes further. One section of RFMA–this is the federal law–requires all states to give what the law calls “full faith and credit to marriages, including same-sex marriages,” which it identifies specifically, “if they are lawfully performed within a state.” So RFMA doesn’t require a state to license same-sex marriages. In other words, it doesn’t require a state that hadn’t done that before to do it. But as long as there is one state in the United States that does license same-sex marriages, the effect of RFMA–this federal law–means that those marriages should be respected in the other 49. And remember, marriage as a legal idea is really important. Of course, it’s important symbolically, but it carries all kinds of effects of inheritance, the ability to visit your spouse while they’re ill, all kinds of things, the rights over children, things like that. It’s extremely important right? And keep in mind that RFMA is essentially responding to this threat from one Justice on the Court because of that.
ROMAN MARS: So is the reason why Congress can pass this law still related to the Effect Clause–all that sort of stuff? Is that part of it?
ELIZABETH JOH: Exactly right. It’s the same reason as DOMA. Congress is relying on the Effects Clause, the power given to it, under that portion of Article IV. So, right now, RFMA doesn’t mean too much because Obergefell is the law of the land, right? But if for some reason–let’s hope not–the Supreme Court were to overturn that decision from 2015, I would expect that we’d see legal fights about the meaning of RFMA and whether Congress actually has the authority to have passed it in the first place. So that’s kind of a sneaky way that we might see the Full Faith and Credit Clause come up in some future instance. And that is why Full Faith and Credit is pretty interesting.
ROMAN MARS: Yeah, it’s also notable that they use that term in the law, “full faith and credit,” to harken back to this. It’s saying, “If you’re wondering what the constitutional basis for this is, just follow the words.”
ELIZABETH JOH: Yeah, that’s exactly right. And part of that is because it’s pretty clear as a concept that, if you have something–and again, assuming that marriage is something that is one of the things called out by the Full Faith and Credit Clause–that is protected by that clause, Congress should be able to say, “Hey, states, you recognize it in one state, then every state has to recognize the same thing.” You’ll notice what RFMA is not doing. It is not saying there is a federally protected right to same-sex marriage because it’s not super clear that Congress has the ability to do that. And presumably Congress and President Biden just didn’t really want to go there. So they kind of took a compromise measure here with Full Faith and Credit.
ROMAN MARS: Got it. Makes sense. Interesting!
ELIZABETH JOH: All right. So next, Section 2 of Article IV. Section 2 is a collection of different state issues. So the first clause tells us that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” So, Roman, think of this as an anti-discrimination principle. The clause prevents states from discriminating against citizens from other states in favor of their own. So that’s true for many but not all situations. Some of the most important legal cases here have focused on things like state residency requirements–that you have to live in a state for a certain time to receive some kind of benefit. And states usually can’t interfere with what are considered fundamental rights that are recognized under the privileges and immunities clause. A good example is that the Supreme Court has said that your right to pursue an occupation is something that’s protected by this clause.
But states do have some latitude. They can discriminate against out-of-staters for important reasons. That’s why you can’t go to another state and just say, “Hey, I have the right to vote in your election.” You can’t because the state has a good reason to keep voters only to the people who are within the state.
ROMAN MARS: Wow.
ELIZABETH JOH: So this part of Article IV isn’t too much in dispute. It’s not very controversial.
Next, the second clause here, which says, “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” This is known as the Extradition Clause, and it applies when a person is accused of crime in one state and then flees to another. So the Extradition Clause recognizes that the governor of one state can demand from the other state that the person be forcibly sent back. Again, it’s not too controversial. But again, this shows us another aspect in which Article IV is about requiring, encouraging, and making sure that the states play nice with one another because that’s how the system should be run, instead of the states fighting against each other, discriminating against each others citizens, or just not cooperating in some important things like criminal justice.
ROMAN MARS: That makes sense.
ELIZABETH JOH: So, third clause–and that is the Fugitive Slave Clause. In a sense, we don’t really need to talk about this clause, which allowed a slave owner to cross state lines, seize the fugitive enslaved person, go to court to prove ownership, and then receive legal authorization to go back to their home state with the enslaved person. You know, the entire aspect of this clause is irrelevant because of the 13th Amendment, which abolishes slavery. But I thought we’d pause here for a moment just to note that this is just another instance in which our foundational current document that organizes our government has a reference to slavery. It’s just one more. And yet it doesn’t even do so directly, right? The Fugitive Slave Clause doesn’t use the word “slave.” It refers to a “Person held to Service or Labour in one State … escaping into another.” Although, at the time, everyone understood that this reference was to enslaved people and enslaved people only. So here you have this kind of historical marker in the Constitution that has no legal effect anymore, but it reminds us of kind of the very flawed origins of the document itself.
ROMAN MARS: Right. Right. And presumably it was put here explicitly because certain slave-owning states just required it for it to be part of the Constitution for them to sign onto it.
ELIZABETH JOH: Right, and again, I mean, that’s another interesting thing, too, that just reflects the fact that the document itself is not an idealized one. It’s the result of political compromise. So, I mean, this is sort of the baked-in part of the document. We can’t escape the fact that it has this very, again, flawed origin here.
ROMAN MARS: Yeah. Yeah. But hopefully, in some ways, we escaped it by having the 13th Amendment. So, that’s what amendments are for.
ELIZABETH JOH: That’s right. Let’s move right along to Section 3. And Section 3 of Article IV has two parts The first part includes the Admissions Clause, and that is how we allow or admit new states to the union. So, Roman, you want to read that clause? It’s sort of interesting.
ROMAN MARS: Sure. “New States may be admitted by the Congress into this Union; but no new State shall be formed of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
ELIZABETH JOH: All right, that’s a mouthful. But essentially it’s how do new states become part of the United States? So this part formally allows Congress to recognize new states to become part of the country with some limitations, as the text you just read points out. So if a state is formed from a new state, you need the consent of the affected state, like when Kentucky became a state by taking a part of Virginia in 1792. So, that part seems to make sense. You don’t want to chop off a part of the state without the state agreeing to do it.
ROMAN MARS: That’s right.
ELIZABETH JOH: And while it’s not mentioned in section three itself, the Supreme Court has interpreted the Admissions Clause to have what it calls an Equal Footing Doctrine. And so the idea is a pretty simple one–that a new state, if it’s going to be part of the United States and is admitted to the United States by Congress, it has to be admitted on equal terms as the existing ones. You don’t have, like, a secondary status state.
ROMAN MARS: Right, you’re not going through a probationary period.
ELIZABETH JOH: You know, the Court has said, “It’s not in there, but we assume that that’s meant in the structure of the Admissions Clause.
ROMAN MARS: I like it.
ELIZABETH JOH: And the second part of Section 3 has what’s called the Property Clause. Congress has the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Now, this part gives Congress broad authority to take all kinds of actions over the land the federal government possesses. And the clause also mentions territories, which is interesting too because many of our states have become states after having been a territory first, like Alaska or Hawaii. And even though the Admissions Clause doesn’t require it, Congress has sometimes required a proposed state to meet some conditions before it’s allowed to become a state. Do you know about the condition that Utah had to agree to?
ROMAN MARS: Uh, no bigamy?
ELIZABETH JOH: Well, no polygamy, right? So the Enabling Act by Congress that allowed Utah to become a state actually required the state to ban polygamy. And what’s even more interesting is that Utah is not allowed by the terms of its constitution to allow polygamy unless not just Utah, but Congress agreed. In other words, Congress was so worried that the state might just go crazy with polygamy, they were like, “You can’t even change your state constitution unless we let you on this subject.” So Congress can definitely do that. If there’s something that they don’t like about a proposed state, they can say, “You’re not allowed to be a member of the club unless you do this particular thing.”
ROMAN MARS: Yeah, okay.
ELIZABETH JOH: So, hypothetically, if we were to do something like, you know, annex Greenland–not endorsing the idea–presumably the path would be Congress would give it the status of an American territory first, which gives it free reign to regulate the territory under the property clause. And then maybe it would become a state eventually. And if it did so, it could certainly require Greenland to enter into some kind of agreement that they would not do something or do something affirmatively in order to become a state. Although we certainly have territories, like Puerto Rico, of course, that have remained a territory for a very long time, even though there are certainly lots of folks who would like to see Puerto Rico become the 51st state. So this is the part of the Constitution that kind of sets the ground rules for when a territory or an acquired piece of land can join the United States.
ROMAN MARS: But it doesn’t set that many ground rules. It just says that they can make the ground rules, but the rules could change depending on what state you’re talking about.
ELIZABETH JOH: Yeah, essentially, it’s kind of left up to Congress to make the political decisions about what to do. And I can’t even think of what would be objectionable in Greenland’s culture that Congress might impose conditions–but yeah, nothing that rises to the level of the Utah issue.
ROMAN MARS: Right. I mean, in the case of Puerto Rico, there’s lots of complicated things there and there’s sort of, like, a class of foreign and domestic sense that Puerto Rico has. And a lot of that has to do with just, yeah, where you are politically at this moment. Does it seem like it’s going to favor one political party or another? And that sort of seems to be the source of it, at least in the United States.
ELIZABETH JOH: Yeah, I mean, it is interesting though because the Constitution does contemplate that the United States can grow and grow and grow. There’s no limit on it. There’s no, like, “and this is the last state you can have.” So it’s kind of, in a way, like an expansionist constitution, right? It can get as big as you want.
ROMAN MARS: That is interesting because it’s also… That’s somewhat antithetical to our notion of ourselves–that we weren’t especially expansionists or at least colonialists. That’s how we viewed ourselves, even though it was never really part of the true functioning of the United States. But I think that’s super interesting.
ELIZABETH JOH: Yeah. I wonder how things will go in the next couple of years or so, but we’ll see.
ROMAN MARS: More on Article IV and our discussion of the Tenth Amendment after the break.
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ELIZABETH JOH: The last section of Article IV contains what’s called the Guarantee Clause. Do you want to read the Guarantee Clause?
ROMAN MARS: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
ELIZABETH JOH: So what does it mean that the federal government is supposed to guarantee that every state has a Republican form of government? That is kind of hard to say because there’s really hardly any case law on it. Part of the reason why is because generally the courts have said the guarantee clause isn’t something for courts to get involved in based on what’s called the Political Question Doctrine. This is really a political issue that the political branches of the federal governments should get involved in.
ROMAN MARS: But presumably, what it’s there for is to say the United States shouldn’t admit new states that have totalitarian or authoritative governments, right?
ELIZABETH JOH: Right. So, I mean, I think that’s pretty clear. The federal government has an obligation, under this clause, to prevent any state from becoming a monarchy, let’s say, or a dictatorship. You know, it’s an obligation to make sure that doesn’t happen. And generally speaking, I think we can all agree that a Republican form of government means that the people govern through their elected officials. But that’s a pretty broad statement. So, I think what’s not clear and maybe what we’ll never have a really definitive answer on is, like, is there a specific form of Republican government that is constitutionally required? So, for instance, how far could a state go in restricting who’s allowed to vote within the state? At some point, would that be no longer a Republican form of government? After all, if we’re going to go back to the founding, the founders were perfectly comfortable restricting the right to vote to themselves and nobody else. So that’s kind of a question left up in the air, right? So maybe the Republican form of government guarantee is a little bit meaningless in the sense that it doesn’t provide strong protections against attacks on voting rights. And maybe the threat of having totalitarian state government is pretty remote. But it’s a pretty broad set of outlines about what is a guarantee of a Republican form of government.
And then there is the Protection Clause of Article IV. The federal government “shall protect each of them,” the states, “against Invasion.” So this is pretty interesting because this part of Article IV requires–that’s the “shall”–the federal government to protect each state from invasion and from domestic violence if the state asks for it. So the Protection Clause actually works together with another part of the Constitution, which is found in Article I. That’s the Invasion Clause. In the Invasion Clause of Article I, the states are not actually allowed to act in their own defense unless there’s a real emergency–unless they are, as the Constitution says, actually invaded. So the Constitution sets up a scheme where the federal government is actually the one responsible for the collective security of the states. So, this is the part where you’re really supposed to ask the federal for help, or the federal is supposed to help you, the states. Not a commonly used doctrine, unless you are Texas. So–I don’t know if you remember–in 2023, Texas thought it would be a good idea to install a 1,000-feet system of buoys along the Rio Grande River. These were gigantic.
ROMAN MARS: I do not recall that at all.
ELIZABETH JOH: Well, this happened. This was a giant buoy line. They were connected by heavy chains. And the buoys themselves were, like, four feet across, so, so large that you couldn’t kind of climb over them. And essentially, this is to prevent people from crossing into the United States by swimming across the river. It’s mostly symbolic because it was a thousand feet and the Texas-Mexico borders 1,200 miles or something like that. So it was only covering a small portion.
ROMAN MARS: So why did Texas think it could do this?
ELIZABETH JOH: Well, Governor Abbott relied in part on Article IV’s protection clause–that the federal government had a responsibility to protect the state from invasion and the federal government wasn’t fulfilling its obligations. This is during the Biden administration. Of course, there’s a huge problem with Abbott’s argument. Texas isn’t actually being invaded by anybody. As soon as Texas implemented this barrier of floating buoys, the federal government actually sued Texas and federal court over this. But what happened actually is that the Biden administration did not actually engage with the constitutional argument. And instead they said that Texas was violating federal law about river control–navigable waters. And the case is still ongoing. I think you can kind of imagine why they didn’t want to engage with the constitutional argument.
ROMAN MARS: Yeah.
ELIZABETH JOH: I mean, they did not want this to be answered in any way by the Supreme Court. You know, the possibility that a majority on the Court might say something like, “Well, actually, maybe Texas can defend itself…” Do you really want to live in a world where each state gets to decide that they’re invaded and engage in some kind of self defensive acts?
ROMAN MARS: I wish we had some definitions of “invasion” because it’s used so much and it’s also invoked so much in political arguments, I think, quite knowingly because it’s invoked a lot as the thing that causes an emergency to happen, an invasion of some kind. It causes something to change.
ELIZABETH JOH: Yeah, it’s sort of a free-floating metaphor for terrorizing people. And then there is Trump 2.0, right? And it turns out that President Trump has used a kind of novel reading of Article IV. On January 20th of 2025, President Trump issued a proclamation called Guaranteeing The States Protection Against Invasion. And in that proclamation, Trump declared the suspension of what the proclamation calls “aliens engaged in the invasion across the southern border.” What’s the rationale here? Well, part of it is that Trump declared that the federal government had to take steps to fulfill its obligations under Article IV’s protection clause.
So, you can see how a lot of this is getting politicized in ways that I think is… It’s going to be hard to imagine how we’d have legal answers to this because, again, so much of this seems to be a political determination. If this is really war-like in some way, even though it doesn’t seem like it, it’s a sort of determination that courts are reluctant to say, “This is correct. This is a correct determination of invasion.” At least in the legitimate foreign policy arena, courts tend not to second guess what the president of the United States does. So, it would really be up to a court to kind of step in and say, “We’re going to do something totally different and decide, no, this is not an invasion.”
ROMAN MARS: Oh, wow. Okay. I can see why people want to avoid having this fight, even people who disagree with any of those protections.
ELIZABETH JOH: Yeah, that’s why that case still pending over the buoys is a more dry navigable rivers argument.
ROMAN MARS: Yeah, I would not want to leave this decision up to this Supreme Court at all.
ELIZABETH JOH: Right. And so that’s Article IV. And I thought today we’d also connect this to another aspect of the Constitution, and that’s the Tenth Amendment because the Tenth Amendment today is a very important limitation on the federal government and what it can do to the states. So, here’s what it says.
ROMAN MARS: Tenth Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
ELIZABETH JOH: Sounds like it just describes something about the states. I think any smart high school student would say, “Well, that doesn’t do anything, right?” But the Supreme Court has actually interpreted the Tenth Amendment to impose a limit on the federal government. And the Supreme Court has changed its interpretation of the Tenth Amendment over time. But since the 1990s, it’s very clear that the states can rely on the Tenth Amendment to argue that the federal government has violated a state’s rights of sovereignty. So here the Supreme Court isn’t actually relying on the text of the Tenth Amendment because it really couldn’t, but more that the Tenth Amendment embodies a particular idea of federalism and that the Supreme Court interprets that idea as a limit on federal power.
ROMAN MARS: So what does all that mean? I find that a little bit confusing.
ELIZABETH JOH: Okay, so the primary way the Court has interpreted the Tenth Amendment–again, not because the text says so, but because the Supreme Court says this stands in for a certain idea of federalism–is what the Court has called the anti-commandeering doctrine. And again, that word is not in the Tenth Amendment, but it’s how the Supreme Court has interpreted the Tenth Amendment. And so the idea of anti-commandeering is like this. The federal government can’t commandeer or order–that’s what commandeering means–the states to enact a federal regulatory program. And it can’t force state officials to enforce federal laws, right? So the idea is the federal government can’t tell the states, “Look, we have these things we want to do, and we want you to pass laws or regulations the way we want you to.” Nor can the federal governments tell state and local officials, “We don’t have the resources for our own officials to enforce federal law, you have to do it.” And so since the 1990s, the Supreme Court’s made it absolutely clear that this kind of action is unconstitutional. Why? Because this would upset the balance of power that the Supreme Court sees between the federal government and the governments of the states. And they see that embodied in the Tenth Amendment. Really the Tenth Amendment is kind of, like, standing in for this idea.
ROMAN MARS: Yeah. Yeah.
ELIZABETH JOH: So that’s pretty clear. So really what it’s telling Congress is there are certain things you can do, like you can regulate commerce, moving across state lines… You can tell persons, private entities, to do things, to behave in certain ways. But you can’t tell the states to do things in ways that are treating them like they’re your servants, essentially, right? That’s what the anti-commandeering clause means. And this idea has also been extended to the spending power, too. The federal government can certainly offer financial incentives to the states under Congress’ spending power, which we find in Article I, on the condition that the states do what the federal government wants. Now, it might seem, Roman, like this is kind of similar to commandeering, right? Like, why can’t– We want you to do something, here’s some money. But the idea under federal spending authority is, theoretically, states have a choice.
ROMAN MARS: They can say no.
ELIZABETH JOH: Yeah. They can say no. “We don’t want to do this. We don’t feel like listening to you, federal government.” And because they have a choice, it doesn’t raise the same problem. Except in some cases, the Supreme Court has said that if the choice is not a true choice–in other words, it’s really deemed coercive–the spending power also can go too far in a way that is similar to the anti-commandeering principle because you really are forcing the states in a that they don’t want to behave. And that’s essentially why, in 2012, the Supreme Court’s decision upholding Obamacare–the Affordable Care Act–one portion of it was one in which the Supreme Court struck down the way that the ACA expanded Medicaid because it was offering the states money to expand Medicaid. But if they didn’t decide to expand it, they would lose all of their current funding as well. And the Court said, “That’s not a true choice. You’re really forcing them to do things that they don’t want to do.”
ROMAN MARS: Okay. And that’s why when that decision came out in the very beginning, when people read it quickly the first time, they thought that the ACA had been struck down. But it turned out that it was another part of it where it did have the power to it that upheld it.
ELIZABETH JOH: And then that’s why the ACA has been alive ever since. The one portion of it was struck down, but the vast majority of the ACA stood after the case.
ROMAN MARS: And this is where we get the phrase in one of the opinions that “you can’t have a gun to the head.” That’s the thing?
ELIZABETH JOH: The Supreme Court chooses this pretty violent metaphor of saying, “Giving or offering money on the condition of is kind of like putting the gun to the head of the states,” which is, number one, weird because treating states as if they’re people and that they have some independent authority or, like, control… It’s actually our representatives. We’ve made choices. A lot of states didn’t mind the Medicaid expansion. But in a way, what you point out is funny because the Supreme Court has said that the anti-commandeering principle, which is that the federal government can’t treat the states in particular ways, applies even if the states say… Let’s say the states want to participate in a regulatory program and they say, “Sure, regulate us this way,” and the federal government does it, the Supreme Court has made it very clear, the states can’t even consent to it. The states can even get together and say, “Oh, please commandeer us.” The court says, “Federalism is so important, it doesn’t matter if nobody wants it. We are here to uphold it.” So it’s not that some goals are good and some are bad. It’s simply telling Congress, “You cannot do it in this way.”
ROMAN MARS: I admire that sort of ideological consistency, honestly.
ELIZABETH JOH: Sure.
ROMAN MARS: No, I mean, just, like, a little bit. Amongst all this sort of floating on the sea of all this argument and stuff and it seems like things just break politically, it’s kind of nice to know that, even if everyone is agreeing to the coercion and the commandeering, they’re just like, “No, this is not how we do things. We do things differently.” I’m kind of down with that.
ELIZABETH JOH: Well, for sure, then you’re agreeing with the majority, which the Court has said repeatedly.
ROMAN MARS: It doesn’t happen a lot, but every once in a while.
ELIZABETH JOH: Yeah, in a way, it does make sense to have that consistency because we see the Tenth Amendment’s anti-commandeering principle; it’s not a blue state weapon nor a red state weapon. It is an argument that states make against the federal government, right? So there’s another less commonly discussed aspect of the Tenth Amendment, and it’s called equal sovereignty doctrine. Again, it’s not in there.
ROMAN MARS: Yeah, clearly! None of those words are there.
ELIZABETH JOH: None of those words are there. But the Court has recognized this idea. And the idea of equal sovereignty is that Congress can’t pass laws that treat states unequally, or at least probably they can’t do so unless they have a really, really, good reason.
ROMAN MARS: What is one of those good reasons?
ELIZABETH JOH: So, in Shelby County versus Holder, in 2013, the Supreme Court struck down parts of the Voting Rights Act. And part of what was disputed were certain identifications. Like, if you’re a jurisdiction with a history of racial discrimination, you had a certain formula that applied to you. And that formula meant that these jurisdictions had to obtain what the law called “pre-clearance” from the Justice Department before changing any voting procedures. And part of the reason the Supreme Court struck down these provisions of the VRA–they said that it was a “departure from the fundamental principle of equal sovereignty.” So that’s a big voting rights case, of course. But it’s sort of unclear what that would mean outside of the voting rights context. But I think, in Trump’s second term, I would expect, with more and more threats against some states and not others, you’ll see some states with Democratic governors invoking this idea that we are being punished because we’re not going along with Trump’s agenda. So, it will certainly be used, the Tenth Amendment, generally, and perhaps the equal sovereignty doctrine, in particular, as some kind of constitutional shield as Trump tries to force the states to do his bidding the second time.
ROMAN MARS: Yeah, yeah. And in the past, this has been used because the states were bad actors in this case or these counties were doing racist things to stop people from voting. And therefore, the long history of that has made it so that you have to check with us if you change anything. But that’s not the case when it comes to however people think these states are misbehaving today when it comes to immigration.
ELIZABETH JOH: Yeah. And so it really just shows you how much all of these doctrines, in one era, look like a bad idea can sometimes be a good idea. A lot of this is contextual. It definitely makes the process of governance really messy, right? I mean, when states get to object in all of those different ways… You know, if we want a sort of national system where you have uniform laws… In some ways, the Court’s response to this–because they’ve interpreted the Tenth Amendment in all these different ways–they’re saying, “Efficiency is not the goal here. The goal is to make sure that the different parts have their kind of respect that the Constitution accords them.”
ROMAN MARS: Okay. Hey, I find myself feeling more or less into state’s rights, depending on the subject, to tell you the truth. It’s fair.
ELIZABETH JOH: We’ve definitely seen those font lines already.
ROMAN MARS: So that’s all of Article IV–and a little bit of the Tenth Amendment, which relates to it. Cool. This is awesome. Thank you so much.
ELIZABETH JOH: Thanks, Roman.
ROMAN MARS: When we come back, California Attorney General Rob Bonta talks about the powers granted to the states under the Constitution and how California is using the courts to push back against the Trump administration.
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ROMAN MARS: And now our conversation with California Attorney General Rob Bonta. Since Trump took office in January of last year, California has sued the administration more than 50 times, about a rate of one lawsuit a week. Courts have found in the state’s favor about 80% of the time, although many of those decisions are from lower courts. Attorney General Bonta wasn’t always so concerned with the federal government. He took over the job in 2021 when then AG Xavier Becerra left to join the Biden administration. Over those four years, Bonta’s office was mostly focused on issues like consumer protection and upholding Biden’s environmental regulations. Now his relationship with federal government is decidedly adversarial. We start with how the job has changed for him before Trump was elected and after.
ROB BONTA: You know, we were doing the things we’re supposed to be doing, being by the side of the people as they faced their biggest challenges, tackling issues of public safety, fentanyl, human trafficking, hate crimes, organized retail crime. We were fighting for rights and protections, constitutional rights, civil rights, access to healthcare, making sure that housing was being built, making sure there was safety from gun violence, making sure we were taking appropriate climate action. And then Mr. Trump was elected president and all the things we were doing before we continue to do. And we also are taking on the additional role and work of holding this administration accountable when it breaks the law. We have a simple proposition. If Trump breaks the Law, we sue him. If he doesn’t break the law, we don’t sue him. In our sweet spot is the facts and the law, environments free of politics where we can present the facts and apply the law. And we have brought 55 lawsuits in less than that many weeks, so more than one lawsuit a week. And we’ve won 80% of the time. We’ve protected $188 billion worth of funding that Trump unlawfully tried to withhold from California. We’ve protected key rights and freedoms like birthright citizenship and voting rights. We were able to get the unlawfully federalized national guard out of California after six months of fighting tooth and nail. And we’re fighting on many fronts. So that is a politician’s answer–long answer to a short question. I didn’t imagine I would be doing this. Our life has changed considerably, but we continue to do all the things we were doing before, plus, on top of that, we’ve added the important work of holding a president accountable when he breaks the law.
ELIZABETH JOH: So, Trump’s campaign, obviously, for his second term, focused on his mass deportation agenda. And we’re seeing that in action for the past year in places like Los Angeles and Chicago and, of course, Minneapolis. But I think one of the things that is often confusing is there are many terms in the immigration debate. And the biggest one is probably the idea of a sanctuary jurisdiction. And California is, as a matter of state law, a sanctuary state. So could you explain what being a sanctuary state means in practical terms?
ROB BONTA: Sure. And it’s not a term I prefer. I prefer to say a pro-public safety, pro-community trust state, as enshrined in our California values act, which you’ve referred to, passed in 2017 during Trump 1.0. And it basically says that the limited and vital criminal law enforcement resources of California will focus on crime. They’ll focus on tackling crime like murder and rape and robbery and assault in battery and not be used, with some exceptions, to engage in civil immigration enforcement, particularly when there is a whole set of federal departments and agencies that enforce immigration laws, ICE and the Department of Homeland Security among them. And so that is fully within our Tenth Amendment rights to take that position, to want to focus on crime, and to take the position that when victims feel safe and able to come forward, when witnesses can come forward and report crime to law enforcement, then crimes will get solved and communities are safer. And certainly the federal government can enforce federal immigration law if they do that lawfully, and the states cannot obstruct or interfere. But the anti-commandeering principle of the Tenth Amendment, which provides strong rights for states, basically says that all powers that are not delegated to the United States government or prohibited from the states from having are provided to the states or the people. And that is where this anti-commandeering principle exists, where it says that the federal government can enforce federal law, but they can’t force states to do their job for them. They can’t commandeer them, conscript them, draft them into service, force them to do the federal government’s job for it. So that is essentially what is meant by “sanctuary” or “jurisdiction” or, my words, “pro-public safety, pro-community trust.” But the word “sanctuary” unfortunately has taken on a very different meaning in the world. Some people very, very wrongly think it means it’s a safe haven for criminals. Absolutely not true. Our position in California has been we will focus on crime and we won’t have our critical resources diverted for civil immigration enforcement and we will investigate crime, arrest for crime, prosecute for crime regardless of your immigration status. So a lot gets lost in translation, unfortunately, but that’s what it means to be a “sanctuary jurisdiction” or a “pro-public safety, pro-community trust jurisdiction.”
ELIZABETH JOH: So, practically speaking, that sounds like that means that, of course, federal agents can come in and enforce the federal law but your local police agency doesn’t have to really lift a finger to aid that if they don’t wish to, is that right?
ROB BONTA: Right, and they’re actually, in most cases, prohibited from participating in civil immigration enforcement. Tackling crime? Another story. We’re in joint task forces all over the place when it comes to tackling fentanyl and human trafficking and organized retail crime and gun violence and gun trafficking and folks involved in murders; we’re working with the federal government all the time. But when it comes to civil immigration and enforcement, SB 54 prohibits that, except with some exceptions for serious and violent crimes and detainers where there’s a request from ICE to pick up someone who’s being released from a jail or a police department and they have a qualifying serious or violent crime. They can, under those limited circumstances, be in cooperation with the federal government.
ELIZABETH JOH: Yeah, so let me go back for a moment. This idea that the Tenth Amendment means, as the Supreme Court’s interpreted, that the federal government can’t conscript and force the states to do the federal governments’ bidding… And so there’s a pretty clear line in the constitutional sand about what states aren’t supposed to be told to do, right? But I think the question that folks have is, on the one hand, you’ve said that states don’t have to help in immigration enforcement, but the Justice Department has also said that if state or local officials interfere with federal immigration enforcement, they could be charged with obstruction. So where do you see that line between states legally declining to help but also maybe not interfering with immigration enforcement?
ROB BONTA: Legally declining to help legally and constitutionally declining to focus critical state resources on public safety–on crime–is nowhere near the line. And so being a “sanctuary jurisdiction” is nowhere near the line of obstruction or interference. I know that the federal government likes to be very aggressive in its interpretation of what constitutes obstruction and interference. They seek to suggest or even explicitly say that just being a “sanctuary jurisdiction” somehow crosses that line into obstruction interference, and they’re just dead wrong on it. When Trump said that he wasn’t sure if the due process clause of the United States Constitution applied to people as opposed to citizens, he didn’t know. And he had a contempt for the law. He recently said that the federal government–well, he said the Republicans–should nationalize elections, where the elections clause in the United States Constitution says that elections are predominantly an area for states to determine the time, place, and manner of those elections.
So, they do try to use the law as a cudgel with very robust, expansive, incorrect interpretations. But being a “sanctuary jurisdiction” is nowhere near the line. And don’t just take my word from it. The Ninth Circuit already decided this issue. It’s done and dusted–decided–already back in Trump 1.0 when the Ninth Circuit said that SB 54 is upheld and fully within California’s Tenth Amendment constitutional rights. You know, something like physically obstructing, assaulting an immigration officer in the lawful execution of official duties of immigration enforcement–that’s something that crosses the line. That’s what obstruction is–interference is–but not a state executing its constitutional rights under the Tenth Amendment to be a pro-public safety, pro-community trust jurisdiction.
ELIZABETH JOH: Right. And what about the reverse scenario? You know, after ICE agents fatally shot Renée Good and Alex Pretti in Minneapolis, Minnesota officials said that the federal government was actually preventing them from conducting their own state and local criminal investigations, doing basic things like preserving evidence. So how should we understand that kind state and federal conflict? And how is the state of California preparing for that potential scenario?
ROB BONTA: I’ll first say that we are in some unprecedented, uncharted territory, unfortunately. There has long been a spirit of cooperation between the federal government and state and local governments when it comes to, for example, a crime that occurs in a state and there could be concurrent overlapping jurisdiction. There’s been sharing of the evidence, sharing of access to the crime scene, the ability for each jurisdiction to fulfill their roles. But the federal government has changed in its position and shown an unwillingness to cooperate. After the murder–excuse me–the killing and maybe murder, TBD, of Renée Good, the federal government immediately said it would not investigate. And the tradition has been for the United States Department of Justice Civil Rights Division to investigate, at least look, gather the facts, pull them together, maybe conclude that there is no reason to take any additional steps. But you won’t even look? You don’t even care about the facts? You’re just gonna decide? It seems so purely political. And I think the whole country saw that. And then keeping evidence and access to the crime scene from local prosecutors–from state prosecutors–it was unprecedented and inappropriate.
We recently issued some guidance here in California in the wake of these positions being taken by the federal government, these unprecedented positions, these very problematic positions, these positions that are contrary to law. And we had seen statements made by people like the Vice President, J.D. Vance, saying that federal immigration officials enjoy absolute immunity–and people like United States Deputy Attorney General Todd Blanche saying in a letter to me and the governor that to attempt to investigate or prosecute federal officials, including immigration enforcement officials, for committing crime in California is, in his words, “illegal and futile.” And that’s just not true. If a federal agent, including a federal immigration enforcement agent, commits a crime on California soil against a Californian, can a California law enforcement entity investigate and prosecute? 1,000% yes. We know what our rights are. We know what the law provides. Our North Star is the law and the facts. That’s what we follow. And we know that if we had something like what occurred in Minnesota happen in California– I hope it doesn’t. It was terrible. It was tragic. It was disgusting and unacceptable. We know what our rights are.
ROMAN MARS: Even in Trump’s first term, California and other democratically led states were threatened with the loss of millions of dollars in federal funding if they did not cooperate with immigration enforcement. And we’re seeing these same threats again in Trump’s second term. And you know, it is typical for the federal government to attach conditions to monies that it gives to states. But could you explain why these threats to yank federal funds particularly violate states rights and what kind of funding threats has California faced?
ROB BONTA: Yeah, the Trump administration from, as you mentioned, Trump 1.0 to Trump 2.0 has used a common move or approach to try to unlawfully force states, mostly blue states, democratic states–let’s be clear about it–to change their policies consistent with what the federal government wants. And they have used coercive funding approaches. They’ve basically threatened to withhold literally billions of dollars worth of funding–funding for transportation, funding to provide cybersecurity or fund counter-terrorism or to even support victims of crime. They would pull that funding that, by the way, the legislative branch, Congress in Article I, has already appropriated. They have the power of the purse, and they already said that funding should flow. But over there on the Article II executive branch, the President is saying, “You’re not getting the funding that you’ve already been appropriated if you don’t engage in immigration enforcement the way we want you to” and trying to change the policies that we have in California and in other states, the so-called “sanctuary policies.”
And there is an ability to encourage or incent certain behavior. The federal government can do that with its funding, but it can’t coerce or compel. When pressure turns into compulsion, then it violates the rules of federalism and violates The Tenth Amendment and the spending clause. And there’s a set of cases that the U.S. Supreme Court decided where a modest incentive– For example, in South Dakota, the federal government said, “You’re not going to get 5% of the state federal highway funding that we would normally give you unless you raise the drinking age to 21 because that’ll make the highways more safe.” That was allowed. It was 5%. It was probably less than a half of 1% of South Dakota’s overall budget. And then later, when there was a policy from the federal government to withhold all of the state’s Medicaid funding if it opted out of the Affordable Care Act’s Medicaid expansion–that was found to be coercive. It was essentially a gun to the head. And it left no real option but to do the bidding of the federal government. And that, under the Tenth Amendment and the spending clause rules, could not occur.
So here we have beat the Trump administration four times in the last year on this move–on the Trump Administration trying to condition funding California is owed on a requirement that we engage in immigration enforcement the way he wants us to. We beat him when it came to Department of Transportation funding, Department of Homeland Security funding, and he just backed down and threw in the towel when it came to Victims of Crime Act, VOCA, funding. So I think he’ll try again. On February 1st, he was supposed to try to withhold funding from sanctuary jurisdictions again. February 1st has come and passed, but we remain vigilant and on high alert to see what he might do because this is something he did in Trump 1.0. He did it again in 2.0. We think he will do it again. But we are on very solid constitutional ground and we have won every time he’s tried to do this. And we believe we will win again if he tries again.
ELIZABETH JOH: Yeah, I just want to step back for a moment and just tie these things together. You know, you’ve mentioned that the federal government can’t commandeer or force the states to do things. That’s the reason of the Supreme Court’s interpretation of the Tenth Amendment. Congress can certainly offer funds to the states and incentivize them. But at some point, if it’s too much–it’s too coercive–it actually violates a Tenth Amendment principle. So there’s a lot of robust principles in the Constitution about saying states have certain prerogatives and rights that the federal government can’t touch. So there’s a whole set of cases here, as you mentioned, that make that clear. Now, one thing of interest is, right after Renée Good was killed, the state of Minnesota filed a lawsuit in federal court against the Trump administration, arguing that the administration was violating the state’s Tenth Amendment rights. And your office filed an amicus or a friend of the court brief. And the whole lawsuit is premised on the idea that this is a big Tenth Amendment problem. And I wonder if you had any thoughts about what exactly is that issue there. Why is the surge in Minneapolis and in other cities in Minnesota violating the Constitution?
ROB BONTA: Yeah, Minnesota and Illinois both brought cases of this nature, asserting Tenth Amendment claims against the federal government. And the cases we’ve talked about already involved sort of the coercive use of funding–attacking conditions to the funding and attempts to withhold huge amounts, billions of dollars worth of funding. And that becomes coercive at some point and becomes compulsion. There’s other ways you can coerce or compel. It could be a command and control where you order or mandate, or it can be a militarized occupation of your state until you give in and say, “I’ll no longer be a sanctuary state.” And the chaos, the constitutional rights violations, the deaths, the killings of American citizens… And the U.S. Attorney General, Pam Bondi, wrote a letter that said some of this in it and sent it to Minnesota and said, “We can withdraw and deescalate if you do these things that you’re already beating us in court on that we tried to do in other ways.” But it was coercion of another type, not necessarily financial but imposing an unprecedented militarized occupation in the form of Operation Metro Surge until the sanctuary policies were withdrawn. And also there was also an equal sovereignty claim. And equal sovereignty is the idea that all states are on equal footing in the eyes of the federal government–that they should all be treated the same. Trump doesn’t treat all states the same. He targets and focuses on and attacks democratic states–blue states. I mean, he says it. It’s not a conclusion or an inference, it’s what he says explicitly he will do.
So those arguments were advanced in the Minnesota case and in the Illinois case. The Northern District of Illinois has not yet issued any opinions. In the Minnesota case, at the preliminary injunction stage, Minnesota’s arguments were not accepted by the court. So we’ll see what happens next. There’s more of the case to occur and more stages in it left. But we think these are important positions to stake out by the states who are being coerced in different ways by the Trump administration. And we’re in unprecedented territory. The Trump administration is doing things we haven’t seen before, trying to coerce, trying to compel, using different tactics and different levers. This is kind of what Trump does. He likes to use leverage. He sees money as leverage. He also sees force as leverage. He sees military occupation as leverage. See LA in June of this year when the National Guard was unlawfully federalized and deployed and the Marines were sent in as well. And then he did that in another blue city, Portland, and another blue city, Washington D.C., and another blue city, Chicago, while berating them about their alleged public safety issues and complaining about their policies of sanctuary, which they have every right to adopt.
ELIZABETH JOH: I wonder if we could turn to another place of constitutional conflict for the states in specifically the abortion context. After the Supreme Court overturned the constitutionally protected right to an abortion in 2022, states were free to do whatever they wanted. So some states, of course, severely restricted or even banned abortion. And others provided protections for access to legal abortion. So, for instance, Texas has banned nearly all abortions, so a medical provider cannot provide a legal abortion inside the state of Texas. But of course, the availability of abortion medications and telemedicine means that a doctor in New York or California can provide medication to a patient who is living in Texas without ever having set foot in Texas. Now, some states, including Texas, have decided to go after some of these doctors who have helped women obtain abortions within their states, even though the doctors have never entered Texas or Louisiana. And of course, there is another aspect of the Constitution, that’s the Full Faith and Credit Clause of Article IV. And the general idea here, of course, is that every state should keep their own courts open to the laws and judgments of the other states. And California does provide access to reproductive health and legal abortion. So what is the state doing here to balance protecting these rights within the state, but then also not crossing the line in terms of constitutional requirements that states should respect each other’s laws and proceedings?
ROB BONTA: Well, in that regard, we are asserting ourselves in California with respect to our state’s rights to decide that abortion is safe and legal. We’ve even enshrined it in our state constitution here. The people of our state decided that there is a constitutional right to an abortion and contraception. We’ve created laws that provide the ability for patients to seek and receive and providers to provide safe and legal abortions in California, and also prevented attempts from other states to sort of engage in long arm civil and criminal liability actions–trying to reach into California because it’s something that we find completely legal and that is safe in California, but they disagree in their state that there’s liability in that other state. So we’ve put up a number of different guard rails and protections and legal safe havens in California. And we think that is all within our rights to do so and that our decisions here–the court’s decisions here–deserve full faith and credit and should be honored by other states. So we don’t see any constitutional problems with our robust lawful commitment to safe and legal abortion in California.
ELIZABETH JOH: And that includes things like refusing to hand over information about doctors who might have provided such information and help to patients within states that have severely restricted or banned abortion. Is that right?
ROB BONTA: Yeah, there are some prohibitions on, for example, a corporation like, let’s say, Apple or Google getting a subpoena from an out-of-state entity about a medical procedure abortion that is completely legal in California. It’s a legal and private medical procedure. And there’s no appropriate basis for that information to be sought by an out-of-state entity. And so there are protections in place for that. Basically, we are protecting anything in California that is lawful in California from any type of exposure to civil or criminal liability from someone outside of the state who sees it differently.
ROMAN MARS: Many of the lawsuits that your office has been involved with against Trump are part of this multi-state coalition of Democratic attorneys general. Apart from just reacting to actions from the administration, have you been in planning mode? How do you coordinate? How do you talk to each other? This new fraternity of people–fraternity, sorority, or collection of people–is really on new ground. And how are you working together in a way that’s different?
ROB BONTA: It’s a coalition of co-equals. We are all an independent executive in our sovereign states. No one’s the boss of anybody else. We’re all each other’s peers. We work together by choice, deliberately and intentionally, because we believe that we together can create something that’s greater and stronger and more powerful than the sum of our parts when we come together as a whole. And we have been planning and talking and strategizing and preparing since before Trump was elected, knowing that we couldn’t guarantee he wouldn’t be and also knowing that we owed our constituents readiness–preparedness–that we could not be caught flat-footed. We couldn’t, if Trump got elected, say, “Hey, we were all hoping Kamala would get elected, and now we don’t know what to do.” We had to know. And so we listened to everything he said on the campaign trail–his promises. Even if it might be bluff or it might bluster, we took him at his word and assumed he was going to do it. And he handed to us a written document that told us what he would do, Project 2025. And we reviewed that and looked at all of the plans therein and assumed he was going to engage in trying to manifest those plans. And my team and our collective teams were tasked with being ready for all of the above. Be ready for the Insurrection Act. Be ready for the Comstock Act. Be ready for all of these sort of fringe theory approaches to seizing power that’s not theirs in the “unitary executive” and attacking our states and our progress and our policies and our people and our values. So, there are some things that haven’t come to pass yet that we’ve been ready to address for months. We don’t want them to come to pass. But if they do, all we have to do is dot the I’s, cross the T’s, press print, and file our complaint, and we believe we’ll win because we’ve thought about it and we’ve prepared.
And there are 24 Democratic attorneys general. When Trump was inaugurated, there were 23. The Virginia AG flipped from red to blue in the election in November of last year. And we communicate every week. We meet often. We pick up the phones regularly. Our staffs are in regularly set meetings to communicate, plan, and prepare. We are flagging issues that we see in our states, asking the other states if they’re experiencing the same things, and deciding where we file a lawsuit, what claims we file on, what our injury is, and how we protect our people and our states from these unlawful actions. So there has been consistent contact, communication, strategizing, planning, and preparing since before Trump was elected until today. And now we’re 55 lawsuits in, in California, and a really strong record of success. And we’re ready for whatever comes. Got a full tank of gas, full of energy, ready to roll. I hope that this president might decide, “Hey, maybe it’s a good idea to follow my oath and comply with the Constitution and not trample on it and not look over longingly at Congress and say, ‘Hey, I’d love to have the power of the purse. I’m just gonna start using it, or looking over at our courts and saying, ‘They can’t review my actions,’ or looking down at the states and saying, ‘They don’t have any sovereign rights, they need to do what I say'” and that he’ll comply with the Constitution. But that’s probably a lost hope. And in the meantime, we stay ready and we stay prepared.
ELIZABETH JOH: What are you most worried about that might happen in the coming year from the administration?
ROB BONTA: This is an election year. So I think the integrity of our elections is critical. They’re safe. They’re secure. They’re accurate. They’re reliable in California and across the country. Trump has attacked them time and time again. He’s tried to use his bully pulpit and the fact that he has the biggest mega horn on the planet to try to erode trust in our elections by, even to this day, claiming that he won the 2020 election after people heard his own voice ask the secretary of state of Georgia to find him 11,000+ votes. To find them! You don’t find votes. The votes are cast. You count votes. And he recently sent law enforcement into Georgia to try to support this conspiracy theory that is a figment of his imagination. And that’s a dangerous mental state for the president of the United States to be in. The fact that he seems to think that if he wins the election, it was fair and reliable, and if he loses the election, it was rigged. And he’s even maintained that he’s won the election multiple times in Minnesota. And there have been court cases and other tribunals that have determined that there’s no basis to any of this. And the polls show that he is gonna get beat in the midterms and that the House will flip. So, his conspiracy theories on elections, plus his increased desperation reflected in the polls and how people in America are thinking about him and are unfavorable towards his policies and approach and are gonna be supporting Democrats in the next election, and his willingness to militarize American cities… Those are a dangerous combination. And so I worry about the possibility of a federalized national guard at or near polling stations. I worry about the Marines at or near polling stations. I worry about attempts to use the U.S. Postal Service–part of the federal government–to interfere with vote-by-mail ballots that are cast. I worry about the people’s voice not being heard and being stepped on by an unlawful president who’s violating their rights. And so that just fuels me more to fight harder.
I’m also concerned we haven’t seen sort of the other shoe drop, if you will, on attacks on abortion. We were prepared for a weaponization of the Comstock Act to try to stop the mailing of medication abortion. We haven’t seen that yet, but we’re prepared and ready if it happens. And those are some of the things that are top of mind. We haven’t seen the Insurrection Act be invoked and hope we never will. But he has bandied it about and sort of dangled it out there and suggested he might use it multiple times. And we have closed the door on his ability to use 10 U.S.C. § 12406. That’s the federal statute that he relied on to deploy federalized National Guard to LA, to Portland, and to Chicago. And with the U.S. Supreme Court case and their recent decision, I believe that door is shut pretty firmly. And so I don’t think he will stop in his efforts to use the military as his private roving national army and police force. And he’ll just find other ways, and the Insurrection Act might be that way.
ROMAN MARS: Could you talk about the Instruction Act a little bit? Why is this a weapon that he’s threatening to brandish?
ROB BONTA: The thing that makes the Insurrection Act different than the other statute that he used, 10 U.S.C. § 12406, and some other statutes is that it’s an exception to the Posse Comitatus Act. So if he invokes the Insurrection Act and deploys military in American cities, the Posse Comitatis Act, which generally prohibits the military from engaging in civilian law enforcement, doesn’t apply. The military can engage in civilian enforcement if the Insurrection Act is invoked. The President and those around him have a very robust– That’s a euphemism. I think it’s an unlawful, unconstitutional view of federal power when it comes to the military. I think that they think that they can invoke the Insurrection Act for any reason or no reason at all and they can’t be questioned and courts can’t stop them and that it’s not reviewable by any judge, even if there’s nothing close to an insurrection. And let’s be clear, there is nothing close to an insurrection anywhere in the United States of America. There’s no basis–not even close–to lawfully invoke the Insurrection Act. But the President wants the power. That’s what he seeks. And if he says there’s an insurrection, he likes the power that comes with it and the exception to the Posse Comitatus Act and the ability to move the military into blue cities. And that’s why the threshold is so high that there has to be an actual insurrection. For 10 U.S.C. § 12406 there had to be an invasion or a rebellion or an inability to execute the laws with the “regular forces” in that statute. High thresholds. These are emergency powers, exigent powers. Rarely are there facts on the ground that justify them. But there’s a saying that emergency powers beget emergencies. And the executive branch sees an emergency everywhere they look, not because there’s actually an emergency, but because they like the power if there were an emergency. So that’s why Stephen Miller is saying everything’s an invasion, everything’s a rebellion, everything’s an emergency–not because it is. It’s not. Common sense people can see it’s not. They just want the power.
ROMAN MARS: Well, Attorney General Rob Bonta, thank you so much for taking time to talk with us. And we really enjoyed our conversation.
ELIZABETH JOH: It was wonderful to talk to you.
ROB BONTA: My pleasure. Thanks Roman! Thanks Elizabeth!
ROMAN MARS: Join us next month for Article V, which lays out the process to amend the Constitution.
ELIZABETH JOH: The 99% Invisible Breakdown of the Constitution is produced by Isabel Angell, edited by committee. Music by Swan Real. Mix by Martín Gonzalez.
ROMAN MARS: Kathy Tu is our executive producer. Kurt Kohlstedt is our digital director. Delaney Hall is our senior editor. The rest of the team includes Chris Berube, Jayson De Leon, Emmett Fitzgerald, Christopher Johnson, Vivian Le, Lasha Madan, Joe Rosenberg, Kelly Prime, Jeyca Medina-Gleason, Talon and Rain Stradley, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nestor.
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