Trump Discriminating Against Blue States Sets Up Historic Crisis

President Donald Trump’s funding cutoff is discriminating among the states, punishing blue states and rewarding red states—plainly violating the Constitution and risking political disaster.

On April 1, the Trump administration announced the closure of five of 10 regional offices of the Department of Health and Human Services, in Boston, Chicago, New York City, San Francisco, and Seattle—all cities in states that voted for Kamala Harris in November 2024.

An April 8 executive order targeted blue states—New York, Vermont, and California—for “state overreach” with respect to “illegal” climate change mitigation policies in the energy sector. It announced that such legislation will be identified and eliminated.

A month earlier, Trump announced 10 universities faced a loss of federal funds because they didn’t adequately deal with antisemitism on their campuses—all in states that voted for Harris. Although the Department of Education has since expanded the list to 60 universities across both blue and red states, it remains to be seen whether this administration will proceed with the equal allocation of pain.

Although many of the Trump administration’s funding cuts haven’t discriminated among the states, political pressure from Republicans make it likely that will change. Alabama Sen. Katie Britt (R), for instance, said she agreed with reducing federal spending, but that reductions should spare “groundbreaking research at high-achieving institutions like those in Alabama.” Trump’s retributive impulses could lead him to hear Alabama’s cries, but not those of the blue states.

When blue states are singled out for Trump’s retribution, what can they do about it? The US Supreme Court has been clear that the Constitution requires the federal government treat all states the same.

In Shelby County v. Holder, in 2013, the Supreme Court declared unconstitutional a crucial provision of the Voting Rights Act of 1965 that requires states with a history of racial discrimination in voting to obtain preapproval from the attorney general before changing their election systems.

Chief Justice John Roberts, writing for the court, emphasized the principle of equal state sovereignty, that Congress can’t treat some states differently from others. “Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States,” Roberts wrote.

The preclearance requirement of the Voting Rights Act was unconstitutional, the court held, because “despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties).”

Shelby County allows courts to declare unconstitutional any Trump administration actions that discriminate among the states in allocating federal dollars because of electoral results. But what if the courts fail to stop the discrimination or, worse, what if the Trump administration defies judicial orders?

Using federal dollars to extort concessions and punish perceived adversaries would prompt an unprecedented constitutional crisis. But a disproportionate share of federal dollars come from blue states, potentially giving them leverage too.

Both Massachusetts and California pay more into the federal treasury than they receive from it. States punished by Trump could retaliate by denying the federal government their tax dollars.

Federal taxes are largely collected by employers. In Massachusetts and California, the state is a major employer and could refuse to send tax dollars to the federal government. They also could mandate their local municipalities to follow suit.

A blue state boycott of federal taxes would be unlawful, just as are many of Trump’s shakedowns. And such a conflict would create an enormous crisis for the country—an open battle between the federal government and the states. The fight between the federal government and individual states could fuel the first serious talk of secession since the Civil War.

Talk of secession began long before the Civil War. In 1832, South Carolina passed an ordinance to nullify certain acts of Congress, stating that if the federal government failed to respect this ordinance, the state would be “absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will forthwith proceed to organize a separate government.”

President Andrew Jackson’s response was, “Disunion by armed force is treason.” Abraham Lincoln went further: “Plainly, the central idea of secession, is the essence of anarchy.”

Federal government discrimination toward disfavored states will make citizens wonder whether the benefits of remaining in the union outweigh the costs. There is already an effort for a ballot measure in California asking voters to endorse the idea of secession.

The prospect of a serious secession movement, however unlikely it is to succeed, is frightening. And the fact that voters in one of the most powerful states in the Union are broaching the discussion should force everyone to sit up and consider the risks at hand.

The Constitution is a compact between the people of these United States and our government. It imparts the responsibility on the national government to allocate resources fairly between the states.

A systematic move to punish blue states because they are “disloyal,” or for other capricious reasons, would breach that compact and would put us on a path of grievous harm to this great country and all within it.

Lincoln said, “the central idea of secession is the essence of anarchy.”
He also famously said that “A house divided against itself cannot stand.”

Presidential discrimination among the states is exactly the opposite of what the US needs.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Nancy Gertner is a retired United States District Court Judge, and senior lecturer at Harvard Law School.

David Faigman is the chancellor and dean at the University of California College of the Law, San Francisco (formerly UC Hastings).

Erwin Chemerinsky is dean at the University of California, Berkeley School of Law.

Write for Us: Author Guidelines