When presidential orders collide with state laws, who gets the last word? It depends
ALBANY — President Donald Trump released a flurry of executive actions over the past month that could lead to increased school taxes in New York, raise the cost of goods from construction materials to gas prices, cut federal funding for transportation and separate immigrant families.
New York and other states don’t necessarily need to follow all of the directives, according to constitutional and public policy scholars and attorneys. But some of the orders carry a threat of billions of dollars in reduced federal aid for not complying.
“An executive order, just as a piece of paper, doesn’t do anything. It has to be implemented,” said Julie Novkov, dean of the Rockefeller College of Public Affairs and Policy at the state University at Albany. “So the real question lies in how federal officials are going to implement executive orders in ways that might have an impact on what the states are doing.”
The Republican president’s wide-ranging directives, including 73 executive orders, influence everything from immigration enforcement to strengthening border security, from eliminating diversity, equity and inclusion policies and programs to imposing tariffs on goods from certain countries.
“Part of the problem is that Trump wants to flood the zone and it’s difficult to track all those executive orders and what they do and what they require,” said Carl Tobias, a law professor and the Williams Chair in Law at the University of Richmond.
What states have to follow depends largely on what the order entails, Tobias said.
For example, New York can’t decide not to follow Trump’s national tariff proclamations, which are under the authority of the federal government, he said.
But states have more leeway in other instances. For example, the federal government cannot commandeer state and local law enforcement to enforce U.S. immigration policy, according to constitutional and public policy scholars and attorneys.
Generally executive orders are directed at federal government officials and agencies, but those agencies can try to enforce Trump’s policies on states even if they conflict with state-level policies and laws, constitutional scholars and attorneys said.
For example, Trump issued an executive order to replace what he calls the “radical indoctrination” of “anti-American ideologies” in public schools with “patriotic education.” The order references gender identity and separate sex restrooms and also targets teaching about structural racism and “white privilege.”
The order clashes with New York State laws, inclusion policies and classroom curriculum, which is set at the local level.
State officials already have said they plan to resist the order. If the courts rule in favor of Trump or Congress backs the order, New York risks losing federal funding dollars for not complying — funding the state would likely have to make up for in tax increases, including school taxes.
“We’re not going to sit idly by and let our rights be attacked,” Gov. Kathy Hochul told CBS News in a Feb. 23 interview when asked about Trump’s orders including those aimed at transgender athletes. “There’s areas where we’re going to work with you on immigration and getting the violent criminals off our streets. We do not dispute that. But don’t think that you can just come in and bully us around and not expect a reaction from governors,” Hochul said, directing her comments at Trump.
Whether the president has the right to take certain actions largely comes down to the separation of powers allocated by the U.S. Constitution, constitutional scholars and attorneys said. And when it’s unclear, that’s when the courts step in as a check of that power.
“We are going to see a tsunami of lawsuits,” Novkov said.
Several legal challenges have already been brought by state attorneys general, including New York Attorney General Letitia James, against Trump’s directives, setting up constitutional battles on several fronts.
“We need to remember that it is the United States of America, that means 50 co-equal states and we have a government that is built on the consent of the governed,” said Susan Lerner, executive director of the Common Cause/NY good-government group. “We believe in the Constitution, we believe in checks and balances, and therefore we believe the states need to step up and assert their sovereignty in the federalist system and protect state residents.”
Here’s what to know:
The Constitution sets out the power structure for the federal government, including the executive, legislative and judicial branches. There’s a system of checks and balances within that structure, and there are certain powers given to the states and certain powers given to the federal government. For example, the federal government has overarching powers such as regulating interstate commerce, said Novkov, a constitutional scholar and political science professor at the University at Albany. The federal government also has the power to declare war, Tobias said.
Federal law essentially creates a baseline that states have to follow, Novkov said. States can’t legally violate federal law, but they can have stricter laws, she said. For example, state’s like New York have increased environmental protections, as well as protections against discrimination.
States have the responsibility to “protect the health, safety and welfare of their residents,” Novkov said, adding that they traditionally have a good deal of control over areas such as education, criminal law and enforcement.
But what falls under the authority of the federal government and what falls under states’ authority is “not always crystal clear,” Novkov said.
The federal-state power structure gets even more complex with regards to executive directives from the president. These directives, according to the American Bar Association, include:
Executive orders, which typically manage the operations of the federal government;, Proclamations, which communicate information on holidays, commemorations, federal observances and trade; and, Administrative orders, which include memorandums, notices, letters and messages, are used to “manage the administrative matters of the federal government,”.
“Both executive orders and proclamations have the force of law, much like regulations issued by federal agencies,” according to the Bar Association. They, however, must be within the president’s authority and must not violate the Constitution, constitutional scholars and attorneys said.
When it comes to state compliance with executive orders, “it really depends on the specific order and what it means to do,” Tobias said. “It’s just a whole range of possibilities,” he said, adding that these are “complex” constitutional questions and whole books have been written on them.
For example, the federal government can step in when there’s a conflict of constitutional rights, such as what happened with the desegregation of public schools in the south, Tobias said.
The 14th Amendment rights of the school children trumped the states’ rights to keep the school segregated, and the federal government enforced those rights, he said.
The federal government also has more authority in certain areas, such as border security and immigration policies, according to constitutional scholars and attorneys.
However, under the Supreme Court’s anti-commandeering doctrine — which took a rather narrow view of the 10th Amendment and state’s rights — Congress cannot direct state and local officials to enforce federal law.
“There has to be respect for the states’ autonomy to some extent,” Tobias said. Though the “ideal situation is state and federal cooperation,” he said.
For example, states cannot impede federal immigration enforcement, but they can generally direct state and local law enforcement to not provide assistance to the U.S. Immigration and Customs Enforcement, ICE, unless there’s a court order, according to constitutional scholars and immigration attorneys. Trump has issued multiple executive orders strengthening immigration and border security and some New York State lawmakers and immigrants’ rights groups are pushing for state legislation to block state and local officials from cooperating with ICE unless there’s a judicial warrant.
New York’s Green Light Law, similarly, can’t necessarily be trumped by executive orders, according to constitutional scholars and attorneys. The law allows residents to apply for a non-commercial driver’s license regardless of citizenship, and limits the sharing of DMV records with federal immigration enforcement agencies unless they have a court order. U.S. Attorney General Pam Bondi earlier this month filed a civil complaint challenging the state law.
Democratic-aligned states such as New York may push back on Trump’s orders, but other, more Republican-aligned states, may go further to collaborate with the Trump administration, Novkov said. “This is going to be a very active area for political maneuvering.”
While executive orders are directed at federal agencies, states can be impacted through the implementation of orders, such as through federal programming cuts and changes. For example, the Trump Administration’s Office of Management and Budget on Jan. 29, following executive orders pausing certain funding streams for evaluation, issued a memo to freeze funding for thousands of federal programs and assistance. It would have a major impact on New Yorkers, particularly those relying on Medicaid funds, as well as other funding areas such as health care, education, law enforcement, disaster relief and infrastructure. Multiple state attorneys general, including James, filed a lawsuit to pause the freeze, which was temporarily granted by a judge.
One of the other ways the Trump administration has tried to implement its policies and directives is by taking aim at funding. The administration has threatened to withhold education funding for schools and universities that fail to eliminate their diversity initiatives. Trump administration officials have also floated tying transportation funding to birth rates.
But the president doesn’t have the power to withhold funding that’s already been allocated by Congress, said James Sample, a professor of constitutional law at Hofstra University.
The U.S. Constitution gives Congress the “power of the purse,” he said.
Congress over time has used that power as a way to regulate states, industries and areas of the economy that it wouldn’t have the power to regulate directly on its own, Sample said.
For example, Congress passed the National Minimum Drinking Age Act in 1984 which withheld federal highway funds from states that didn’t set a minimum drinking age of 21.
Presidents do not have the power to put conditions on funding or to halt funding that Congress already allocated, Sample said.
President Richard Nixon tried to reduce the amount of funding allocated for water pollution control and abatement in New York City, but the U.S. Supreme Court ruled that he didn’t have the power to do so. Congress then passed the Impoundment Control Act of 1974 which creates a clear, public process for presidents to request funding changes.
Traditionally, clashes between the state and federal government come down to the courts, Tobias said. “The White House might think that it has the power of the law, but if a federal judge says, ‘You’re not allowed to do that,’ then it doesn’t.”
Many of Trump’s orders and directives already are being challenged by attorneys general as well as unions, nonprofits, and private parties. Those bringing the lawsuits typically request a stay, a temporary restraining order or a preliminary injunction, so the orders can’t be implemented in the interim.
For example, New York State Attorney General James along with other attorneys general filed suit against Trump’s Jan. 20 executive order to end birthright citizenship. A federal judge issued a preliminary injunction on Feb. 13. Other judges have taken similar action on directives from Trump.
Trump nominated 234 judges in his first term, including three of the sitting U.S. Supreme Court justices. Some of those judges already have ruled against him, Tobias said.
The check and balance of the court system are not foolproof.
On the rare occasion that the U.S. Supreme Court rulings aren’t followed, the executive branch has the power to enforce the decision, according to the Federal Judicial Center.
States also could wield their influence through their congressional delegations, Sample said. “States can play defense by challenging the actions that are being taken, and states can play offense by pushing Congress to do its job in a more robust fashion,” he said.
Both houses of Congress currently have Republican majorities, and it’s unclear if they would push back against a president who is in their own party, though they could face pushback from voters in two years.
For now, as states push back, all eyes are on the courts and Congress.
“We are at a critical juncture for our constitutional system of Democracy,” Sample said. “Portions of the Constitution that have been part of the fabric of our government for centuries are being challenged in new ways.”
ALBANY — President Donald Trump released a flurry of executive actions over the past month that could lead to increased school taxes in New York, raise the cost of goods from construction materials to gas prices, cut federal funding for transportation and separate immigrant families.
New York and other states don’t necessarily need to follow all of the directives, according to constitutional and public policy scholars and attorneys. But some of the orders carry a threat of billions of dollars in reduced federal aid for not complying.
“An executive order, just as a piece of paper, doesn’t do anything. It has to be implemented,” said Julie Novkov, dean of the Rockefeller College of Public Affairs and Policy at the state University at Albany. “So the real question lies in how federal officials are going to implement executive orders in ways that might have an impact on what the states are doing.”
The Republican president’s wide-ranging directives, including 73 executive orders, influence everything from immigration enforcement to strengthening border security, from eliminating diversity, equity and inclusion policies and programs to imposing tariffs on goods from certain countries.
WHAT NEWSDAY FOUND
- President Donald Trump released a flurry of executive actions over the past month that could lead to increased school taxes in New York, cut federal funding for transportation and separate immigrant families.
- New York and other states don’t necessarily need to follow all of the directives, according to constitutional and public policy scholars and attorneys.
- But some of the orders carry a threat of billions of dollars in reduced federal aid for not complying.
“Part of the problem is that Trump wants to flood the zone and it’s difficult to track all those executive orders and what they do and what they require,” said Carl Tobias, a law professor and the Williams Chair in Law at the University of Richmond.
What states have to follow depends largely on what the order entails, Tobias said.
For example, New York can’t decide not to follow Trump’s national tariff proclamations, which are under the authority of the federal government, he said.
But states have more leeway in other instances. For example, the federal government cannot commandeer state and local law enforcement to enforce U.S. immigration policy, according to constitutional and public policy scholars and attorneys.
Generally executive orders are directed at federal government officials and agencies, but those agencies can try to enforce Trump’s policies on states even if they conflict with state-level policies and laws, constitutional scholars and attorneys said.
For example, Trump issued an executive order to replace what he calls the “radical indoctrination” of “anti-American ideologies” in public schools with “patriotic education.” The order references gender identity and separate sex restrooms and also targets teaching about structural racism and “white privilege.”
The order clashes with New York State laws, inclusion policies and classroom curriculum, which is set at the local level.
State officials already have said they plan to resist the order. If the courts rule in favor of Trump or Congress backs the order, New York risks losing federal funding dollars for not complying — funding the state would likely have to make up for in tax increases, including school taxes.
“We’re not going to sit idly by and let our rights be attacked,” Gov. Kathy Hochul told CBS News in a Feb. 23 interview when asked about Trump’s orders including those aimed at transgender athletes. “There’s areas where we’re going to work with you on immigration and getting the violent criminals off our streets. We do not dispute that. But don’t think that you can just come in and bully us around and not expect a reaction from governors,” Hochul said, directing her comments at Trump.
Whether the president has the right to take certain actions largely comes down to the separation of powers allocated by the U.S. Constitution, constitutional scholars and attorneys said. And when it’s unclear, that’s when the courts step in as a check of that power.
“We are going to see a tsunami of lawsuits,” Novkov said.
Several legal challenges have already been brought by state attorneys general, including New York Attorney General Letitia James, against Trump’s directives, setting up constitutional battles on several fronts.
“We need to remember that it is the United States of America, that means 50 co-equal states and we have a government that is built on the consent of the governed,” said Susan Lerner, executive director of the Common Cause/NY good-government group. “We believe in the Constitution, we believe in checks and balances, and therefore we believe the states need to step up and assert their sovereignty in the federalist system and protect state residents.”
Here’s what to know:
Balance of power
The Constitution sets out the power structure for the federal government, including the executive, legislative and judicial branches. There’s a system of checks and balances within that structure, and there are certain powers given to the states and certain powers given to the federal government. For example, the federal government has overarching powers such as regulating interstate commerce, said Novkov, a constitutional scholar and political science professor at the University at Albany. The federal government also has the power to declare war, Tobias said.
Federal law essentially creates a baseline that states have to follow, Novkov said. States can’t legally violate federal law, but they can have stricter laws, she said. For example, state’s like New York have increased environmental protections, as well as protections against discrimination.
States have the responsibility to “protect the health, safety and welfare of their residents,” Novkov said, adding that they traditionally have a good deal of control over areas such as education, criminal law and enforcement.
But what falls under the authority of the federal government and what falls under states’ authority is “not always crystal clear,” Novkov said.
The federal-state power structure gets even more complex with regards to executive directives from the president. These directives, according to the American Bar Association, include:
- Executive orders, which typically manage the operations of the federal government;
- Proclamations, which communicate information on holidays, commemorations, federal observances and trade; and
- Administrative orders, which include memorandums, notices, letters and messages, are used to “manage the administrative matters of the federal government.”
“Both executive orders and proclamations have the force of law, much like regulations issued by federal agencies,” according to the Bar Association. They, however, must be within the president’s authority and must not violate the Constitution, constitutional scholars and attorneys said.
State compliance
When it comes to state compliance with executive orders, “it really depends on the specific order and what it means to do,” Tobias said. “It’s just a whole range of possibilities,” he said, adding that these are “complex” constitutional questions and whole books have been written on them.
For example, the federal government can step in when there’s a conflict of constitutional rights, such as what happened with the desegregation of public schools in the south, Tobias said.
The 14th Amendment rights of the school children trumped the states’ rights to keep the school segregated, and the federal government enforced those rights, he said.
The federal government also has more authority in certain areas, such as border security and immigration policies, according to constitutional scholars and attorneys.
However, under the Supreme Court’s anti-commandeering doctrine — which took a rather narrow view of the 10th Amendment and state’s rights — Congress cannot direct state and local officials to enforce federal law.
“There has to be respect for the states’ autonomy to some extent,” Tobias said. Though the “ideal situation is state and federal cooperation,” he said.
For example, states cannot impede federal immigration enforcement, but they can generally direct state and local law enforcement to not provide assistance to the U.S. Immigration and Customs Enforcement, ICE, unless there’s a court order, according to constitutional scholars and immigration attorneys. Trump has issued multiple executive orders strengthening immigration and border security and some New York State lawmakers and immigrants’ rights groups are pushing for state legislation to block state and local officials from cooperating with ICE unless there’s a judicial warrant.
New York’s Green Light Law, similarly, can’t necessarily be trumped by executive orders, according to constitutional scholars and attorneys. The law allows residents to apply for a non-commercial driver’s license regardless of citizenship, and limits the sharing of DMV records with federal immigration enforcement agencies unless they have a court order. U.S. Attorney General Pam Bondi earlier this month filed a civil complaint challenging the state law.
Democratic-aligned states such as New York may push back on Trump’s orders, but other, more Republican-aligned states, may go further to collaborate with the Trump administration, Novkov said. “This is going to be a very active area for political maneuvering.”
‘Power of the purse’
While executive orders are directed at federal agencies, states can be impacted through the implementation of orders, such as through federal programming cuts and changes. For example, the Trump Administration’s Office of Management and Budget on Jan. 29, following executive orders pausing certain funding streams for evaluation, issued a memo to freeze funding for thousands of federal programs and assistance. It would have a major impact on New Yorkers, particularly those relying on Medicaid funds, as well as other funding areas such as health care, education, law enforcement, disaster relief and infrastructure. Multiple state attorneys general, including James, filed a lawsuit to pause the freeze, which was temporarily granted by a judge.
One of the other ways the Trump administration has tried to implement its policies and directives is by taking aim at funding. The administration has threatened to withhold education funding for schools and universities that fail to eliminate their diversity initiatives. Trump administration officials have also floated tying transportation funding to birth rates.
But the president doesn’t have the power to withhold funding that’s already been allocated by Congress, said James Sample, a professor of constitutional law at Hofstra University.
The U.S. Constitution gives Congress the “power of the purse,” he said.
Congress over time has used that power as a way to regulate states, industries and areas of the economy that it wouldn’t have the power to regulate directly on its own, Sample said.
For example, Congress passed the National Minimum Drinking Age Act in 1984 which withheld federal highway funds from states that didn’t set a minimum drinking age of 21.
Presidents do not have the power to put conditions on funding or to halt funding that Congress already allocated, Sample said.
President Richard Nixon tried to reduce the amount of funding allocated for water pollution control and abatement in New York City, but the U.S. Supreme Court ruled that he didn’t have the power to do so. Congress then passed the Impoundment Control Act of 1974 which creates a clear, public process for presidents to request funding changes.
Constitutionality
Traditionally, clashes between the state and federal government come down to the courts, Tobias said. “The White House might think that it has the power of the law, but if a federal judge says, ‘You’re not allowed to do that,’ then it doesn’t.”
Many of Trump’s orders and directives already are being challenged by attorneys general as well as unions, nonprofits, and private parties. Those bringing the lawsuits typically request a stay, a temporary restraining order or a preliminary injunction, so the orders can’t be implemented in the interim.
For example, New York State Attorney General James along with other attorneys general filed suit against Trump’s Jan. 20 executive order to end birthright citizenship. A federal judge issued a preliminary injunction on Feb. 13. Other judges have taken similar action on directives from Trump.
Trump nominated 234 judges in his first term, including three of the sitting U.S. Supreme Court justices. Some of those judges already have ruled against him, Tobias said.
The check and balance of the court system are not foolproof.
On the rare occasion that the U.S. Supreme Court rulings aren’t followed, the executive branch has the power to enforce the decision, according to the Federal Judicial Center.
States also could wield their influence through their congressional delegations, Sample said. “States can play defense by challenging the actions that are being taken, and states can play offense by pushing Congress to do its job in a more robust fashion,” he said.
Both houses of Congress currently have Republican majorities, and it’s unclear if they would push back against a president who is in their own party, though they could face pushback from voters in two years.
For now, as states push back, all eyes are on the courts and Congress.
“We are at a critical juncture for our constitutional system of Democracy,” Sample said. “Portions of the Constitution that have been part of the fabric of our government for centuries are being challenged in new ways.”
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