Dem
47
GOP
53
We have seen more caving during the first 9 months of Donald Trump's administration than all the members of the National Speleological Society combined see in a year. How come? It has to do with the incentive structure. Gov. Gavin Newsom (D-CA) seems to be the only Democratic politician who understands this (and also seems to have a good grasp of the psychology of bullies). That he is also running for president gives him more motivation to get in the spotlight, but that isn't a requirement.
He has decided to fight back by changing the incentive structure. Last week, Trump sent a 10-page letter to major universities offering them a deal: Sign a compact to effectively cede control of the university to him and he won't destroy the university right now. In fact, he may make them eligible for some ill-defined future special benefits "where feasible" (weasel words, so watch out). His demands include:
These are just a few of the "highlights." The general tone is forbid any effort to give any advantage to any underrepresented group. If a department has 10 white male professors and a qualified Black female has applied for a vacant position and is as good as the best male candidate, they would be forbidden from using sex or race as the tiebreaker. Presumably they could ask each one to sing the Star Spangled Banner and use singing ability as the tiebreaker. The compact would be overseen not by what is left of the Dept. of Education, but the DoJ, which could cancel federal funding and benefits for violations. You hired a Black woman. Your funding is hereby canceled. Tough.
Newsom understands that while this "deal" seems to be more "carrot" than "stick" initially, the benefits are vague and might not materialize after the universities make all the changes demanded. So, he decided to change the incentive structure. He tweeted this in his now-famous style for mocking Trump:
IF ANY CALIFORNIA UNIVERSITY SIGNS THIS RADICAL AGREEMENT, THEY'LL LOSE BILLIONS IN STATE FUNDING—INCLUDING CAL GRANTS—INSTANTLY. CALIFORNIA WILL NOT BANKROLL SCHOOLS THAT SELL OUT THEIR STUDENTS, PROFESSORS, RESEARCHERS, AND SURRENDER ACADEMIC FREEDOM.
What Newsom understands is that everyone Trump has intimidated or threatened (including dangling benefits that might never appear along with penalties for noncompliance with the deal) is faced with this choice: If we agree, we won't be damaged right now and might get some benefits later, but if we don't agree, we will be punished now. In essence, there is an upside to obeying Trump, and much less downside for obeying him. Newsom wants to create a downside (losing California funding) for obeying Trump.
Other governors could get much more aggressive about fighting back. Suppose all blue states threatened university funding if they signed on with Trump. Or, more generally, when Trump threatens to deny law firms access to federal courtrooms if they don't kowtow to him, suppose 15 governors threatened to deny those firms access to state courtrooms if they do kowtow to him. What if making a corrupt deal to not lose (or get) federal funds means losing state funds or being banned from getting state contracts? What if lawyers who gave into blackmail were disbarred in the 15 states where the Democrats hold the trifecta? Would this be legal? Probably not, but it could take years before the courts ruled on it and would leave the lawyers in limbo in the interim.
What Newsom seems to understand is that when faced with blackmail, the target is sorely tempted to give in because there is no (or not much) downside to surrendering. But suppose there were a big downside to giving in? Then many targets would stiffen their spines, refuse, and go to court, especially in cases where they would likely win. By creating a downside for caving, targets would have to weigh the risks of either decision and the likely outcome would be fighting the blackmail in court.
But it actually goes much further than this. Numerous federal officials at the highest level have no hesitancy in obeying Trump when he orders them to break the law because there is a downside in disobeying (being fired instantly) but no downside in obeying. Suppose there was. Suppose a group of Democratic senators and governors, including many of the likely presidential candidates, were to say that if the Democrats got in power in Jan 2029, their top priority should be vigorously prosecuting current federal officials who have broken their oaths and the law. They would also ask for the longest prison terms allowed by law.
Further suppose they supply specific examples, naming officials and laws they have clearly broken, saying indicting these people and putting them on trial for their crimes would be a top priority. Violations of the Hatch Act come to mind here, as a bare minimum. That would change the incentive structure. As it is now, federal officials believe that Republicans will punish them if they DON'T break the law but Democrats won't punish them if they DO break the law. Democrats need to make it abundantly clear that they are no longer Mr. Nice Guy and they will come down extremely hard on officials who break the law while in office as soon as they get the chance. Are Pete Hegseth and Kristi Noem willing to risk years in prison to keep their $246,400/year jobs? Are they really as brave as they pretend?
But there is still more blue-state governors can do, especially if the 15 of them in Democratic trifecta states work together. That is a huge bloc with money, power and law-enforcement officials. Suppose that when an ICE agent tries to arrest someone, state and local officials demand to see their identification and the warrant for arresting that person. If the agent fails to provide one, the state law-enforcement officer could say: "Since you are apparently not working for the federal government and have no arrest warrant for this person, I have to assume you are a common criminal trying to kidnap someone. Kidnapping is a state crime. You are under arrest. You have the right to remain silent, etc." Then the ICE agent is handcuffed, taken away and charged with kidnapping. ICE agents who break down doors to gain entry to buildings and can't prove they are federal agents following lawful orders could be arrested for burglary or breaking and entering under state laws. Having states aggressively enforce their own laws against individual agents and doing their best to not have them released on bail changes the incentive structure for wanting to work for ICE. How many headlines do there have to be saying: "ICE agent arrested for kidnapping and held without bail" before many agents start looking for other jobs?
In short, Newsom is starting to change the incentive structure around blackmail. Blue-state governors aren't helpless if they band together and start enforcing their own laws. Federalism is a two-way street. The supremacy clause in the Constitution applies only to lawful actions. It does not protect federal employees at any level who are violating federal law and committing state crimes. Of course there will be lawsuits, the lower courts, at least, have not been sympathetic to lawbreaking by federal officials, even at the highest level (keep reading). But the law isn't the only factor here. So is raw power and the states have considerably more than they have used so far. Governors can also mobilize the National Guard. Faced with opposition, bullies often turn out to be cowards. (V)