Trump power grab on state issues testing U.S. federalist system, experts say

WASHINGTON — President Donald Trump is increasingly trying to exert his power over state issues — arguing recently that he has the authority to govern how states operate elections, how they oversee public safety and how they draw their congressional maps, despite the U.S. Constitution granting those powers to states.

Over the past month, Trump has threatened to deploy state National Guard troops to patrol Chicago, New York City and other Democratic-led cities after launching a federal takeover of the District of Columbia police force. He has also vowed to sign an executive order banning mail-in voting, and he signed an executive order last Monday looking to penalize states, including New York, that have so-called cashless bail laws on their books.

The president and his top aides also reportedly have been pushing several Republican-led state legislatures to remake their congressional maps to carve out more GOP strongholds ahead of the midterm elections.

Trump’s actions are testing the limits of the nation’s federalist system, which was designed by the country’s founders to establish a balance of power between the federal government and the states, said constitutional law experts interviewed by Newsday.

"His efforts are not just plainly unconstitutional according to several Supreme Court precedents, but also aimed at expanding presidential power beyond anything we have ever seen before," said Michael Gerhardt, a constitutional law professor at the University of North Carolina.

Gerhardt said "the framers imagined just the opposite of what Trump is doing by establishing a presidency that has quite limited authority to interfere with state governance."

Trump, speaking at a cabinet meeting last Tuesday, said as president he has "the right to do anything I want to do" as he defended the prospect of deploying National Guard troops to Chicago over the objections of Democratic Illinois Gov. JB Pritzker, who has described Trump’s push to mobilize troops to patrol civilians as a "dangerous power grab."

"If I think our country is in danger — and it is in danger in these cities — I can do it," Trump said, later raising the prospect of sending troops to New York City.

Trump’s interpretation of how he can use his powers as commander in chief in the name of public safety does not "accurately describe executive power" as it was conceived by the nation’s founders, said Meena Bose, director of Hofstra University’s Kalikow Center for the Study of the American Presidency.

"The rule of law governs executive power," Bose told Newsday. "The Trump administration largely seems to be operating on the principle that executive power determines the boundaries of the rule of law."

Eight months into his second term, Trump continues to use the weight of his office to target Democratic-led states, with New York often in his crosshairs. He has sued New York state officials over so-called sanctuary immigration policies that limit cooperation between certain state agencies and federal immigration enforcers, unsuccessfully attempted to stop the state’s congestion pricing plan, tried to claw back federal funding previously allocated by Congress and launched a federal probe into the state Department of Education over its dispute with the Massapequa School District’s use of a Native American mascot.

"The president is trying to assert federal authority in areas where he lacks authority entirely, or if there is authority, you need an act of Congress. He can’t just do it unilaterally," said Michael Dorf, a constitutional law professor at Cornell Law School. Dorf cited as an example Trump’s pledge to withhold previously allocated federal funds from states that do not comply with his executive orders, saying such a move would require congressional approval.

Gov. Kathy Hochul has frequently pushed back against Trump’s actions, while also expressing willingness to work with the administration on issues such as federal funding for mass transit upgrades.

Hochul told reporters this past week that in a recent phone call with Trump she urged him not to send National Guard troops to patrol New York City because she could provide "all the data to show that crime is down."

The "NYPD is doing their job, we did our job in the state legislature to tighten up laws that had gone way too long being loose and not protecting people in this city and in the state," Hochul told reporters at a news conference Tuesday, describing the call held three days earlier.

Asked by reporters about the call, Trump at his cabinet meeting replied, "I get along with Kathy," but he did not dismiss the prospect of mobilizing the National Guard.

"I want to make this friendly, but the places we are talking about happen to be virtually all Democrat-run," said Trump, who this summer ordered U.S. Marines and National Guard troops to quell protests in Los Angeles following widespread immigration raids.

Trump has faced pushback from Democratic governors — California Gov. Gavin Newsom has sued the Trump administration in federal court over its deployment of National Guard troops, and he is pushing forward a congressional redistricting plan favorable to Democrats to counter efforts by Texas and other GOP-led states to carve out more Republican-friendly districts ahead of next year’s midterms.

Newsom and Pritzker, both potential 2028 Democratic presidential candidates, have accused Trump of acting like a "dictator," a label Trump rejected when speaking to reporters in the Oval Office last Monday.

"They say, ‘We don't need them — freedom, freedom. He's a dictator. He's a dictator,’" Trump said of his Democratic critics. "A lot of people are saying, ‘Maybe we'd like a dictator.’ I don't like a dictator. I'm not a dictator. I'm a man with great common sense, and I'm a smart person."

By Laura Figueroa Hernandez

laura.figueroa@newsday.com@Laura_Figueroa

Laura Figueroa Hernandez is the White House correspondent and previously covered New York City politics and government. She joined Newsday in 2012 after covering state and local politics for The Miami Herald.