The Lawfare Podcast
Episode: Lawfare Daily: Entrepreneurial Federalism and the New National Security
Guests: Prof. Ashley Deeks (UVA Law), Prof. Kristen Eichensehr (Harvard Law)
Host: Scott R. Anderson (Lawfare Senior Editor)
Date: January 15, 2026

Episode Overview

This episode investigates the new and growing role of U.S. states in national security policy—an area traditionally dominated by the federal government. Professors Ashley Deeks and Kristen Eichensehr discuss their recent Harvard Law Review article, "Federalism and the New National Security," introducing the concept of "entrepreneurial federalism." The conversation explores state actions on foreign policy and security matters, legal and doctrinal implications, the risks and benefits of this development, and prescriptive recommendations for courts, Congress, executive agencies, and state governments.

Key Discussion Points & Insights

1. The Rise of State Action in National Security [(04:01-06:11)]

• Genesis of Topic: Deeks and Eichensehr's work builds on a prior "frictionless government" study, now focusing on friction introduced (or not) by states in national security.
• Drivers: States are increasingly active in national security domains due to economic tools, China/Russia tensions, and perceived threats to their citizens.
• Thesis: States and the federal government are on a "collision course" requiring thoughtful management.

2. Typology of State Activities [(06:11-08:58)]

Ashley Deeks outlines four main types of state actions:

• 1. Russian Sanctions: States (e.g., NY, NJ, CA) blocking agencies from doing business with Russia post-Ukraine invasion.
• 2. Chinese Drones: States barring law enforcement from using Chinese-made drones, often singling out DJI.
• 3. Real Estate Restrictions: Laws preventing Chinese nationals’ property purchases, notably Florida’s contested statute.
• 4. TikTok Bans: States banning TikTok on government devices (Montana's attempt to ban statewide).
• Other Actions: Blocking university partnerships (FL), infrastructure contract bans (TX), bans on Chinese tech like Deepseek.
• Engagement Spectrum: Includes prohibitory measures and positive engagement (e.g., Gavin Newsom visiting China).

Quote:

"There's a whole bunch of states barring law enforcement agencies from using foreign-made drones... We also saw states responding to TikTok..." — Prof. Ashley Deeks [06:11]

3. Legal and Judicial Responses [(08:58-11:42)]

Kristen Eichensehr explains:

• Litigation Landscape: While legal challenges exist (e.g., the Montana TikTok ban, Florida real estate law), the federal government often remains silent.
• Notable Cases: TikTok litigation (federal government absent), 11th Circuit's non-merits ruling in Florida real estate case.
• Stage: The field is still evolving; most cases are unresolved, more litigation is expected.

Quote:

"It's more notable the absence of the federal government in some of these cases." — Prof. Kristen Eichensehr [09:39]

4. Defining "Entrepreneurial Federalism" [(11:42-15:17)]

• Not Traditional Models: Doesn't fit dual, cooperative, or uncooperative federalism.
  • Not dual: States and federal government often legislate in overlapping domains.
  • Not cooperative/uncooperative: States act independently—not carrying out delegated federal programs.
• Defensive Posture: States primarily act to protect their citizens, not to make offensive foreign policy.

Quote:

"[States] are responding to what they're seeing as threats to their own citizens. The moves look more defensive rather than offensive..." — Prof. Ashley Deeks [02:09, repeated at 12:28, 14:00]

5. Preemption Doctrine & Federal vs. State Power [(15:17-19:44)]

• Preemption as a Risk: Courts risk reverting to "dual federalism," sidelining productive state action in security.
• Productive Friction: State involvement can provide helpful checks and fill federal regulatory gaps (e.g., blocking problematic land sales missed by CFIUS).
• Examples: Grand Forks City Council blocked Chinese land acquisition near a base because federal rules didn't apply.

Quote:

"Part of what we are concerned about here is judges who for reflexively say, 'oh, this is national,' and so they disable states from acting in an entire field of foreign relations or national security."
— Prof. Kristen Eichensehr [16:29]

6. Prescriptive Recommendations

For Courts [(21:14-23:35)]

• Analytic Framework: Courts should:
  • Scrutinize if state actions are within traditional state responsibility.
  • Determine if actions are genuinely for state police powers, not pretext for foreign policy.
  • Use the "narrowest preemption theory possible" to preserve running room for states while stopping direct interference.

Quote:

"Our top line recommendation to judges is that when they determine that a state action should be preempted, they should ... use the narrowest preemption theory possible."
— Prof. Kristen Eichensehr [23:35]

For Congress and the Executive [(30:31-35:09)]

• Clarity in Legislation: Congress should include clear preemption or anti-preemption provisions.
• Amicus Briefs: Both branches should file briefs specifying concrete costs or benefits of state laws to guide courts.
• Communication Forums: Establish ongoing federal-state working groups for info-sharing and coordination, especially on economic security tools.
• Concrete Focus: Avoid generic protests; instead, supply case-specific evidence of costs to guide deference.

Quotes:

"Congress obviously could do ... [is] including express preemption or express anti-preemption provisions..." — Prof. Ashley Deeks [30:31]
"The more concrete that the executive and Congress can be about the costs, the better..." — Prof. Ashley Deeks [35:09]

For States [(38:51-40:23)]

• Specificity & Transparency: Explicitly tie actions to traditional state police powers and detail direct security concerns.
• Coordination: Link state measures to federal standards (e.g., using federal lists of foreign adversaries, tying expiration to federal law changes).

Quotes:

"We have sort of that same parallel recommendation with respect to states that they should be specific about the nature of their security concerns..." — Prof. Kristen Eichensehr [38:51]

7. Navigating Political & Partisan Dynamics [(35:09-38:34)]

• Reality of Partisanship: Acknowledge shifting federal and state alignments; recommendations are designed for durability.
• Courts’ Role: Encourage courts to rely on nuance, not blanket "all-or-nothing" rulings, due to constantly changing political landscapes.

8. Legal/Political Gaps & Future Challenges [(40:23-44:45)]

• When Feds Don’t Enforce: What if Congress passes a law but the executive declines to enforce? The field is open for courts, but many answers remain political rather than legal.
• State Laws Linked to Federal Action: Example: Montana's TikTok ban expires if TikTok's ownership changes per federal direction.

9. Looking Ahead — After Major Power Competition? [(44:45-50:13)]

• Evolving Threats: What if federal priorities shift (e.g., less focus on China/Russia)? State security activism may pivot to other powers or take a more frictional role versus federal policy.
• Institutional Memory: States are building capacity to continue engaging in national security, regardless of shifting federal positions.

Quotes:

"States are building up capacity and muscle memory for acting in these kinds of ways and in these spheres and in ways that touch on national security issues."
— Prof. Kristen Eichensehr [48:58]
"Hopefully we've achieved our goal of having the prescriptions be ones that are durable and can survive the changing of political alignments..."
— Prof. Kristen Eichensehr [48:58]

Notable Quotes & Memorable Moments

• "The moves look more defensive rather than offensive, rather than trying to set a foreign policy."
  — Prof. Ashley Deeks [02:09, 14:00]

• "It's more notable the absence of the federal government in some of these cases."
  — Prof. Kristen Eichensehr [09:39]

• "Our top line recommendation to judges is that when they determine that a state action should be preempted, they should ... do it using the narrowest preemption theory possible."
  — Prof. Kristen Eichensehr [23:35]

• "If you have sort of clear articulations of legal authority, of the nature of the security concerns... that would make it much easier going forward to sort out these kind of inevitable collisions..."
  — Prof. Kristen Eichensehr [38:51]

Timestamps for Major Segments

• 04:01 — Evolution from "frictionless government" to entrepreneurial federalism
• 06:11 — Typology of state activities (drones, TikTok, real estate, sanctions)
• 09:39 — Legal challenges and the federal government's absence in litigation
• 11:42 — Introduction of "entrepreneurial federalism": definitions and distinctions
• 16:29 — Preemption risk and productive friction: Examples and doctrine
• 21:14 — Recommendations for courts: analyzing state authority and preemption
• 30:31 — Recommendations for Congress and the Executive: statutory clarity and communication
• 38:51 — Guidance for states: specificity, transparency, and federal alignment
• 44:45 — Frameworks for changing national security priorities and future of entrepreneurial federalism

Conclusion

This episode offers a sophisticated examination of how and why states are increasingly active in national security domains previously reserved for federal oversight. The concept of "entrepreneurial federalism" is presented as both a challenge and an opportunity, with courts, Congress, executive officials, and states all having distinct but complementary roles. The scholars provide a timely framework for navigating the evolving terrain of security federalism amid shifting political alignments and complex international challenges.

For more, listen to the full episode or read Deeks and Eichensehr’s article in the Harvard Law Review.