December 05, 2024
Stress-Testing State Power
When Governors and Presidents Diverge on Matters of National Security
Introduction
As the end of the first quarter of the 21st century approaches, the United States’ unique federalist system of government is increasingly relevant as it relates to national security and foreign affairs. The activities of federal, state, and local governments are increasingly intertwined with national security issues, which in modern history have been reserved for federal government leadership and responsibility. This trend is observable through the assertion of existing legal authorities by governors, legislative action taken by state legislators, and litigation driven by state attorneys general.
There are two main ways that states are increasingly engaging in issues touching national security or foreign affairs. The first is by taking action that does or could potentially impact U.S. national security. This includes actions such as litigating against federal government border security and immigration policy implementation, more assertively exercising National Guard authorities to effectuate homeland security policies or conduct law enforcement activities, or engaging in international trade directly with foreign countries, for example during a global pandemic.1 A second method is by taking action in response to an actual or perceived national security threat. This includes actions such as banning state government employees’ access to TikTok, strengthening election security based on threats as reported by the intelligence community (IC), or limiting foreign investment in a state based on national security concerns.2 In short, the interplay between states and the federal government as it relates to national security is undergoing a shift. As Columbia law professor Matthew Waxman has observed, “The federalist macrostructure of our national security system has changed dramatically during the course of our history, and it will continue to evolve.”3
This trend of increasing federalism contrasts with developments during the second half of the 20th century through the early 21st century, a period characterized by tremendous growth in the federal government’s national security enterprise. Milestones from that era include the 1947 National Security Act, which established the Central Intelligence Agency (CIA), and the accompanying growth of the military and intelligence community enterprise. The post-9/11 era saw additional development, growth, and maturation of federal institutions engaged in national security. This era ushered in a new body of federal law and associated institutions created by those laws. These include the creation of the Department of Homeland Security (DHS), which concentrated the operations and activities of 22 agencies into one. It also led to the creation of the Office of the Director of National Intelligence (ODNI), which provides strategic direction, policy development, and management oversight to the other 17 elements of the intelligence community. Meanwhile, throughout this period, the courts afforded substantial deference to the federal government on national security issues and legal authorities.4
The activities of federal, state, and local governments are increasingly intertwined with national security issues, which in modern history have been reserved for federal government leadership and responsibility.
This year, the Securing U.S. Democracy Initiative at the Center for a New American Security (CNAS) began analyzing the impact of increasing federalism on national security with the aim of developing recommendations that address certain practical aspects of this trend. Although there are a variety of areas where potential tensions lie at the intersection of state action and national security policymaking, this initial research report from the first year of work focuses on two specific aspects: (1) the assertion of National Guard authorities in a domestic protest scenario, and (2) the potential impact of a social media ban related to foreign malign influence on elections. A common thread through both subject areas includes a current and evolving national security threat of malign foreign influence. To examine these issues, the CNAS Securing U.S. Democracy Initiative developed and ran two scenario exercises in May 2024 to explore how a clash of legal authorities between the federal government and state governments might play out.5
Participants in the scenario exercises included former senior government officials who previously held roles such as agency heads and general counsels, a former member of Congress, former congressional chief counsels, former senior National Guard leadership and operational-level Guard personnel, a state-level former deputy secretary of state, and national and homeland security experts and practitioners. Many of the participants have held more than one professional position relevant to the issues explored in the exercises. The participants were charged with examining fictional scenarios set in October 2024, one month before the U.S. presidential election. The scenarios roughly assumed the real-world American political landscape as it existed in May 2024, which at that time included a president who was also the presumptive Democratic nominee seeking reelection in November. The governors represented in each exercise matched the political party governing that state in the real world. Accordingly, the Texas governor in Scenario 1 is a Republican; the California governor in Scenario 2 is a Democrat.
This report provides background and analysis on potential tensions that can emerge between state action and national security decision-making in the context of two separate scenario exercises. The goal of the exercises was to better understand the dynamics and decision-making that might occur when state and federal officials disagree about a matter of national security.6 Participants were advised to consider constitutional, legal, and policy factors relevant to each scenario, and to make decisions based on the role to which they were assigned. This report summarizes these tailored exercises and provides insights that emerged from them. The report then provides policy recommendations intended to mitigate the tensions that the exercises suggest can arise when federal and state authorities diverge on issues of national security that were the subject of the scenarios.
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- Ellen M. Gilmer, “U.S. Immigration Policy Dictated by GOP as Biden Thwarted in Court,” Bloomberg Law, June 8, 2022, https://news.bloomberglaw.com/immigration/us-immigration-policy-dictated-by-gop-as-biden-thwarted-in-court; Davis Winkie and James Barragán, “Deplorable Conditions, Unclear Mission: Texas National Guard Troops Call Abbott’s Rushed Border Operation a Disaster,” The Texas Tribune, February 1, 2022, https://www.texastribune.org/2022/02/01/texas-national-guard-border-operation-lone-star-abbott/; and Ariel Shapiro, “Maryland Gov. Hogan Takes Extraordinary Steps to Keep Feds from Confiscating COVID Tests,” Forbes, April 30, 2020, https://www.forbes.com/sites/arielshapiro/2020/04/30/maryland-gov-hogan-takes-extraordinary-steps-to-keep-feds-from-confiscating-covid-tests-trump/. ↩
- Cailey Gleeson, “These 39 States Already Ban TikTok from Government Devices,” Forbes, March 12, 2024, https://www.forbes.com/sites/caileygleeson/2024/03/12/these-39-states-already-ban-tiktok-from-government-devices/; Adrian Fontes, “How Arizona Officials Are Training to Keep the 2024 Election Secure,” AZ Central Opinion, December 21, 2023, https://www.azcentral.com/story/opinion/op-ed/2023/12/21/arizona-training-2024-election-security-ai/71976674007/; and Gregory S. Schneider and Laura Vozzella, “China Fuels Debate in Richmond After Youngkin Slams Door on Battery Plant,” The Washington Post, February 20, 2023, https://www.washingtonpost.com/dc-md-va/2023/02/20/youngkin-china-virginia-ford/. ↩
- Matthew C. Waxman, “National Security Federalism in the Age of Terror,” Stanford Law Review 64, no. 2 (February 2012): 289–350, at 294. See also Laura K. Donohue and Juliette N. Kayyem, “Federalism and the Battle over Counterterrorist Law: State Sovereignty, Criminal Law Enforcement, and National Security,” Studies in Conflict and Terrorism 25, no. 1 (2002): 1–18. ↩
- Laura K. Donohue, “The Limits of National Security,” 48 Am. Crim. L. Rev. 1573-1756 (2011), https://scholarship.law.georgetown.edu/facpub/1010/; Shirin Sinnar, “A Label Covering a ‘Multitude of Sins’: The Harm of National Security Deference,” 136 Harv. L. Rev. F 59, https://harvardlawreview.org/forum/vol-136/a-label-covering-a-multitude-of-sins-the-harm-of-national-security-deference/; and Kristen Eichensehr, “Foreign Affairs Deference After Chevron,” Just Security, June 28, 2024, https://www.justsecurity.org/97317/supreme-court-chevron-loper-bright/. ↩
- This was the first legal-focused scenario exercise run at CNAS, which has a well-established, field-leading national security and defense gaming expertise and capacity, https://www.cnas.org/gaming-lab. ↩
- Throughout the exercises, participants observed the need for professional, nonpolitical civil service personnel and for political leaders who have an understanding of the country’s constitutional framework, norms, and best practices for governance. Many of the participants in the scenario exercise served at some point in nonpolitical government appointments. Some also served later in their careers in political appointments. This depth of experience provided the exercises with shared vision by the participants about how government works when it is working in the public interest. ↩
Author
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Carrie Cordero
Robert M. Gates Senior Fellow
Carrie Cordero is the Robert M. Gates Senior Fellow and General Counsel at CNAS. Her research and writing interests focus on homeland security and intelligence community overs...
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