How do you prevent tyranny and preserve liberty? The framers of the U.S. Constitution set themselves this task when they convened nearly 240 years ago. Their solution — creating formally independent branches of government — rested on the assumption that a restless desire for power was an immovable fixture of human nature. By vesting shared powers in the rival branches like the president’s veto on legislation and Congress’ role in approving executive nominees and control over spending, they thought they could force the branches into conflict if any of them sought to impose its will on the others, or the country.
The abdications of the Republican Congress and conservativeSupreme Court in the past seven months have thoroughly discredited the framers’ assumption about human nature. Partisanship has proved more powerful than the separation of powers.
Presidents this historically unpopular would expect to see dramatic losses in Congress in any free and fair election.
So, it should not surprise us that the last remnant of the Constitution’s system of checks and balances is the one that remains partly in Democratic hands: state governments. The independent authority of state governments enshrined in the Constitution, which enables them to legitimately contest federal power, is what political scientists and legal scholars call federalism. Now it appears that Trump is seeking to extend his successful subversion of Congress and the Supreme Court to overcome federalism as well.
The president’s recent demand that Texas and other Republican-controlled states engage in an irregular mid-decade redistricting effort is an unprecedented incursion into state authority. In Texas, Trump aims to transmute five House seats held by Democrats into five that Republicans could win handily in 2026. Given the chamber’s narrow margin, these five seats alone could determine who controls the House after the midterm elections — regardless of who gets more votes.
This is the key to the entire plot. The president’s party usually loses seats in midterm elections. The Democratic lead on the generic ballot is currently small, but likely large enough to overcome Republicans’ razor-thin majority in the House. Trump is already the most unpopular modern president at this point in a new term — other than himself at this time in his first term. In fact, he is currently more unpopular than he was on the eve of the 2018 midterm election, in which his party lost control of the House. Presidents this historically unpopular would expect to see dramatic losses in Congress in any free and fair election.
But after his loss in the 2020 election and the insurrection of Jan. 6, 2021, Trump seems determined not to allow apparent election losses to again obstruct his power. Though gerrymandering is nearly as old as the United States, Trump is the first president to attempt a nationwide effort to secure his party control of the House by gerrymandering immediately before the election. In the context of the Congress and Supreme Court’s surrender to Trump and his record of election denial, this is best understood as an effort to secure what can only be characterized as autocratic control over all of American government.
Trump is seeking to shield himself from the will of the voters by having his allies redraw legislative districts. It is a familiar strategy of authoritarian governments that seek to masquerade as robust democracies. They change the rules of electoral competition to favor their allies and make it unfairly or impossibly difficult for the opposition to win power.
Trump is seeking to shield himself from the will of the voters by having his allies redraw legislative districts.
None of this is lost on the Texas Democratic legislators who fled the state to prevent the redistricting plan from going through, or the Democratic governors supporting them. California’s Gavin Newsom has clearly signaled he understands the stakes. In a meeting with some of the Texas Democrats, he said, “Donald Trump called up [Texas] Gov. Abbott for one simple reason: to rig the 2026 election.” He characterized the redistricting effort as an “undemocratic” effort to keep Trump in power without meaningful congressional oversight.
New York Gov. Kathy Hochul said the effort was “nothing less than a legal insurrection” and that “if Republicans are willing to rewrite the rules to give themselves an advantage, then they’re leaving us no choice. We must do the same.”
Illinois Gov. JB Pritzker has probably been the most aggressive of the Democratic governors supporting the Texas legislators, promising not only to house them but also to shield them from potential arrest by federal agents. Though it is unclear how serious that danger is, Sen. John Cornyn, R-Texas, said the FBI had agreed to assist in their return and Trump said the FBI “may have to” go get them.
It thus seems that the Texas gerrymander effort and the resulting flight of the state’s Democratic lawmakers may lead to a face-off between a Democratic-controlled state government, or several of them, and federal officials helping to indirectly carry out Trump’s gerrymandering directive. Moreover, all three governors, as well as state legislators in Maryland, have signaled a willingness to consider unprecedented (and often technically difficult) redistricting efforts in their own states to counter Trump’s push. This is federalism in dramatic form.
These governors are signaling that American federalism will not be overthrown as easily as the Congress and Supreme Court. It is impossible to predict how all this will be resolved, but there is considerable reason to think these states will not abjectly surrender like congressional Republicans or the Roberts Court. There’s still a fight to be had here. Thankfully for the Constitution, these Democrats seem willing to have it.
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