Federalism by Extortion Comes to Minneapolis

Photo by Chad Davis, CC BY 4.0, Wikimedia Commons

It is hard to think of a more extreme example of a federal government effort to “commandeer” state or local government action than the Department of Homeland Security’s “Operation Metro Surge” in the Twin Cities. President Trump and AG Bondi disapprove of policy decisions made by Minnesota and Minneapolis elected officials, from the way they have chosen to prosecute federal benefits fraud cases to their limitations on cooperation with immigration enforcement agencies. So in order to coerce Governor Tim Walz or Mayor Jacob Frey to comply with its preferred policies, the Trump administration has deployed thousands of ICE and CBP agents to terrorize the people who voted for them (and who largely did not vote for Trump). On this reading, Minnesota’s lawsuit alleging, among other things, that Operation Metro Surge violates the Tenth Amendment’s prohibition on commandeering should be a slam dunk for the state.

So why did Judge Katherine Menendez (a Biden appointee) deny the state’s request for a preliminary injunction kicking ICE out of its borders? As DHS has conducted its deadly operations in Minnesota, I’ve been continuing to think about the Trump 2.0 phenomenon that in a previous blog post I described as “federalism by extortion”: its preference to conduct its intergovernmental relations using threats of extraordinary punishments. Understanding the novelty of the Trump administration’s assault on state and local governments reveals some important limits of established federalism doctrine, making the prospects for judicial relief in these circumstances look more fleeting than one might have assumed. 

Judge Mendendez’s January 31 opinion is a case in point. To start, she expressed some doubt that Operation Metro Surge falls within the scope of the Tenth Amendment’s anticommandeering doctrine at all. As she points out, all of the cases in which the Supreme Court has upheld this doctrine involve states’ challenges to acts of Congress. According to the Court, these statutes—as Justice Scalia wrote of the Brady Handgun Violence Prevention Act in Printz v. United States—improperly sought to “direct” state officials “to participate … in the administration of a federally enacted regulatory scheme.” Operation Metro Surge, of course, is not an act of Congress, but (ostensibly) a law enforcement action by an Executive Branch agency.

Judge Menendez did not go so far as to endorse the view that this prohibition on commandeering exempts the Executive Branch entirely. But she did conclude that applying this doctrine to an operation by a federal law enforcement agency would be “unprecedented,” and declined to extend the law in this way at the preliminary injunction stage. She also articulated various other concerns with the prospect of a judge enjoining law enforcement actions: from the worry that this might exceed her equitable authority or the state’s standing under United States v. Texas, to the possibility that scrutiny over agencies’ motivation might “venture into a uniquely controversial political question.”

A “surge” of armed federal agents might seem on its face to be far more coercive than anything at stake in the Supreme Court’s anticommandeering and related case law. Chief Justice Roberts in NFIB v. Sebelius described the Affordable Care Act’s Medicaid expansion as a “gun to the head,” but try telling that to Renee Good, Julio Sosa Celis, or Alex Pretti. But it is not obviously clear—at least not obviously enough to secure preliminary relief that could put an end to the operation—that this kind of law enforcement action falls within the scope of constitutional doctrine designed to protect states from federal coercion.

Even assuming that the anticommandeering doctrine does ultimately cover this kind of federal government behavior, this case reveals a further difficulty in applying established federalism paradigms to the Trump administration’s exercise of federal power. Although I might not be as hesitant as Judge Menendez to credit DHS’s argument that its goal was simply to enforce the law, there is an important sense in which Operation Metro Surge is also not really an attempt to commandeer state and local cooperation with immigration enforcement. Of course, this is straightforwardly what Trump administration officials such as Pam Bondi or Tom Homan have said in public. But it is hard to take seriously the notion that Governor Walz or Mayor Frey could have avoided this operation, or could even end it now, by agreeing to assist ICE. In fact, despite the administration’s characterization of Minnesota as a “sanctuary” jurisdiction, the state already has a law requiring officials to notify ICE when noncitizens with felony convictions are released, and plenty of Minnesota counties voluntarily hold noncitizens in custody at ICE’s request.

In my view, the Trump administration did not choose Minnesota or Minneapolis as a target because it wanted to “commandeer” their participation in the federal immigration enforcement scheme. Rather, it wanted to punish them not only for their pre-existing immigration policy choices, but also for unrelated political reasons: for example, because the state’s governor was Kamala Harris’s running mate, or because the city is home to a large population of Somali Americans and was the site of George Floyd’s murder. As President Trump helpfully clarified, Operation Metro Surge was meant as a “DAY OF RECKONING & RETRIBUTION” for members of a political community cast as the administration’s political enemies.

Federalism by extortion is a flexible and opportunistic mode of governance. Clearly, the administration is happy to see some local governments—such as Louisville, Baltimore, or Memphis—cave to its pressure tactics and cooperate with its aims. But practitioners of federalism by extortion do not simply target jurisdictions they believe might be unable to refuse their offers. They also go after places they expect to refuse those offers, since this provides an opportunity to demonstrate the administration’s resolve to dole out punishment. By pursuing either of these two aims (i.e. seeking concessions or publicly imposing punishments), the administration also works towards a third, which is to change the cost-benefit calculus for jurisdictions that are not direct targets. All state and local government leaders now have to account for the possibility that they might be next, and weigh the risk of punishment against the rewards of compliance.

None of this is to say that constitutional federalism protections should not apply to something like Operation Metro Surge. Courts could very well take at face value Bondi and Homan’s surface-level attempts to compel immigration cooperation using the threat of an ICE invasion. Judge Menendez certainly left herself room to conclude that this is unconstitutional commandeering—though only at a later date, after DHS may have already ended the operation of its own accord.

The point is that existing doctrine may not be up to the task of restraining the Trump administration’s federalism by extortion. This doctrine may have worked given the assumption of a federal government that is interested in building a coherent regulatory program, setting the terms on which it can seek states’ participation. A world in which federal power seeks to subjugate state and local governments as political enemies requires a new constitutional theory of federalism—if this is a world where constitutional constraints apply at all.

Cross-posted at Dorf on Law

Continue ReadingFederalism by Extortion Comes to Minneapolis

House Retirements and Targeted Districts

While a substantial number of members of the House of Representatives are retiring, don’t expect these retirements to produce many flipped seats or shifts in the ideological makeup of either party.

As of January 13, 47 members of the House have announced their retirement, 21 Democrats and 26 Republicans. (I’m not counting resignations by Majorie Taylor Greene and Mikie Sherrill whose seats will be filled with special elections this year.)

The retirement rate has been running a bit ahead of recent cycles as of this date, which were 42, 34, 41, and 40 from 2018 to 2024. Still, I don’t think we are seeing extraordinarily high levels of retirements, as some commentary suggests. In the end those previous four cycles produced totals of 52, 36, 49 and 45 retirements, suggesting we may end up in the mid-to-upper 50s this year. Past retirements are from Ballotpedia.org.

The main point I want to make here is that the retirements are spread pretty widely throughout both Republican and Democratic caucuses by ideology and 2024 vote margin. The solid dots are retiring members. These are not endangered incumbents who barely scraped by in 2024, nor are they ideological outliers relative to their caucuses.

The figure shows all House members by vote margin and by left-right ideology, using Nokken-Poole dimension 1 ideology scores from VoteView.com. These scores are based on roll call votes by the members. Nokken-Poole is a variant of the widely used Nominate scores. Nokken-Poole scores range from -0.848 for the most liberal member to 0.986 for the most conservative member. Vote margin is the percentage for the Republican candidate minus the percentage for the Democrat, so negative margins are Democratic wins and positive ones are Republican victories.

Among Republicans, the median 2024 vote margin is 28.2 percentage points, and the median for retiring Republicans is 26.1 points. On ideology, the median Nokken-Poole score is 0.542 (higher scores are more conservative.) Among retiring Republicans the median is 0.581

Democratic retirees have somewhat larger vote margins, -36.8 percentage points, than their caucus as a whole, -27.0 points. On ideology, the retiring Democrats are also more liberal, -0.461, than the full Democratic caucus, -0.394. These are modest differences, however, and the figure makes clear retirements are well scattered throughout both caucuses.

The upshot of this distribution of retirements is that it does not open up many opportunities for turnover as most retirees enjoyed reasonably secure margins in 2024. Nor are retirements likely to significantly shift the ideological balance in the House given that retirees are ideologically pretty representative of their caucuses. While open races are less predictable than incumbent ones, the strong partisan lean of most of these districts means we should expect no more than a handful of these seats to potentially flip.

DCCC and NRCC target districts

Both the Democratic Congressional Campaign Committe (DCCC) and the National Republican Congressional Committee (NRCC) have released lists of districts being targeted as pick up opportunities. Compare this figure with the retirements above. The targeted districts are, as you would expect, far more concentrated in races that were narrowly decided in 2024. (These lists were released by the NRCC on March 17, and by the DCCC on April 8. They do not include changes or additions after some states redistricted in 2025. These are the members’ districts in the 119th congress.)

Republicans on the DCCC list have a median vote margin of 6.8 percentage points, much closer than the caucus median of 28.2 points. They are also less conservative, 0.384, than the full caucus, 0.542.

Democrats on the NRCC list also had much closer 2024 races, with a median of -3.2 percentage points compared to -27.0 for the full caucus. These Democrats are also less liberal than the caucus, with a median Nokken-Poole score of -0.221 compared to the caucus median of -0.394.

If you are looking for change in the House, look at the districts each of the parties are focusing on. They have a much greater chance of flipping than the seats of retiring members, and would be more likely to remove relatively moderate members of either party. The latter fact will also contribute to polarization in the House. Rather than target ideologically extreme members of the opposition party, both Democats and Republicans target close races, which also happen to be where the most relatively moderate members are.

Continue ReadingHouse Retirements and Targeted Districts

Looking back at 2025 Developments in Wisconsin Water Law and Policy

2025 was a momentous year for water law and policy issues, both in Wisconsin and nationally. In this post, I focus mainly on some Wisconsin-specific developments and then summarize a few national-level issues.

Water use at data centers. The past year saw the emergence of widespread public concern over the environmental impacts of data centers—facilities that store and share vast amounts of data for the internet, artificial intelligence, cloud storage, and related applications and services, resulting in community opposition in some places. By most counts, Wisconsin is already home to more than 40 data centers, with several more in development. Data centers have become controversial because of their effects on the environment; perhaps most prominently, some use significant amounts of water for cooling their sensitive equipment (reportedly millions of gallons per day, in extreme cases). Other data centers have “closed loop” recycled water systems that use much less water but require increased electricity to operate. Of course, water and energy are closely connected – water is required to produce energy, and energy is required to treat and deliver clean water. This means that even those data centers that use recycled water systems have a sizable water footprint, considering the water used at the energy generating facility. Complicating the matter further, some data center developers have required host municipalities to sign nondisclosure agreements that purport to treat water use as a trade secret. Several proposed sites are facing backlash from surrounding communities.

PFAS rulemakings. The Wisconsin Department of Natural Resources (WDNR) is engaged in several rulemaking efforts related to per- and polyfluoroalkyl substances (PFAS). The term “PFAS” encompasses a broad range of chemical compounds, not a single substance.  Since the 1950s, PFAS have been manufactured around the world and widely used in a broad array of products including food packaging, cosmetics, non-stick cookware, and firefighting foam.  Prized for their durability and propensity to repel both oil and water, PFAS do not break down easily in the environment and have been tied to serious risks to human health. PFAS are commonly called “forever chemicals” because of the lack of degradation pathways. 

WDNR’s ongoing regulatory efforts include setting limits for PFAS in groundwater (updates to Wisconsin Administrative Code Chapter NR 140), management of firefighting foam containing PFAS (updates to Chapter NR 159), and bringing Wisconsin drinking water rules for PFAS in line with federal standards (updates to Chapter NR 809). More information about these efforts can be found here on WDNR’s website.

Spills Law. The Wisconsin Supreme Court sided with the WDNR in a dispute over the extent of the agency’s authority to require responsible parties to clean up releases of PFAS and other emerging contaminants under the state’s “Spills Law,” Wis. Stat. s. 292.11. At its core, the Spills Law requires a person who causes the discharge of a “hazardous substance” (or who possesses or controls a hazardous substance that has been discharged) to notify WDNR of the spill and then to “take the actions necessary to restore the environment”—a potentially time-consuming and expensive process.

The central question in the case decided in June, Wisconsin Manufacturers and Commerce, Inc. et al. v. Wisconsin Natural Resources Board, et al., arose over whether WDNR could continue its historical practice of identifying “hazardous substances” on a case-by-case basis, or whether it had to engage in administrative rulemaking to create a list identifying which substances it considered hazardous, and at what quantities or concentrations in the environment. The rulemaking process is lengthy and often controversial, so a decision against DNR would have posed substantial challenges for it, potentially eliminating its ability to respond in real time to spills of emerging contaminants. On the other hand, a list of hazardous substances would provide predictability and certainty to parties responsible for cleanups under the Spills Law.

The supreme court held in DNR’s favor that the agency could continue its practice of determining whether a release involved a “hazardous substance” based on the individual circumstances of each case. The court held that the statute’s “broad and open-ended” definition of “hazardous substance” is cabined by the requirement that the substance significantly increase mortality or contribute to serious illness in humans, or that it may pose a substantial hazard to human health or the environment.

In considering how the Spills Law works, context is important, the court observed: “a gallon of milk spilled into Lake Michigan may not ‘pose a substantial present or potential hazard to human health or the environment,’ but a 500-gallon tank of beer or milk discharged into a trout stream might well pose [such a hazard] to the stream’s fish and environment.” Thus, the court thought it was critical for DNR to retain some flexibility in interpreting the statute.

Climate litigation and Wisconsin water resources. From constitutional claims that seek to reform the implementation of energy law in the state, to litigation over the federal government’s efforts to claw back funding for the development of renewable energy resources, Wisconsin has become increasingly involved with legal battles over the climate. Interestingly, one of the cases prominently invokes a constitutional doctrine connected to the state’s water resources – the public trust doctrine. Read more about these developments in one of my previous blog posts.

Aftermath of Evers v. Marklein II. This summer the Wisconsin Supreme Court issued its opinion in Evers v. Marklein II, striking down the authority to pause, object to, or suspend administrative rules held by the powerful legislative Joint Committee for Review of Administrative Rules (JCRAR). The basis for the ruling was a rather technical matter: the court held that JCRAR’s authority to block, suspend, and object to administrative rules was tantamount to legislative action, and therefore failed the constitutional requirements of bicameralism (a bill must pass both houses) and presentment (the bill must be provided to the governor for signature). Technical grounds notwithstanding, Evers v. Marklein II appeared to significantly reduce the legislature’s power to check agency action, although it also touched off a new round of political squabbling ultimately leading to Governor Evers suing the legislature all over again.

Ten years of Wisconsin water use data. The WDNR released its annual Report on Water Withdrawals, which gives an overview of the past decade of water withdrawals throughout Wisconsin. In an era of uncertainty over the reliability of information, the report provides very valuable data about water use in Wisconsin.

The DNR summarized the main takeaways from its report as follows:

  • “The largest water withdrawals were for power production, municipal water supply and crop irrigation.
  • In 2024, Wisconsin cities, agricultural operations, businesses, industry and power generation facilities withdrew almost 1.7 trillion gallons from groundwater and surface water sources – the equivalent of just over 1% of the volume of Lake Michigan.
  • Power production was the largest water use category at 73% of the total water in 2024, with municipal supply following at 11%.”

Developments at the federal level have been largely driven by the second Trump administration. Some of these were expected, such as the administration’s proposed rule to narrow the regulatory definition of “waters of the United States” (WOTUS) to better conform with the Supreme Court’s 2023 decision in Sackett v. EPA. The issue is important because it dictates whether a federal permit is required to fill wetlands. Obtaining the permit can be a time consuming and expensive process – but also one that protects a critical environmental resource. Sackett narrowed the class of qualifying waters to traditional waters that are navigable in fact, such as rivers and lakes, and all other waters that have a continuous surface connection to waters in the first category, such that the boundary between them is indistinguishable.

Other developments were mildly surprising, such as the administration’s apparent decision to defend the Biden administration’s lead and copper rule, which had been challenged by water utilities as unreasonable given its establishment of a ten-year deadline for public water systems to replace all lead pipes within their jurisdiction.

Still other developments occurred in the judicial branch, perhaps the most important being the Supreme Court’s opinion in San Francisco v. Environmental Protection Agency. The Clean Water Act generally prohibits the discharge of a pollutant to surface waters, unless the discharger holds a permit issued under the Act. In San Francisco, the U.S. Supreme Court held that EPA lacked the authority to issue what the Court termed “end-result” conditions in those wastewater discharge permits. Those conditions are sometimes known as “narrative” limitations that take the form of a water quality goal when numeric standards are too difficult to quantify. For example, such a condition may prohibit a permittee from “creating pollution, contamination, or nuisance,” or from “causing or contributing to the violation of water quality standards.” The City argued that these standards were too vague to enable compliance. The Court held that “end result” provisions exceeded EPA’s authority because they condition a single discharger’s compliance on whether the receiving waters meet applicable standards. The holding is likely to change permit drafting processes and enforcement actions nationally.  Permits will have to be more detailed and provide more clarity on specific (numeric) effluent standards necessary to avoid impacts to receiving water quality.

Continue ReadingLooking back at 2025 Developments in Wisconsin Water Law and Policy
Newer Posts
Older Posts