Last week, the New York legislature passed a bill (S6146) requiring state and local officials to provide congressional committees with the President’s state and local tax records upon request of the committee chairs. The bill uses general language, applying to any President and various other federal officials who paid New York taxes, but everyone knows that the state legislators who adopted the bill had President Trump in mind. The bill (which awaits an expected signature from Governor Andrew Cuomo) provides Democrats in Congress with a backup plan in the event that the federal appeals courts or the Supreme Court ultimately shields Trump’s financial data from their investigations.
S6146 followed close on the heels of another bill (S4572) aimed at Trump. S4572 amends New York’s expansive protection against double jeopardy. Under the so-called separate sovereigns rule construing the Fifth Amendment to the federal Constitution, an acquittal on federal charges does not preclude retrial on state charges for the same conduct, and vice-versa. However, New York’s rules of criminal procedure go further: a federal trial blocks subsequent state charges for the same conduct. Some observers therefore worried that President Trump might try to buy the silence of various wrongdoers in his inner circle by pardoning them for federal offenses and thereby providing them with protection against New York charges as well. S4572 provides an exception to New York’s general approach: if, as expected, Governor Cuomo signs the bill, then the recipient of a presidential pardon could face trial in New York for the conduct that gave rise to the pardon.
Are these changes to New York law justified? Writing on Above the Law, Elie Mystal acknowledges that there may be circumstances in which a presidential pardon ought to preclude further prosecution even under state law. He thus concludes that the change is “not ideal. But,” he goes on to say, “we are living under the reign of a criminal president who scoffs at the rule of law. We have to protect ourselves from this man, in any way we can. We’ll worry about the fallout once he’s gone.”
I share both Mystal’s general misgivings and his sense that Trump’s extraordinary norm-breaking may warrant measures that we might abjure in normal times. I suspect many readers also see the New York bills as at best necessary evils. In that spirit, I want to examine an additional set of concerns about the New York bills: that they could set a dangerous precedent for state interference with federal action. After all, any principle that permits a Democratic-controlled state legislature to adopt measures that undercut a Republican President’s position relative to a Democratic-controlled chamber of Congress would likewise permit a state legislature to reciprocate when the party affiliations are reversed. To use Mystal’s term, how much “fallout” will we need to worry about should such measures become routine?
The Role of States in the System of Checks and Balances
The term “checks and balances” usually refers to mechanisms by which the organs of the federal government limit one another. The President commands the armed forces, but Congress declares war and appropriates funds for military (as well as civilian) needs. If the House of Representatives passes a bill, it does not become law without the concurrence of the Senate and the President (or, if the President vetoes, a supermajority of both houses). The courts construe and sometimes strike down the laws Congress passes and the Executive enforces. And so forth.
Yet while the Constitution’s framers designated inter-branch competition as the chief means of checking power, they also foresaw a role for the states. The chief role was as a residual reservoir of power. Citing Federalist No. 51, Justice Anthony Kennedy wrote an important concurrence in a 1995 case, in which he observed that “it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.” The federal government would not be all-powerful, because some powers were reserved to the states.
The framers also expected that states would sometimes pose a direct challenge to the federal government. In Federalist No. 46, James Madison pondered how states might resist what they perceived as oppressive federal measures. He wrote:
The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments [to federal overreaching].
Subsequent U.S. history contains numerous variations on that theme, including: the Virginia and Kentucky Resolutions (opposing the Alien and Sedition Acts); the Confederate argument for secession; echoing sentiment opposing desegregation during the “massive resistance” campaign; the contemporary controversy over so-called sanctuary jurisdictions; and the New York legislature’s latest effort to aid the House in its struggle with the President.
As the diversity of those examples illustrates, state resistance to perceived federal overreaching is neither an unalloyed good nor evil. Much depends on the respective goals of the federal government and the states providing resistance. A state check on federal censorship (as in the Virginia and Kentucky Resolutions) may seem valuable, but it looks much less desirable if it also entails a state check on federal enforcement of civil rights. Put more crudely, it is difficult to tally the costs and benefits of federalism relative to centralization without some sense of whether, over the long term, the states or the federal government will be more likely to pursue policies one favors.
Diagonal Checks and Balances
But wait. Even if the states standing up to the federal government fits into the scheme the framers devised, New York is up to something else. The new bills do not assert the interests of the states against the interests of the federal government; they put the weight of a state behind one branch (actually, one half of one branch) of the federal government and against another branch. This is neither horizontal checks and balances operating among the branches of the federal government, nor vertical checks and balances with the states checking the federal government; it is more like diagonal checks and balances. Is that permissible?
The short answer is sometimes. In the 1995 case of U.S. Term Limits v. Thornton, the voters of Arkansas adopted a state constitutional amendment imposing term limits on the state’s congressional delegation. While not exactly siding with one branch of the federal government over another, Arkansas nonetheless was intervening in congressional matters in a way that broadly resembles the New York bill requiring cooperation with requests for state tax returns. The Supreme Court invalidated the term limits.
Yet the U.S. Term Limits case does not establish a freestanding principle of state non-interference in federal matters. Although there are some such principles, they are limited. In U.S. Term Limits itself, the key fact was that the Constitution’s Article I sets forth the qualifications for members of Congress, and the Court had already held (in a 1969 case involving Representative Adam Clayton Powell, Jr.) that the constitutional list is exclusive.
Other such principles of state non-interference may be inferred from the constitutional structure. That is how Chief Justice John Marshall derived the rule that states cannot tax federal entities in the 1819 case of McCulloch v. Maryland. But the threshold for such inferences is necessarily high. As Marshall wrote in McCulloch, “the power to tax involves the power to destroy.”
Seen in this context, the New York bills are fairly tame. Neither violates any clear constitutional command nor, as in the U.S. Term Limits and Powell cases, any implication from such language. Nor does either New York bill involve anything like a power to destroy. New York was under no federal obligation to provide extra double-jeopardy protection to anyone, so withdrawing some of it raises no serious federal question. Meanwhile, far from limiting any branch or unit of the federal government, the bill requiring state and local compliance with requests from congressional committee chairs is, after all, a requirement of cooperation with the federal government. It may work adversely to the President’s interests, but it does not in any way purport to constrain the President.
Accordingly, we should not conceive of the New York bills as asserting some novel or unconstitutional diagonal power. So far as our system of checks and balances is concerned, we need not even reach Mystal’s question of whether a suspect measure can be justified as a necessary evil. There could be instances of state interference in federal matters that should raise constitutional alarms, but the New York bills are, on that score, innocuous.
