I’ve gotten a number of helpful responses to my post from earlier today about the necessity of escalating the question of whether the White House will try to deploy ICE agents to interfere with the 2026 midterm elections. In the course of follow up on a few points readers had made I found a piece of model legislation published on March 9th by the Brennan Center. (If you don’t know about the Brennan Center they operate at the pinnacle level in terms of competence, expertise, reliability. They are perhaps a bit more conventional in their thinking – in terms of the law – than I am. But that’s not a criticism. You need people working in many different lanes to save a country.) Model legislation is a generic piece of legislation that state legislatures can pass whole or pass with their own fine-tuning. A lot of the drafting leg work is done by the creator of the model. So it can be done quickly and well, so long as the model legislation is good.
This seems very good to me. Let me explain.
There are already federal laws that ban soldiers or armed federal agents at polling stations. But since Trump owns federal law enforcement that doesn’t really matter. What this model does is recommend states pass their own state laws which follow the language of those federal laws as closely as possible. That accomplishes two critical purposes. The big threat to these kinds of defensive state laws is federal supremacy. When state and federal power or law come into conflict federal law is supreme. But only when the federal government or federal authorities are acting in a constitutional and lawful capacity. Since these new state laws would only be outlawing what is already against federal law they are only outlawing actions which by definition cannot be lawful. Approaching the problem in this way, by mimicking these seldom discussed or used federal laws, disposes of the supremacy clause issue categorically and elegantly. State officials are now on solid enforcement grounds. Additionally, individual federal officials only have criminal immunity if they are acting lawfully. The model law also creates a civil cause of action which citizens can use to sue federal officials from violating their rights.
There are other details about the strategy and theory behind this approach you can find on the page which has the text of the model law. Definitely read it if you’re interested and certainly read it if you serve in a state legislature or are part of an activist group which might lobby state officials to pass such a law.
This isn’t one and done. I think this is one of a number of legislative and executive actions states should be undertaking now. But this is a very good and necessary place to start. And from my non-lawyer perspective it looks very robust in conventional terms. When I say ‘conventional’ I mean that I also favor more aggressive tactics. The separate sovereignties of the states have very expansive powers to defend the democratic rights of their citizens and the federal constitution when a criminal and anti-constitutional executive is trampling them. But these are extraordinary arguments. Most people aren’t thinking in those terms yet. This approach accomplishes a lot of what you want to accomplish in very conventional legal terms. So every state should absolutely do it as a big and firs step.
One other point I want to make. Don’t be over literal about what the law accomplishes. It empowers state executive officials to block criminal executive branch interference. It gives state legal officials the power to indict federal officers for that criminal interference. But it also begins the critical process of taking power over the whole question back into the hands of the states which lawfully run elections. The passage of such laws would become news stories in every state they were passed in. It would put state Republican law makers on the spot to explain why they won’t support such unobjectionable legal language. Again, this is all already illegal at the federal level. It begins the shift the entire debate. It’s the democratic forces in the Free States taking the matter to the criminal executive rather than waiting passively on the latter to decide when and on what terms to act. It energizes the opposition and begins fleshing out how a criminal executive could try to reach his hand into the states, how the states can resist those efforts and the legal and operational specifics of how it would play out.
I’ll write more on the importance of this in the coming days. But for now, it’s you want to do something, get your state to pass this law. Get your local Indivisible chapter involved. Call your local representatives. This is really important it’s something you can do right now.