Talk has already started. The governors of some blue states are already putting out gestures of resistance:
- Pritzker, Illinois: "You come for my people, you come through me."
- Newsom, California: Has called for a special session to bring more resources to combat attacks on immigration, abortion, and LGBTQ rights.
- Hochul, New York: Has promised to combine forces with Attorney General Letitia James to "protect New Yorkers' fundamental freedoms."
- Walz, Minnesota: Has promised to make Minnesota a 'safe haven' for people to practice their rights.
- Healey, Massachusetts: Has refused to participate in deportation plans;
- Polis, Colorado: Has joined with other Democratic governors and ex-governors to form Governors Safeguarding Democracy. He and Pritzker are co-chairs.
So what if you were 47, with control of both houses of Congress--as it appears is going to happen? What would you do?
I'll tell you what I'd do: promote and get a law passed much like the Fugitive Slave Act of 1850. The territory of California, which had declared itself to be a separate republic (much like Texas), had had its population swell up by more than 100,000 because of the Gold Rush in 1849. It quickly applied for statehood, but as a free state. The South pushed back because that would upset the free-slave state balance, which had roughly been maintained by one slave state being admitted to the Union shortly after, or shortly before, a free state also had, for about a quarter century. If California's admission were to upset that apple cart, there would be secession and a civil war if no offer could be made that the South could accept.
Henry Clay to the rescue. In the last major bill that he promoted before his death, he proposed the Fugitive Slave Act, to pave the way for California's admission. That law demanded and made it legally binding for authorities from slave states to coerce law enforcers from free states to try to help them find fugitive slaves and transport them back into captivity. It did not allow for state authorities to opt whether or not to do so.
The Fugitive Slave Act caused intense outrage in the states where slavery had either died out or had been legislatively forbidden. It resulted in some free states passing "personal liberty laws," giving state enforcers the right to refuse assistance to federal authorities, or authorities from slave states, assigned to take fugitives back into slavery.
In other words, the Fugitive Slave Act warded off war, but could not guarantee peace. The actual Civil War, it has at times been disingenuously said, was caused by a reaction to a threat upon states' rights. Another situation, with geography largely flipped on its head, may in fact be happening and very soon.
Laws in states mentioned above (and others), passed in objection to taking immigrants and putting them into concentration camps, separating children from their families, and shipping them out of the country--never mind if the country of their origins will accept them back--would set up very definitive new states' rights situations, the enforcements of which may create a deep and abiding constitutional crisis. What if the governors of such states activate their National Guard units to protect immigrants? And what if 47 activated the U.S. Army to challenge that?
Then the National Guard folks would have an unalterable choice to make: Justice, or the law? There would be no choice, if their oath to the Constitution would be genuine. If that should come to pass, all the big talk by blue state governors might come to naught, or at the very most, a paper tiger.
Flipped on its ear, too, would be the purpose of the Supremacy Clause: to guarantee that laws would be enforced properly and fairly, regardless of what state governors would think of them. In 1957, Governor Orval Faubus of Arkansas brought out the state's National Guard to 'protect' Little Rock Central High School from having to admit nine black students, in violation of the earlier Supreme Court ruling that demanded it. President Dwight Eisenhower, in a much celebrated decision by liberals, called out the 82nd Airborne to parachute near Little Rock and march to the school to override the governor's decision (even though Ike didn't much like doing it). The National Guard had to stand aside and watch. It did not resist.
Faubus, in other words, dared Eisenhower to take action, and Eisenhower called him on it. Perhaps the same thing will happen to 47. I think we know how he'll respond, and this time with all the justification that the Constitution, which he otherwise might dispense with at his leisure now that the Supreme Court gives him all the license he needs, guarantees, and with joyous enthusiasm. Eisenhower said little in performing his presidential duties, though. I don't think 47 would remain quiet in the least. He would be pompous, hypocritically self-righteous, and endlessly obnoxious.
So did Faubus press the Guard into service to gain political points with his constituents? Cynics might agree. In the list above, I see at least three potential candidates to make presidential runs in 2028. Democrats are hardly possessed with political purity. The same thing's possible.
So what goes around, comes around, though it might take more than six decades in one case, 175 years in another. Would the same thing happen if a Republican Congress should pass a national abortion ban, one that might even prohibit interstate travel to have one? What kind of constitutional showdown might that cause? And what kind of resistance?
I do not see acquiescence ahead. Talk of resistance lasted about four years, but much of it was talk. This, I think, will be the real thing. That will cause crackdowns, overenforcement, and the sting of authoritarianism. It will open wounds that will remain raw.
I do not see settlement ahead, either. Secession? We seem a long way from that. But the emotionalism brought by a repeat and reports of immigrant abuses would reach new heights. Coercion would inflame that emotional cauldron even more. From there, it is difficult to know what the future will bring.
Be well. Be careful. With some luck, I'll see you down the road.
Mister Mark