Discussion about this post

User's avatar
Vitaliy Kubushyn's avatar

I like this critical essay, but I disagree that we have the benefit of structural reforms at the federal level. I'm supportive of Armitage's proposals not as a tool to soft secession, but as leverage against authoritarian takeover.

All 3 branches of the federal government have been captured by fascists and their enablers. More than half of the state governments are in the same hands, and getting more and more entrenched. The federal bureaucracy has been hollowed out and career employees have been replaced with loyalists.

If we don't push back as aggressively as the autocrats, we will get rolled over. Armitage proposes that blue states use their leverage to elicit concessions. For example, trigger laws that withhold tax dollars from the government in case of election interference, legality aside, is a warning with teeth against the next logical step in the authoritarian playbook. Aggressively arresting federal officers that commit crimes directly pushes back against the terror tactics of a budding fascist regime.

Only by resisting in this way do we have any hope of enacting reforms in some post-Trump era. The strictly legal approaches are not enough to stop what is coming.

It will take a generation to repair the damage that's already been done, let alone reform the system for the better. I'm all on board the reform train, I've written articles about it. But a Constitutional Convention is a pipe dream when more than half the states are in gerrymandered fascist supermajorities. Expecting Congress to pass laws or amendments is likewise foolish. Even if they managed to get something through, SCOTUS is in the hands of naked GOP partisans for the next decades. The path to reform is bottom-up, from state ballot initiatives and state-level reform.

The only way I see out of this without soft secession is if these conditions get met.

1. A majority of incumbent Democrats lose their primaries to more combative challengers.

2. The nation votes in a Democratic supermajority, overcoming GOP belligerence, illegal seizures of ballot boxes by ICE, intimidation at the polls, potentially Insurrection Act, etc.

3. The new Dems get seated somehow without Mike Johnson calling the election illegitimate and refusing to seat them.

4. Dems impeach and remove SCOTUS judges and every member of the cabinet including Trump.

5. Dems pass laws stripping power from SCOTUS and the President, call a Constitutional Convention, etc.

The probability of this happening is infinitesimal.

Pterodactyl-Cape's avatar

Hm, I feel like Armitage addresses a lot of your objections in his "Tax Warfare" document. He's pretty upfront about the legal issues.

"Two constitutional principles create the framework for

everything that follows. Understanding both, and especially the tension between them, is essential before considering any action.

The first principle is the anti-commandeering doctrine. Across

three landmark Supreme Court decisions spanning from 1992

to 2018, the Court has held that the federal government cannot

force states to implement or enforce federal programs. In Printz v. United States (1997), Justice Scalia wrote for the majority that the federal government "may neither issue directives requiring the States to address particular problems, nor

command the States' officers...to administer or enforce a

federal regulatory program.

This principle was extended in

Murphy v. NCAA (2018), where Justice Alito wrote that the

anti-commandeering doctrine "is simply the expression of a

fundamental structural decision incorporated into the

Constitution, i.e., the decision to withhold from Congress the

power to issue orders directly to the States.

What this means in practice is that states participate in federal

programs voluntarily, in exchange for federal funding. When

that funding is illegally withheld, or when the federal government fails to honor its obligations, the constitutional basis for state cooperation weakens considerably. States cannot be compelled to serve as administrative arms of federal

enforcement.

The second principle is the Supremacy Clause, as interpreted in McCulloch v. Maryland (1819). Chief Justice Marshall established that states have "no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.

Marshall's famous dictum that "the power to tax is the power to

destroy" created a doctrine of intergovernmental tax immunity

that, while narrowed over subsequent centuries, still prohibits states from actively obstructing federal operations.

This creates genuine constitutional vulnerability for the most aggressive strategies outlined in this guide. We should be honest about that. A full employer escrow mandate would likely be struck down under McCulloch's broad prohibition. But "likely to be struck down" is not the same as "not worth trying."

The Republican legislators who introduced tax escrow bills in 2009 and 2010 knew their proposals faced serious constitutional obstacles. They introduced them anyway. Their playbook has always been to advance aggressive interpretations, force litigation, accept adverse rulings, modify the approach slightly, and try again. Over decades, this strategy has shifted the boundaries of what courts consider acceptable. We are not obligated to fight with one hand tied behind our

backs while they use both.

One further distinction requires acknowledgment. The

precedents that support state opposition, including sanctuary cities, cannabis legalization, and REAL ID, all involve states withdrawing cooperation from federal programs where states

previously participated. Tax escrow is structurally different. States do not currently serve as intermediaries in federal income tax collection. Employers remit directly to the IRS through the Electronic Federal Tax Payment System. A state law redirecting those payments does not withdraw existing cooperation. It interposes state control into a relationship where states have no current role.

This distinction matters legally. The Ninth Circuit's 2024 decision in United States v. King County held that while anti-commandeering protects states from being conscripted into federal enforcement, intergovernmental immunity bars states from obstructing federal operations or discriminating against those with whom the federal government deals. A full employer escrow mandate would almost certainly be characterized as obstruction rather than non-cooperation.

Additionally, 26 U.S.C. § 7501 designates withheld taxes as funds held "in trust for the United States.

These are not state funds or employer funds. They are employee funds held by

employers as trustees for the federal government. A state law redirecting trust property to state control faces not only Supremacy Clause challenges but potential claims of conversion.

None of this means the strategy is worthless. It means we should understand what we are doing. We are not withdrawing cooperation. We are forcing a confrontation over whether states

can leverage their position as employers and regulators, and

whether federal enforcement capacity can actually compel

compliance at scale. That confrontation may clarify constitutional boundaries in ways that inform future action, or it may reveal enforcement weaknesses that create practical leverage regardless of legal outcomes. Either result has strategic value."

17 more comments...

No posts

Ready for more?