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The Democrats hold in their hands constitutional means yet unused to check the Trump regime’s ruthless attempt to impose a police state. That the Democrats thus far have failed to create this oppositional political center of gravity may be because the method has been lost to history, not wielded effectively for 113 years. Focused on the ICE outrages, however, this political instrument can be revived in the 16 states where the Democrats control the governorships and both chambers of the state legislatures, as well as introduced in states with mixed power.
Before the enactment of the 17th amendment in 1913, state legislators and not the voters selected US senators and regarded them frequently as their agents. It was a common practice for legislatures to send what were called “orders of instruction” urging senators and sometimes members of the House of Representatives to take a particular stand on important issues. The orders were not binding, but had significant force given the power of legislatures and political parties to decide who would hold Senate seats. These resolutions were variously called instructions, petitions and memorials.
The resolutions were not incidental to US politics. The practice of instructing senators was taken up by the antislavery movement beginning in the crisis over the admission of Missouri as a slave state in 1821. Northern state legislatures intervened with resolutions in the 1830s instructing members of the Senate as well as the House of Representatives to protest the gag rule by which the southern congressional leaders suppressed antislavery petitions. On the other side, slave states passed resolutions condemning abolitionists and favoring suppression of antislavery literature. After the Mexican War, northern states passed resolutions urging the prohibition of slavery in the territories through a measure called the Wilmot Proviso, which never passed. Congressman Abraham Lincoln voted in favor of it numerous times and declared himself a “Proviso Man”. That idea became the central platform of the new Republican party on which Lincoln was elected in 1860.
Today, state legislative resolutions would have far more political weight than any poll, provide a galvanizing mechanism to drive public opinion, and solidify the states as defenders of basic American rights seeking to safeguard constitutional freedoms and the safety of electoral processes. State resolutions would expose the brazen hypocrisy of the Trump administration as it tramples on the formerly sanctified principles of states’ rights and free speech, and as Trump poses a clear and present danger to free and fair elections in 2026 and 2028.
Using such resolutions, the state legislatures could organize debate within the legislatures, stage public hearings with witnesses and experts, hold legislative votes that force Republicans on the record, conduct signing ceremonies by governors, and send delegations for formal presentations to the Congress. The process would command both local and national media attention, especially since the Democratic-controlled states are among the largest ones and include the media capitals in New York and California. And states could either have varied resolutions or coordinate their language.
Since the beginning of Trump’s second term the Democrats have been operating from a defensive position within the Congress where they are perpetually frustrated as a minority. They have few if any levers of power. They cannot call committee hearings, subpoena witnesses or administration documents, or set the legislative agenda.
Meanwhile, though lower courts have ruled overwhelmingly in state and city suits against Trump’s draconian tactics and policies, the conservative majority on the supreme court has relegated many of those decisions to a legal twilight zone through the “shadow docket” often without offering the slightest rhyme or reason. Their deliberately long-delayed rulings allow Trump the impunity to impose his authoritarian and unconstitutional methods without obstruction.
Of 25 Trump emergency applications in 2025, the supreme court conservatives have ruled in Trump’s favor to stay 20 cases, seven of which without any written explanation. “Trump’s challengers have a 60% win rate in the nearly 240 orders issued by federal district courts,” reported Court Accountability on cases through October 2025. “Trump’s challengers have a 59% win rate across just over 90 orders issued by federal circuit courts … Trump has a 90% win rate in the 23 Supreme Court orders included in our analysis. Virtually every case was decided on the Court’s so-called shadow docket.” In effect, the supreme court engages in a pantomime of judiciousness to serve as Trump’s knowing partner.
State resolutions should not be understood as making a merely symbolic gesture. The politics would be a significant mobilizing factor in the Democratic midterm strategy in elections to the House, the Senate and state legislatures.
In states with a Democratic trifecta (where Democrats control the governorship and both legislative chambers), there are 659 Republican state legislators. Within these Democratic states there are also 38 Republican members of the House, most of them in swing districts. Forcing the Republican state legislators to vote on ICE would place them in a political vice between the intransigent Maga base and the majority of the electorate. This existential predicament would envelop Republican House members as well.
Republican candidates for the Senate would also be confronted to come on the record in states with mixed control. In three states where Senate seats are contested –Michigan, Minnesota and Alaska – Democrats control one of the legislative chambers. In two – Michigan and Minnesota – Democrats hold the governorships.
In Pennsylvania, the Democrats control the governorship and the state House of Representatives, while the Republicans control the state senate by a narrow margin of 27 to 23 seats. Democrats need to flip three of those state senate seats in 2026 to gain control with the Democratic lieutenant governor casting a tie-breaking vote. Four seats are potentially vulnerable. In the US House, Republicans precariously hold four seats from Pennsylvania in highly competitive swing districts, three of which were decided in 2024 by 1, 1.3 and 1.6 points. So far, Republicans on every level in Pennsylvania have been servile before Trump on ICE. Popular Democratic governor Josh Shapiro will run a strong race that will extend down ticket in Pennsylvania.
Hispanic voters are a significant share of voters in four Pennsylvania swing congressional districts, ranging from 20% in the 7th CD to about 7% in the 10th. These voters were crucial to Trump in carrying those districts and the state in 2024 by a slender 1.7% – and with that barely electing a number of wobbly Republican House candidates. Trump increased his vote from 27% of Hispanics in Pennsylvania in 2020 to 41% in 2024. Now, 71% of Hispanics nationally disapprove of Trump, according to a Pew Poll taken in January before the killing of Alex Pretti. Though there is no statewide poll in Pennsylvania, the national trend is reflected there.
In Michigan, three competitive US House seats with sufficient marginal Hispanic voters that could tip them to the Democrats are currently held by Republicans – 4th, 7th and 10th. In Michigan, Trump won 27% of Hispanics in 2020, which he increased to 46% in 2024. Trump won the state by only 1.3 percentage points. Like everywhere else his gains have washed away.
In Arizona, a Democratic governor, Katie Hobbs, presides over a House with a 33 to 27 Republican margin and a senate with a 17 to 13 margin. To flip both chambers Democrats are targeting seven state House and six state senate seats held by Republicans. Two Republican controlled US House seats are also highly competitive. In those districts the Hispanic vote ranges from 10 to 30%. According to an Equis Research poll taken back in September 2025, 35% of the new Trump Hispanic voters in 2024 already disapproved of his performance. Arizona Hispanics in general were profoundly anxious about ICE: 80% concerned about ICE school raids, 67% worried about arresting immigrants without criminal records and 66% about targeting immigrants at courthouses. The sentiment that ICE abuses have aroused has combined with an overwhelming sense of betrayal on the economy to foster a combustible anti-Trump feeling.
For decades, rightwing Republicans have systematically suppressed immigration reform, determined to stoke a divisive issue for partisan advantage rather than to find a solution. They defied President George W Bush in order to defeat a comprehensive bill. On 15 May 2006, Bush delivered a special address to the nation on behalf of the legislation. “Some in this country argue that the solution is to deport every illegal immigrant, and that any proposal short of this amounts to amnesty. I disagree,” he said. “It is neither wise, nor realistic to round up millions of people, many with deep roots in the United States, and send them across the border. There is a rational middle ground between granting an automatic path to citizenship for every illegal immigrant, and a program of mass deportation.” The bipartisan bill co-sponsored by senators Edward M Kennedy and John McCain passed the Senate with 62 votes, including 23 Republicans. But the right wing controlled the Republican House killed it.
President Barack Obama revived immigration reform in 2013. Once again, the bill passed the Senate, this time with 68 votes. But, again, pressure from the Republican right in the House forced the bill to die without ever being brought to a vote on the floor where it likely would have passed.
In 2024, Senate Republican leader Mitch McConnell negotiated a bipartisan agreement with Joe Biden to present a border security and immigration reform bill tied to a foreign aid package. Donald Trump feverishly called senators to threaten them if they voted for it. The Republicans immediately bent to his will and abandoned McConnell. On 6 February 2024, the bill died without a vote. “Why? A simple reason: Donald Trump. Because Donald Trump thinks it’s bad for him politically,” said Biden. Trump would “rather weaponize this issue than actually solve it”.
Throughout his campaign Trump demonized immigrants – “poisoning the blood … animals … not humans … bad genes” – and even spread a fable that they were supposedly “eating the dogs and eating the cats” in an Ohio town. Once in office, Trump launched a draconian and violent offensive under the whip of his sneering deputy Stephen Miller. Trump built up ICE into a massive paramilitary domestic force to deploy against immigrant communities in Democratic states and cities. If there is one issue that defines his nationalism, his quest for racial purity and authoritarian rule, it is nativism. ICE is the boots on the ground of his vision.
On 15 June 2025, in a Truth Social post, Trump made clear that his ICE operations were the tip of the spear of a political strategy: “[W]e must expand efforts to detain and deport Illegal Aliens in America’s largest Cities, such as Los Angeles, Chicago, and New York, where Millions upon Millions of Illegal Aliens reside. These, and other such Cities, are the core of the Democrat Power Center, where they use Illegal Aliens to expand their Voter Base, cheat in Elections, and grow the Welfare State … ”
For years, Republicans rebuffed President George W Bush, Senator John McCain and Majority Leader Mitch McConnell to be able to cling to the immigration issue as a partisan life-raft. Trump made possible his resurrection from the political dead by destroying legislation to resolve the question and instead to incite fear and loathing of immigrants. When he was inaugurated, it was his most popular issue. Now, however, after setting loose ICE, his handling is about as unpopular as his flailing economic policy. A New York Times/Siena poll released on 23 January found 63% disapproved of ICE, 61% believed ICE tactics have “gone too far,” only 26% said they were “about right”, while 11% said they had not gone far enough. Trump’s strongman thuggery has become his glaring weakness.
What might the Democratic statements look like? They could avoid the trap of discussing abolishing ICE, instead advocating its proper limitation that would defang it. They could restore the old bipartisan consensus on how to treat undocumented people that the Republican right has reflexively rejected. They could finally set Democratic politics on the rock of constitutional principle.
Here is suggested language that covers a range of the territory:
The state legislature hereby urges the representatives and senators to the US Congress from this state to take appropriate measures to secure the enactment of a federal law which expressly provides that no federal funds may be authorized, appropriated or used in any way to carry out police activity by any person working for or at the direction of the Immigration and Customs Enforcement (ICE). Authorized ICE activities shall be limited exclusively to measures to secure removal of undocumented persons only in violation of federal criminal law.
Persons who have secured or applied for asylum, are in the process of securing naturalization, or are qualified for Deferred Action for Childhood Arrivals (DACA) as defined as those who have arrived in the US before age 16, lived here since 2007, or have met education or military service requirements, are exempt. ICE agents shall have no authority to violate the fourth amendment, which protects all people within the US against the invasion of their home or seizure of their property without obtaining legal warrants from Article III courts. ICE agents shall not be permitted to use so-called administrative warrants to evade obtaining proper and legal warrants from Article III courts. ICE agents shall have no authority to interfere in any way with lawful protests and assemblies of citizens, or with the public recording of their activities. The Department of Justice shall not inhibit the exercise of freedom of speech and of the press. ICE agents shall be forbidden from deployment on any day on which votes may be cast under applicable state or local law in any state, city or municipality.
Trump, of course, would react by issuing ultimatums to the Democratic states to back down, threaten them with budget cuts, and coerce Republicans to oppose any statements. But the political consequence would only be a more sustained and intense focus on his attempt to create a police state and redound against Republicans.
Trump has based his ICE assaults on the Alien Enemies Act of 1798, which was part of the Alien and Sedition Acts. Under the Sedition Act, dissenting newspaper editors were prosecuted and imprisoned, just as Trump’s Department of Justice has arrested the journalist Don Lemon, while Trump’s ICE paramilitaries surveil protestors and have killed two US citizens, whom officials instantly designated “domestic terrorists”.
When the early United States faced internal attacks on democracy, including the Alien Enemies Act, Thomas Jefferson wrote: “A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles … If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake.”
Flexing the power of state legislatures now offers a golden opportunity for “winning back the principles we have lost”.
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Sidney Blumenthal, former senior adviser to the Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth. He is a Guardian US columnist
