How States Can Link Up to Support Human Rights

How can nonprofit leaders and movement activists effectively respond to Trump 2.0, Project 2025, and a right-wing US Supreme Court that appears committed to using federal power to roll back political and economic human rights?

Defending against police state weaponization is imperative. Legal action, resistance, sanctuary, and new underground railroads are emergency initiatives needed to shelter and safeguard the lives of immigrants, women, and transgender people—the risk of violence against scapegoat groups will only increase.

The incoming Trump administration also aims to limit federal agency power regarding social welfare. This might seem like traditional standard conservative fare, but when paired with the regime’s goals of weaponization, it reaches a different threat level. The situation warrants not only a strong defense but also an offense that reimagines federalism by building state collective power through interstate compacts.

By leveraging these compacts, states that share a vision of government as a protector and facilitator of human rights can collectively build robust structures to safeguard political and economic rights, even when federal institutions fail.

The Threat

Human rights encompass the political rights of speech, voting, and liberty, as well as the economic human rights to adequate food, housing, education, health, income security, and work. While federal courts and the US Constitution have traditionally helped protect political rights, federal agencies and programs have gradually advanced aspects of economic rights through entities like the Department of Housing and Urban Development (HUD), Department of Education (DOE), Department of Labor (DOL), Department of Health and Human Services (HHS), the Environmental Protection Agency (EPA), and the Food and Drug Administration (FDA).

However, since 2022, the Supreme Court has overturned precedent on voting rights and women’s liberties—and soon will likely do the same with transgender people. Meanwhile, Project 2025—with clear links between Trump and several Trump appointees who participated in its development—details how to dismantle much of the federal social welfare infrastructure. The Supreme Court’s decision in Loper Bright v. Raimondo to overturn the “Chevron doctrine” of judicial deference to regulatory agencies has opened the door for corporate lobbyists to line up lawsuits to overturn agency policies that favor health and welfare over profit.

Project 2025 is not a scattershot effort. Though some Trump appointees lack experience and familiarity with bureaucracies, Project 2025 distinguishes between executive orders, agency regulations, policy guidance, personnel reorganization, and congressional action—fueled by insider knowledge. It is a clear blueprint to dismantle or repurpose federal agencies and alter their priorities—from disempowering institutions like the Equal Employment Opportunities Commission to attempting to eliminate the Department of Education and politicizing the Department of Justice—subordinating the public good to corporate profit motives. Elon Musk, newly anointed Trump advisor, has echoed Project 2025’s proposal to eliminate the Consumer Financial Protection Bureau—a consumer watchdog against banks, creditors, and payday lenders—in the name of “efficiency.”

Confronting Constitutional Limitations

What paths are available to resist this assault? Progressive action tends to take the national route, fighting through congress and the Supreme Court, but inherent blocks at the federal level are important to acknowledge. We know that the US Constitution’s authors wrestled with the political economy of slavery and made compromises that limit democratic governance to this day. We know, too, that we have a radical, reactionary, conservative Supreme Court that may last a generation.

“We need to be realistic about the political environment and constitutional structures that constrain us, and open to exploring all available options.”

And it’s clear that most of the federal legislation of past decades that sought to protect and fulfill political and economic human rights has fallen woefully short of promise, largely because of a political structure that rewards racism, classism, and sexism lying under the mask of “checks and balances.”

The right-wing reactive project further molds the already lopsided field by using federal power to strip the political rights of selected groups and roll back agency power that has protected and tried to advance economic rights.

The good news: While the US system of checks and balances has long been exalted, we know there are other ways to structure accountability. This playing field was also shaped by state constitutions that are their own sources of political and economic rights, and many states have agencies that mirror the federal, albeit smaller in size and resources.

Finding Constitutional Openings 

In a preelection article in The American Prospect, Arkadi Gerney and Sarah Knight lay out the framework for an offensive strategy, calling for Democratic states to embrace their governing majorities as “affirmative sources of power—and begin to exercise those powers more fully, more effectively, and with greater coordination.” In other words, a progressive response begins with using existing openings at the state level.

States [can lay] the groundwork that protects political rights and advances economic ones through legal instruments known as Interstate Compacts.

A focus at the state level goes against the grain of standard progressive politics. As Gerney and Knight note, “Progressives tend to favor national projects….But, returning to the fundamentals of American government, we need to be realistic about the political environment and constitutional structures that constrain us, and open to exploring all available options.”

States that have similar values about the purpose of government, regardless of where they’re located geographically, should begin thinking about collectively laying the groundwork that protects political rights and advances economic ones through legal instruments known as Interstate Compacts.

The need for this state collectivity may become more compelling as the radical structural changes in the federal government become more apparent in the years ahead. States can go it alone, but business, capital, water, food, and people aren’t confined by state lines. Any policy proposed by one state alone puts that state at a competitive disadvantage with others in attracting and keeping commerce, capital, tax resources, and so on.

Legal Framework for State Collectivity

The Compact Clause of the US Constitution states, “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.” Despite this language, the US Supreme Court has consistently held that only a small fraction of agreements entered by states require approval in the form of federal legislation.

Compacts were used initially to handle boundary and border issues, but they took off in the 1970s when states began using them to address environmental concerns, adoption, Medicaid, child custody placement, and other issues. Few compacts today center on border agreements. Currently, 263 Interstate Compacts exist—you can find each in the National Center for Interstate Compacts Database.

Current compacts include a carbon dioxide cap-and-trade program (Regional Greenhouse Gas Initiative) established in 2009 among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. (Pennsylvania is fighting its own internal legal challenges to participate.)

Another, the 1967 Multistate Tax Compact, governs the state tax treatment of multistate and national enterprises. Although considered advisory, all 50 states participate, and the compact allows businesses the option of a tax calculation based on the compact formula in lieu of that used by a particular state.

The compacts usually involve model legislation that states themselves pass. They can opt out of amending legislation, which California did with the Multistate Tax Compact. Exit by unilateral action by a governor was found unlawful, as Virginia Governor Glenn Youngkin discovered when he attempted, by executive order, to pull the state from the Greenhouse Gas compact.

Some compacts, like the National Popular Vote compact, are conditional—operative only when a certain number of states join.

Compacts and the Courts

As noted above, compacts are often enacted without federal legislation. The lack of congressional approval of these and other compacts is not disabling, as the US Supreme Court test to date for Congressional sign-off has been “whether the Compact enhances state power quoad [with regard to] the National Government.”

The court set this standard in a challenge to the Multistate Tax Compact, where it found that the compact did not give states any powers they didn’t already have, nor did it delegate state sovereign powers to the compact commission. They noted that each state could adopt or reject compact rules and withdraw anytime.

But will this Supreme Court respect that precedent?

The court’s current conservative bloc has fissures, particularly around “originalism” and history. They also have shown a general deference to state rights and power.

State compacts also unearth historical legal questions about the federalism envisioned when we moved from the Articles of Confederation to the Constitution. The most conservative justices appear more comfortable with a pre-Civil War constitutional lens where state power generally prevailed over federal, but this may be the case where nine lawyers have nine different opinions.

Regardless, the Supreme Court can be ignored—though few say it aloud. Much of the South ignored the court’s decision in Brown v. Board of Education, complying only when federalized troops appeared on local schoolhouse steps. This is far different. It’s hard to imagine how the National Guard could mobilize against a compact-created Consumer Financial Protection Bureau that protected participating households from predatory lending, usury fees, and the ravages of speculative capitalism.

Seizing the Opportunity

Entering into state compacts is not a zero-sum game that requires a rejection of the federal government, but an initiative that recognizes and respects different state attitudes about government—and offers a path to survive the federal nihilism planned by reactionaries. Currently, 15 states are under Democratic control (both legislative and gubernatorial). Nine are divided. Twenty-five states cast their electoral votes for Vice President Kamala Harris. There is a significant amount of leverage in these places. In developing these alliances, the strategic mutual interests of Native nations and states also should be recognized and considered. 

While Gerney and Knight encouraged “counteraggression” from blue states against red states on several issues, they also envisioned blue states engaging in a “race to the top.” Blue states might combine to incentivize careers in teaching and healthcare, provide free college tuition to students of modest means, pool resources to address housing shortages, engage in procurement alliances, use pension funds to invest in green energy, bulk-purchase insulin, advance climate justice, and protect reproductive rights.

Progressive policies to meet fundamental human needs will require sharing revenues. While this may seem improbable currently, anticipated federal tax cuts will reduce the already disproportionate revenue blue states contribute to the federal government. When states realize that a return to “normal” federal government is unlikely, political courage and creativity may increase.

For example, affordable housing is a pressing need nationally, but to date, the federal government has side-stepped its fundamental challenge: financial profit. Social housing—such as nonprofit community-led housing—is currently being considered in at least eight states or localities. California is required to produce a social housing plan for state legislative review this year. Colorado, Hawaii, Massachusetts, New York, and Rhode Island, and the cities of Atlanta and Seattle have considered proposals.

Imagine an Interstate Compact where states and localities share revenue to build a social housing sector that is permanently affordable. It may seem far-fetched now, but not if Project 2025’s plan for HUD to sell off public housing and limit housing vouchers is realized.

States can—and should—defend their residents from the coming assault on human rights. But perhaps their attorneys general and leaders should begin paying attention to the refrain of Flo Kennedy—a Black lawyer, feminist, liberationist, and abortion rights activist—“Don’t agonize, organize.” And we’d do well to remember what her colleague in liberation, Willie Baptist, once observed, “You only get what you’re organized to take.”