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The Lawfare Podcast
Lawfare Daily: Entrepreneurial Federalism and the New National Security, with Ashley Deeks and Kristen Eichensehr
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- [00:00]
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- [02:09]
Professor Ashley Deeks
What the States are doing in many of these areas, whether it's real estate or TikTok, they are responding to what they're seeing as threats to their own citizens, right? The moves look more defensive rather than offensive. Rather than trying to set a foreign.
- [02:23]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
Policy, it's the lawfare Podcast. I'm Senior Editor Scott R. Andersen here with Professor Ashley Deeks at the University of Virginia School of Law and Professor Kristen Eichenzier of Harvard Law School, if.
- [02:34]
Professor Kristen Eichensehr
You have sort of clear articulations of legal authority, of the nature of the security concerns and the interaction that the states and the federal government see between these two levels of government, that would make it much easier going forward to sort out these kind of inevitable collisions, conflicts at least swerving to avoid each other, that are going to happen going forward.
- [02:57]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
Today we are discussing their latest scholarship on federalism and the new role that states are playing in US national security policy. Kristina Ashley, this is the second time we've had you on the podcast to talk about your scholarship. About a year ago, you were on talking about a piece about frictionless government and foreign relations, about costs and benefits, I think emphasis on the untold benefits of friction in various types of formulating foreign relations. And now you're here to talk to us about another piece that really grows from that sort of thesis, particularly at the federalism level. The title is Federalism and the New National Security coming out in the Harvard Law Review, I think actually already out in the Harvard Law Review now at this point, it's a really interesting piece talking about something that is increasingly in the news that we're seeing all the time about the role the states play in what has conventionally been understood to be one of the big areas of federal authority, and that is national security and particularly foreign relations. So talk to us a little bit about what led you to be interested in this topic and this line of scholarship that you guys are producing. Kristen, I'll start with you.
- [04:02]
Professor Kristen Eichensehr
So this piece, as you mentioned, grows out of the frictionless government piece that we talked to you about just over a year ago. And in that piece, we were really focused on the shift that the United States has made toward economic tools of national security, and particularly thinking in that piece about the response to Russia's invasion of Ukraine and also management of US China relationship. And we were arguing there that this is a circumstance where we're seeing frictionlessness, or what we mean is a lack of inner agency, inner branch, inner party disagreements over a lot of this policy making. And this is it captures sort of a moment in time. There's a periods where we see frictionlessness. And what's the connection to this piece? The federalism angle is that we talked in the frictionless government piece about different actors that could reintroduce friction into the U.S. national security policymaking process. One of those was states. Now in the US China relationship, we are not seeing states introduce friction. If anything, we're seeing states take actions that sort of pile on the federal government actions and exacerbate the frictionlessness. But that led us to be thinking and looking in more detail at what states are actually doing in national security. And when we started looking, we started seeing lots and lots and lots of state actions. And so basically this piece on federalism is an attempt to grapple with this new phenomenon that we're seeing where we have got this incredibly crowded federal level of national security actions, but also a very active sort of canvas when you look at what states are up to. And so we think the federal government and states are on a collision course. And this piece is an attempt to sort of work through the implications of that collision course and try and keep it from colliding and think about how the relationship can be managed going forward.
- [05:41]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So for listeners who might not have spent the time canvassing the volumes of recent state action that you guys canvassed in this piece, Robert Fonz is so closely Talk to us a little about some of the big trends you noted. What are states doing at the state level about particularly China and Russia, this major power competition frame as the big national security, foreign relations concern that you focus on, the peace for the United States. Talk to us about what you're seeing states do and the reactions it's triggering in the courts and elsewhere. Ashley, I'll turn to you for this.
- [06:12]
Professor Ashley Deeks
Sure. And I'll just echo Kristen with a thanks for talking to us about the piece. As Kristen and I were basically prepping for a seminar on economic tools of national security, we did notice, as Kristen just flagged, that we were seeing lots and lots of state activities that definitely caught our eye. And I guess I would say there are four big buckets of state activity, three of them mostly related to China and one related to Russia. So just starting with Russia, we do see a number of big states including New York, New Jersey and California, basically attempting to block their state agencies from doing business with Russian companies after the February 2022 further invasion of Ukraine, basically kind of doubling down on the federal sanctions that the administration, the Biden administration was imposing with regard to the China focused activities. We see a whole bunch of states barring their law enforcement agencies from using foreign made drones and sometimes citing with particularity the use of DJI drones. DJI is a Chinese based company. We saw a number of states restricting Chinese nationals ability to purchase real estate, including in Florida. There's a pretty high profile case that I can mention. We also saw states responding to TikTok and some states prohibited their own officials from downloading TikTok onto work phones. Some go further. And Montana in particular tried to ban TikTok entirely from the state of Montana. There are a couple of other activities in this space. More one off. So Florida, for example, has blocked its universities from engaging in partnerships with China, Russia, Iran, North Korea, and Texas has banned businesses from entering into critical infrastructure contracts with that same group of states. And most recently we saw some states trying to ban their employees or banning their employees from using Deepseek or other Chinese related software. Just one other point. There are some engagements that are more positive. The examples I just described are prohibitory trying to foreclose engagement with these other countries. But famously Gavin Newsom goes to China and has robust and wide ranging conversation with Xi Jinping. We see mayors going to China on trade negotiations and so on. So that's the kind of underlying set of state activities that was motivating the peace.
- [08:59]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
And these are triggering reactions. Obviously, for the most part, these are measures that are regulatory in nature. And so you inevitably have at least a pushback from industry, whatever the industry may be, whether it's real estate dealing, individual business, people trying to do purchases, but potentially as well at times from the federal government may not like parts of this. We're seeing that or we have seen that in the context of TikTok. We're seeing that a little bit in the context of AI now, not necessarily in this national security frame, but certainly in reality. So, Kristen, talk to us about the legal fights we've seen over some of these policies arising from this spike in state level actions of the last couple.
- [09:39]
Professor Kristen Eichensehr
Of years to push back on your framing a little bit. There have certainly been legal fights over some of these issues, but the federal government has been in some ways, I think it's more notable the absence of the federal government in some of these cases. So for example, there was litigation challenging Montana's TikTok ban. The federal government didn't file. So this is a whole case about whether Montana's TikTok ban should be preempted. That was a major part of the litigation and the federal government didn't enter the case. So you've got this, what appears to be and according to the district court, which enjoined Montana's state law, there this sort of question about does this interfere with the federal government's management of foreign relations? And the district court says this is Montana trying to have a foreign policy for the state, but the federal government is absent. So we've actually seen sort of surprising silence from the federal government in a number of These cases where you might expect the federal government to appear in the case to sort of defend their interests. But we have seen, as I said, you know, a number of cases filed challenging these actions, not all of them, but the TikTok litigation is a big one. As Ashley mentioned, there was litigation challenging Florida's real estate law as well. And that, you know, that that has made its way up to the 11th Circuit. So the 11th Circuit in the Shen case in early November affirmed the denial of a preliminary injunction on several of the grounds on which the Florida law had been challenged. And on, on the, the, I think the big purchase restriction that said in particular, Chinese nationals who were at issue in the case could not purchase real property in Florida held that the plaintiffs had no standing. So we don't get a full merits decision there from the 11th Circuit. So we're in some ways, I think at actually a very preliminary stage in the litigation of these questions about the relationship between the states and the federal government on a lot of these national security related issues. We're not getting full resolutions on some of these on the merits. We are not seeing the federal government weigh in. So there's a lot more, I think, litigation coming down the pike on these issues.
- [11:43]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So you all coined a phrase to describe this new trend of entrepreneurial federalism, and it's being added to a rich tapestry of stripes of federalism. I think it's fair to say in the kind of discourse about legal academia and kind of political science, we have ideas of dual federalism kind of operating two different systems. Most conventional view of federalism, I would think, at least from a kind of Civics 101 perspective. Then in the law. We're familiar with cooperative uncooperative federalism, different types of relationship agency between states and the federal government. But you guys really try and distinguish this to some extent to frame this as something a little different happening. Talk to us about what makes it different and why that difference matters in the kind of federalism discourse that we're maybe more familiar with from other issue areas.
- [12:28]
Professor Ashley Deeks
Yeah, so we did take a deep dive into the other either doctrinal or kind of scholarly framings of federalism to see whether this was something new and different or could be slotted into those other categories. And it struck us that it basically did not fit into those other categories. In particular, I think dual federalism has basically died a death a number of decades ago. So that's really not. People don't really think that there's a full separation between the federal government in the states Generally on a lot of areas they legislate on. And in the cooperative and uncooperative federalism frame, the idea is basically that the federal government is delegating certain powers to a state to help it execute a federal program, right? So Medicaid, kind of a famous one. In the kinds of cases we're seeing, these are states acting entirely on their own, not as part of the federal program. And so in some ways being entrepreneurial about this role that they are taking on and the kinds of problems that they are trying to address and doing so in an area that admittedly has been dominated by the federal government. You started off the program by flagging that. We are used to thinking about national security and foreign relations as almost entirely, not entirely, but almost entirely federal. And we're seeing states imposing broader or more stringent or even different requirements from the feds, or even regulating in some areas that the federal government had not at that point regulated. And they're doing it on the basis of their traditional state powers. And these cases look a little different from the kinds of cases that we saw, for example, with Crosby. Right, Crosby, a famous case in which Massachusetts imposes sanctions on actors doing business with Burma, goes to the Supreme Court. There it really is a state doing something that kind of looks like it is establishing its own foreign policy. In this case, what the states are doing in many of these areas, whether it's real estate or TikTok, they are responding to what they're seeing as threats to their own citizens. The moves look more defensive rather than offensive, rather than trying to set a foreign policy. That's why we thought it could be helpful both as a matter of scholarship and maybe also as a matter of guidance to courts that are seeing these new cases come up that we're arguing are slightly different from the kinds of foreign policy slash sanctions type cases that we've seen in the past.
- [15:18]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So the counterpoint, I guess, the legal doctrine that this is all operating under the shadow of is preemption. The fact that the federal government likely could in a lot of these areas, maybe not all of them, but a lot of these areas, enact a federal law regarding national security, foreign relations, and that that would establish the rules of the road, at least. Certainly if Congress expressly said as much, the rules of the road, pushing the states out of the issue area, they haven't done that here. But there's always the temptation as courts look at these laws or as Congress writes these laws to do that. Kristen, you all talk about a great length. I think it's A really useful framework. Some of the bad things that come with preemption, the good things that can come out of the much more complex uncertainty that exists in the absence of any sort of firm position on preemption, either by Congress or the courts in these areas. Walk us through some of those. Why do you find preemption to perhaps be a dangerous inclination for Congress or the courts that leans into that old close, I think, close to that old dual federalism model, saying the federal foreign relations and ask for the federal government and nothing else. What are the problems with that that you see exemplified by these trends?
- [16:29]
Professor Kristen Eichensehr
I think the real risk that we see is largely coming from the courts because as you said, there's a lot of. There's a lot of federal law on the books here. There's a lot of federal regulations, but most of it doesn't directly address preempt. And so courts are being faced with these questions in the first instance of having to figure out the extent to which the state action should be permissible or not. And they're not. They don't have much guidance from Congress and the executive branch over whether there should be preemption or not. And so you've got courts that are faced with states that are doing things that look kind of like national security and kind of like foreign affairs, things that courts traditionally defer to the executive branch on and things that they think of as being national. And so part of what we are concerned about here is judges who get these cases and sort of for reflexively say, kind of fall back on a dual federalism model and say, oh, this is national. And so they disable states from acting in like an entire field of foreign relations or national security. And so that's what we're sort of guarding against. And the reason, the normative underpinning for why we're worried about that does go back to the frictionless government paper where we see, we see two sort of big buckets of things that can be helpful from states. One is that states, as we mentioned already may be able to provide productive friction into federal policymaking. So states could push back, they can dissent, they can do all sorts of things that might help kind of enter into the federal policymaking framework. So that's one bucket of things. The other bucket where we think states can be helpful is instances where they can usefully supplement federal action in some circumstances. So that supplementation can do things like fill gaps in federal law. So areas where the federal government, it's not that the federal government has deliberately chosen not to regulate or made some sort of thoughtful policy calibration, but just areas where the federal government hasn't gotten to it or maybe can't. And there states can actually step in and play a productive role. So to give you maybe just one concrete example, there was an instance where a Chinese company sought to purchase land near a US Military base near Grand Forks, North Dakota. And the CFIUS regulations allow the federal government to regulate land purchases near sensitive facilities. But that particular military base was not on the list of bases that CFIUS was regulating real estate transactions near it. But there was nonetheless a national security concern, and the Grand Forks, North Dakota City council stepped in and blocked the acquisition. Right. So that's a circumstance where like the federal government actually thought, yes, there is a problem here, but they weren't quite nimble enough to be able to regulate as they might have wanted to. So you've got a city council stepping in. There are other examples of that as well, where you can see states doing things like monitoring federal filings about real estate acquisitions and, you know, maybe flagging violations, flagging problems, or basically bolstering enforcement resources in ways we might think are useful. So to the extent that you have judges who are sort of issuing very broad holdings that say states can do nothing in these very broad areas, that would foreclose both this kind of useful supplementation and the productive friction that we think might be possible in future cases.
- [19:44]
Professor Ashley Deeks
And just to give maybe one other example of productive friction, Scott, as you know, there are costs associated with the application of lots of these economic tools of national security. Right. In cfius, if the federal government blocks a deal, that means a company in a particular state may not be able to survive, or when the federal government is imposing tariffs, that goes directly to a whole bunch of companies and individuals inside those states. So there are, I think, situations in which you could have state and local actors really making sure that the federal government is attuned to the financial costs of some of the economic tools that they are now turning to so readily.
- [20:33]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So you all come out of this analysis with a very useful set of prescriptive recommendations, kind of for the three branches and for the states. I don't want to give away the milk, so no one wants the cow of reading the whole article. But I do want to spend a little time talking about some of the high line recommendations. I think they're really interesting and they really weigh on how you all see these branches, these institutions, these officials need be considering some of these questions. So let's start with the courts. Kristen, talk to us about what do you think courts need to take into account from this entrepreneurial federalism trend? How should that impact how they approach their role in weighing preemption and other relevant legal questions?
- [21:14]
Professor Kristen Eichensehr
So we think that judges should consider a few questions that we're pretty specific about in the paper as they approach this analysis. So one thing we think courts should think about is the extent to which the state is asserting that its actions fall within a traditional area of state responsibility. And this is where we think judges need to be attuned to the differences between the legal issues raised by states of foreign affairs activities, which are the subject of a lot of the existing preemption precedents in this area, and those tend to find little or no role for states. And these more recent state national security activities, which are really resting on states police powers. This idea of protecting their citizens. And the line, you know, the line between foreign relations and national security is not a rigid one. But states actions that are focused on direct security threats to their citizens will generally be distinguishable, we think, from those focused on sort of attempting to change the behavior of foreign governments. And so thinking about that, like what is the foundation for the state's claim is important because the Supreme Court has suggested, never held, but it is suggested in past cases that that matters. Are states claiming to be doing something that is a thing states normally do. Are they exercising traditional powers? And then. But we also think that courts need to ask whether States actions are actually credibly linked to the asserted traditional area of state responsibility. It's not a silver bullet if the state just sort of puts up a flag and says traditional area of state responsibility. It could be a pretext for efforts that are actually a state trying to critique foreign power, otherwise interfere with federal foreign policy. So, and we've, we've seen numerous instances, the Supreme Court has done this, which is sort of interesting. They look behind the rationale for state policy in a way that they're, you know, they have in many cases been reluctant to do for the federal executive branch. They will sort of peel back the veil a little bit with respect to states. And so we think judges should be thinking about, is this within an area of traditional state responsibility? Is it actually within an area of traditional state responsibility? Is it drawing on federal national security standards? How much of an interference is this? And this is all aimed at having judges. Our sort of top line recommendation to judges is that when they determine that a state action should be preempted, they should do that, do it using the narrowest preemption theory possible. And that's to avoid displacing more state law than necessary and really leaving states as much running room as possible, while also preempting where they feel it's necessary.
- [23:35]
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Professor Kristen Eichensehr
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- [30:06]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
Let's talk about Congress and the Executive, the two political branches now. And Ashley, I'll turn to you on this. You have actually, I think, kind of dovetailed to some extent interrelated recommendations for how they should approach these issues. Talk to us about how Congress and Executive should be approaching their respective roles in asserting preemption, in identifying and defining preemption, and crafting and enforcing the laws that obviously any sort of preemption determination would be based on.
- [30:31]
Professor Ashley Deeks
Sure. So one thing that Congress obviously could do is it could be more careful and explicit when it is enacting statutes in this vicinity by including express preemption or express anti preemption provisions in those statutes. There are past examples where Congress has decided to do this. Famously in the Sudan setting, Congress decided to enact a statute that basically imposed sanctions on certain types of transactions with Sudan and included a provision that said any state laws that are attempting to do this as well will not be preempted, but requiring the states to notify the Attorney General when they had put such statutes on the books so the federal government able to keep track of what the states are doing. But the states are not being hamstrung. So we encourage Congress to try to do this where it's legislating in an area that it might well envision states wanting to act as well. Another thing we suggest, and this is true both for Congress and the Executive, is to file amicus briefs, especially if they can do so bicamerally. Those really tend to carry the most weight in court. And that's a way for Congress to identify particular costs that state statutes might impose. Or the Executive can also in its briefs, articulate problems that it has seen arise from the existence of state activity. But of course the Executive could do the opposite too. Or Congress could do the opposite too, which is to say, we support states enacting these types of statutes, and at the very least, Congress can clarify its intent when it's legislating. Another thing we suggest is Congress obviously can play a role in facilitating information exchanges between state governments and the executive. So if they're hearing from state governors that a particular type of economic tool is really causing problems inside a state, they can have quiet conversations with members of Congress to articulate what those costs are, and Congress can have conversations with the executive about that or call them up for hearings and so on. One final thing that we do suggest that the executive could do, which is enter into kind of more of a standing, kind of working group relationship with states so the federal government can really articulate what is iipa, what is cfius, what are export controls, why is the federal government imposing these various sets of tools? And hear back from the states. This could be a forum in which the federal government gives some briefings to states about the kinds of threats that the federal government is seeing. But I think think establishing a kind of federal state working group on the economic tools of national security could be a helpful way to allow the states to continue to have some running room while avoiding what we would call unproductive friction.
- [33:44]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So one challenge here that I want to push on a little bit, which is something I do think we have to address or think about how we frame these sorts of Some of these suggestions is the partisan incentive around some of these policy initiatives. I guess this comes into account for the states, too. But let's talk about both Congress and the executive. This is not an era now where all these policies necessarily end at the water's edge, like we once liked, maybe to pretend about US Foreign policy, probably a little bit more of a myth than was ever fully true. But regardless, it's less true now than it's ever been, if it ever was. How does that enter into this position? Taking about the Congress of the executive, I'm thinking particularly about amicus briefs and other public statements that might weigh in a judicial determination about preemption. Is there a way that courts can begin to separate the shaft from the wheat about approaching these sorts of statements to identify? No. Here is actually the preemptive core of intent of a statute or a set of federal policies, because it's not always rooted in a statute. That's important. And here is the one that is being pulled into a partisan political debate over, for example, maybe overreach in China restrictions, which we saw as a flashpoint towards the end of the first Trump administration. That is a real reality that we're wrestling with and a lot of institutions are wrestling with. How does that enter into the toolkit that you all kind of lay out there for the executive and for Congress? Ashley, I'll turn back to you on that.
- [35:09]
Professor Ashley Deeks
So you're absolutely right that we're in a highly bipartisan era. Going back to our original piece on frictionless government, it was particularly interesting to us. And one thing that motivated our piece was the high level of bipartisanship, of concern about the threat posed by the Chinese government and some Chinese tech companies to US national security. So if there's going to be bipartisanship anywhere, it might be that there are still aspects of bipartisanship on the China policy. But you're right that it will be difficult to get a all of Senate brief filed in a particular case. And we are, I think, realistic about that. What I do think would be helpful for courts is for whether it's Congress or the executive to be very specific about the kinds of costs that they are seeing posed by state activity, if those costs exist. So not just writing with a broad brush to say states should be doing nothing in this space, but to be specific by saying things like, like we went to have a negotiation with the Chinese Ministry of Foreign affairs on this particular topic on trying to get Iran to back off its nuclear program, and we spent the first hour of that negotiation explaining, having to explain to China why all of these states had enacted TikTok bans, for example. That would be pretty credible to a court, I think. Right. If we suggest that courts give kind of skidmore deference to these amicus briefs. And so the more concrete that the executive and Congress can be about the costs, the better. And I think Kristen would agree, amicus briefs that just make these sort of broad, sweeping statements about harm are not going to be particularly helpful to the courts.
- [37:03]
Professor Kristen Eichensehr
I completely agree with everything Ashley just said. And I think part of our motivation in writing this paper too, was that the partisan valence of discussions about federalism shifts rapidly. It seems approximately, you know, coincidentally every four years based on two to four years, I believe. Exactly. And I think part of our goal in writing this paper was to nuance those discussions so that we are not in an all or nothing approach here with what states can do. You know, I think there are, as we say in the paper, there are numerous of these state actions that we do think should be preempted, but we don't want to be in a position of saying states, everything states do is bad, or everything states do is Good. We think that that's not the reality. States, states, are they not in it? And we want to have a sort of theory here that we think can last across different partisan divisions. And that may mean at times that courts, using the approach we suggest of preempting, using obstacle preemption, the sort of narrow version of preemption Ashley is suggesting, may preempt more narrowly than partisan Kristen, and partisan Ashley might think is desirable in a particular circumstance. But we can live with that, I think, and we should be willing to live with that because states are doing different things at any point in time, and states vis a vis the federal government is a picture that keeps changing. So we need a theory that is durable enough to last across partisan shifts, both in the federal government and is sort of neutral. Ish. As to what state you're looking at.
- [38:34]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So let's shift to the states then, because you have some specific recommendations for states as they engage in their own police powers, legislative authority, regulatory authority, to building out and acting on this entrepreneurial federalism vision. So what do you recommend for them strategically, legally, about how they go about this role?
- [38:52]
Professor Kristen Eichensehr
Yeah. So with respect to states, too, you know, building on Ashley's point about the federal government being specific about their security concerns, we have sort of that same parallel recommendation with respect to states that they should be specific about the nature of their security concerns and, you know, tie that to traditional state police power. So basically, we think both the federal government and the states could do things to make the legal analysis that judges will have to engage in easier. If you have sort of clear articulations of legal authority of the nature of the security concerns and the interaction that the states and the federal government see between these two levels of government, that would make it much easier going forward to sort out these kind of inevitable collisions, conflicts at least swerving to avoid each other, that are going to happen going forward.
- [39:41]
Professor Ashley Deeks
We also suggest that the states, when they're enacting these statutes, will often do well to link to federal standards. We see that already. We see sometimes states drawing from designations about which countries are state sponsors of terrorism. Those are foreign states that the federal government has already decided pose national security threats. We also have seen in a few places the state statutes tying the termination of the state measures to a termination of the federal measures, so recognizing inside the state statute that the federal government may be speaking to issues comparable to this.
- [40:23]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So that pulls out actually another hypothetical that I think we're seeing in a couple of contexts now, and that may promise to occur a little more on the horizon that I'm curious about the toolkit state should bring to bear, which is is a degree of lack of coordination between the two political branches, between the executive and Congress, about a particular policy that can create real problems for entrepreneurial federalism states might like to exercise. I think TikTok is maybe the best example of this right now, although maybe a little hypothetical in terms of what states actually want to do. We, of course, have a very broad federal law that would seem to have at this point, required the ending of TikTok effectively, if enforced. And you have an executive branch that has claimed the authority to effectively not enforce it. I'm not aware of actually any direct legal challenge to that as of present. But you can imagine if a state like Montana that took at least prior to the enactment of this federal law, the steps to try and take state measures to protect itself from TikTok, might in the future say, well, we want to do that, but now there is actually a stronger case for federal preemption. I don't recall if the TikTok law says anything about it expressly, but there certainly is a stronger case because there is legislation directly on it. And yet I think the executive branch is, is not applying it in a way that actually addresses our needs as a state, and they're preventing us from doing so ourselves through federal preemption. Are there other tools that states can bring to bear? I mean, is this a state standing to initiate a lawsuit case? Is this a space where really your remedies are in the political space? How do you deal with that situation, which is a possibility we're going to see more of because we have an administration right now that's very aggressive in how it's willing to interpret statutes and act on it. And the other availability of other plaintiffs to push back on that in litigation isn't always there. Kristen, I don't know if you have thoughts on that.
- [42:11]
Professor Kristen Eichensehr
Yeah, I do. I mean, I think we've spent a lot of time talking about the litigation over a bunch of these policies. And I think it is, you're right to point out, you know, we haven't seen litigation over some of these very high profile federal issues. And, and you know, you've had some great coverage on lawfare of why that might be the case. So not all of this is going to get worked out in the courts. So I think that does make the political remedies, as you put it, and the interactions between the state officials and the federal officials a big issue here and an important one, like not all of the remedies here are legal ones, and not all of them flow through the courts on the specific issue of Montana and TikTok. So the Montana TikTok law actually is an interesting one because it is one of these laws that it is set to expire at the point at which TikTok is no longer controlled by ByteDance. So the statute specifies that the law is void if TikTok is acquired by or sold to a company that's not incorporated in a state designated as a foreign adversary. So if the TikTok, the qualified divestiture specified under federal law, goes through, then that should. Montana has tied the fate of its law to that. And so, you know, know, that's maybe it's an interesting example, but it goes to the point Ashley made earlier about where we're seeing states that are deliberately tagging their state statutes to some federal control over the policy, whether it's on sanctions issues or TikTok in particular. And I think we're going to see a lot more of these. You know, we obviously there's been recent legislation about drones. That's one area we saw deep seat get taken up in the 2026 National Defense Authorization Act. So you're seeing federal movement on some of issues where we know there's also state action. So that this interaction between how states have especially and particularly structured their laws with respect to particular companies, even, I think, is an area we're going to see more action on going forward.
- [44:04]
Professor Ashley Deeks
It's an interesting question, though, whether, and I agree with Kristen's answer that not everything ends up in litigation. But you could imagine certain states, maybe not Montana, but other states that were concerned about TikTok and maybe enacted statutes that prohibited their own employees from using it, could try to sue the federal government to enforce the pafaca, because I could imagine ways in which they would have standing to do that. We haven't seen it yet. Maybe we won't see it. Maybe we would have seen it by now if it were going to happen. But it's an interesting hypothetical and one we should keep our eye on.
- [44:46]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
So that kind of brings me to another kind of closing thought about this piece, which I found really stimulating, really interesting, pulled together a lot of threads of things that, as I think people who follow a lot of these things have been seeing lots of places. And it's incredibly valuable to have frameworks to think about and orient those things within. But it is interesting because your piece is really written on the assumption, and I think it was a very good assumption, at least until recently. That major power competition is going to be the dominant national security policy frame, particularly in regards to Russia and China and where the dynamics around that have been for the last several years. As you note in your prior piece, and note a little bit here, a little bit of a pushing in the same direction between states and the federal government. There is kind of an assumption that you will see part of the benefit entrepreneurial federalism. All of the benefits of the useful supplementation is the assumption that, well, maybe, maybe states and government and the federal government probably want to push in the same direction, but states may have better ways to do it or have more capabilities to do it in more ways the federal government just can't implement yet. But the last few months we've really seen a reframing of US Particularly foreign policy priorities by the Trump administration international security strategy, which still talks about major powers but really does not put major power competition at the forefront that it was over the last last three national security strategies and if anything is fairly conciliatory towards Russia and China, noting needs to deconflict and come up with balances, but really kind of is emphasizing what I have written and commented on saying kind of spheres of influence. We have the Trump administration, of course, engaging in controversial policies in Venezuela, threatening similar actions in Greenland, Colombia, other places that have a lot less of this degree of consensus around. So I guess the question I would bring to you all is how many of these lessons transfer over to an era where there is much more tension and disagreement between the executive branch, or I should say the federal government and the states and maybe even within parts of the federal government between the executive branch and Congress? Does that change some of the prescriptions? Does it change the emphasis of the prescriptions? Is that something that just shifts things much more to a more conventional, non cooperative federalism sort of of framework? How would you translate a lot of your lessons and prescriptions here to what may not be a major power competition dominated national security agenda for the next three years.
- [47:14]
Professor Ashley Deeks
So I can imagine a couple of different paradigms. One is that US States decide that they still do have certain national security concerns. It's just that the source of those concerns is now coming from other actors beyond Russia, China, maybe Iran. You could imagine some states enacting statutes that implicate Venezuela, for example. And in those cases I think the article still kind of applies the same way. It is, you're right, a different emphasis on which states are being seen by US States as posing threats, but same kind of application. And another thing that could happen is I Think more in line with your hypothetical or your question, which is that we may see state laws starting to look more contradictory to federal policy. And I think, I would say, hopefully the prescriptions in the article, some of the doctrinal analysis still applies. I do think it will make the cases that appear in court even harder for the the courts to wrestle with when they're conducting their preemption analyses. One thing courts always have to ask, basically, even if they're in an obstacle preemption world, certainly in a field preemption world, is state law doing more than just incidentally interfering with federal foreign relations. And the more that the state policy is in contravention of the federal policy, that the more likely it is that a court will find the state law preempted or have to make those hard judgments about what is more than just incidental interference. So we might see more cases that look like that.
- [48:58]
Professor Kristen Eichensehr
Yeah, I think just to echo Ashley's response there, I think we might see a shift among states to being more in the friction category than the supplementing category. To the extent that states are trying to row in a different direction, it's not going to look like supplementation. So, you know, we might see some slippage between useful supplementation and productive friction. But I think that the sort of broader implication of just this phenomenon of states acting in this entrepreneurial federalism way is that 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. So I suspect we are going to continue to see state action, and so that that's, I think, building the case for we're going to continue to see entrepreneurial federalism. Hopefully we've gotten the prescriptions right, and hopefully we've achieved our goal of having the prescriptions be ones that are durable and can survive the changing of political alignments both at the national level and among the states. So we might see it look a little bit different, but I think I'm still comfortable with our prescriptions that what we want to see judges do is be nuanced and careful and not just be sort of saying, this is all field preemptive. It's all for the federal government. They've got to be specific and they've got to be very nuanced.
- [50:14]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
Well, we will have to keep our eyes peeled to see where these issues go. But in the interim, it's an incredibly useful piece of scholarship for orienting your thinking and connecting a lot of these trends together. And I really appreciate you all producing it and sharing it with us. Ashley Deeks Kristen Ekinsera thank you for coming on the Lawfare Podcast.
- [50:31]
Professor Ashley Deeks
Thanks for having us.
- [50:32]
Professor Kristen Eichensehr
Thank you.
- [50:36]
Scott R. Anderson (Senior Editor, Lawfare Podcast Host)
The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare material supporter@lawfaremedia.org support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows including National Security, Allies, the Aftermath and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work@lawfaremedia.org the podcast edit by Jen Patio with audio engineering by me. Our theme song is from Alibi Music and as always, thank you for listening.
- [51:19]
Professor Kristen Eichensehr
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