Over at Talking Points Memo, Josh Marshall has been making the case that the states are critical sites of resistance to Trump’s lawless power grabs on the road to authoritarianism. He was challenged today by a reader who asked him what, specifically, the Blue states can do. Marshall tossed out some ideas: Secure the vote, sure. But we should already expect this, and it’s still a very defensive move, not chipping away at Trump’s expanding power. Withholding taxes collected from state employees from the Federal Government. I am not keen on this, as it is probably illegal. And why wouldn’t Trump retaliate by stopping all Federal payments to California? Arresting masked and out-of-uniform ICE agents who refuse to identify themselves. Maybe, but this could get dangerous very fast.
Strategizing like this is not really my thing. But I have an idea. And I think it could be significant. Over at Vox, Dylan Matthews argues that Trump’s 15% tax on Nvidia’s and AMD’s chip exports to China is flagrantly unconstitutional. It’s not just that Trump lacks any authority from Congress to impose this tax. It’s that Article I, Section 9, Clause 5 of the U.S. Constitution says, “No Tax or Duty shall be laid on Articles exported from any State.” Trump is imposing a duty on a major export from the State of California. This looks like an open-and-shut case, easy to understand.
The difficulty is that Nvidia and AMD have caved on this, because Trump has so many other ways to get back at tech companies if he wants. He could, after all, simply prohibit chip exports to China, which would be perfectly legal. So this is extortion. Nvidia and AMD, although they have legal standing to object to Trump’s illegal tax, and would likely win their case if they filed one, would lose financially from Trump’s retaliation if they filed.
So here’s my idea: Governor Newsom and Attorney General Rob Bonta should sue the Trump administration to stop the 15% export tax on Nvidia’s and AMD’s chip exports to China. I know, I know, neither China nor the big tech companies are popular. But hear me out.
California has its own standing in this case, since Trump is unconstitutionally attacking one of the foundations of California’s–and America’s–prosperity. And the export clause clearly recognizes the stakes that the States have in protecting their own economies.
How then, to turn this against Trump, rather than look like it’s merely a move in support of China and cutting taxes on the tech billionaires?
- Trump can’t credibly argue that he’s punishing China with this tax. He’s punishing California and American businesses. If Chinese access to the chips were truly a national security concern, which is his pretext for meddling with chip exports at all, then he should ban the exports outright. Now that he’s willing to permit the exports, he is in no position to credibly claim that exporting the chips undermines U.S. national security. (Matthews helpfully shows how uncertain the national security case is in any event.)
-
Trump is vulnerable on the trade question. Here he is attacking a U.S. export to China, and he claims he wants to reverse our trade deficit with China? He is making it worse, even when the China rivalry is his signature trade issue. Of course, banning the chip exports altogether would worsen the trade deficit with China even more. But that’s his political bind to deal with, not California’s.
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If Trump can attack one state’s exports with this move, he can attack any state’s exports that way. The Blue states at least have every incentive to line up behind California. But even Red states might find themselves in trouble if there is something Trump wants and threatens an export tax to force submission of a Red state industry. He has already shown he’s willing to damage Red state economies a lot, with Medicaid cuts, elimination of IRA subsidies, other attacks on green energy, retaliatory tariffs other countries have put on U.S. agricultural exports, and more. Even if they don’t join California’s suit, I bet they will quietly hope that California files and wins. Newsom and Bonta need to highlight how California is fighting to shield all the states from Trump’s destructive and illegal action. Trump’s tax is not just lawless, it’s extortion, and Democrats are fighting this.
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The export tax should be made part of a more general case that Trump is destroying many of our major export industries. On top of tech, his other policies are destroying agriculture, tourism, and higher education–all sources of huge foreign spending. Democrats should show that they are taking a stand against Trump’s economic destruction.
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This is a significant act of resistance. It’s a direct attack on Trump’s extortionate abuse of Presidential power, and promises to claw some of it back. Of course, it is possible that our corrupt Supreme Court will find a way to give Trump what he wants. But that will expose how corrupt the Court really is. Democrats need to back the Supremes into a corner, too, since the Court is deeply complicit in Trump’s authoritarian moves. If the Court even grants an emergency stay on a lower court order stopping the tax, Newsom and Bonta should be yelling very loudly that the Court is corrupt. The Constitutional language is clear and straightforward. And so is the argument that strengthening U.S. exports is good for the American economy. Everyone’s eyes would glaze over from Trump or the Court’s attempts to explain how this is legally ok and good for America.
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Newsom and Bonta could put a catchy phrase on Trump’s export tax: he is putting America last. In a head-to-head competition with China, Trump is handing China a victory in depriving U.S. tech of much-needed revenues for further investment in AI. And all because he wants to raise taxes on American business?
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Most important from a mobilization perspective, Democrats are in a funk about what to do and voters are rightly angry at them for being feckless and weak. A move like this, taking the battle into Trump’s territory rather than defensively crouching in one’s own, could help Dems get some energy and confidence for further resistance. And this is an unusual case where a Democratic initiative can be framed equally powerfully across the ideological spectrum and across Blue and Red districts. To the left and deep Blue districts: We are stopping Trump’s authoritarian moves and clawing back the power he has grabbed. We are the resistance. To moderates: We are upholding the Constitution against a lawless power grab (and possibly a corrupt Court). We are defending the economy against Trump’s extortion. To the center-right voters and Blue districts: We have your back. We stand for a strong economy, increased exports, good jobs, and securing businesses against extortionate taxes and state bullying.
The issue at stake here is not lower taxes on business. It’s about stopping illegal, authoritarian bullying and rebuilding d(D)emocratic power and energy with action, not just words.
{ 13 comments }
Mike Huben 08.21.25 at 10:53 am
“No Tax or Duty shall be laid on Articles exported from any State.” Does this mean exported to another state, exported outside the USA, or both? I’m sure that the bastards will claim it is only the first. On the other hand, I have zero knowledge of the case law and precedents on this issue.
Liz Anderson 08.21.25 at 2:28 pm
There is no serious question that it refers to exports anywhere. Of course, there is a long history of conservatives claiming that unqualified words are really qualified. Robert Bork argued that the Equal Protection clause “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws” really limits “any person” to blacks, or black men, or maybe “any person on account of their race.” Similarly with the Citizenship Clause “All persons born or naturalized in the United States,” which supposedly omits the children of immigrants who have not naturalized.
ice 08.21.25 at 2:30 pm
Sure, sue, but it will have negligible impact on the general public. It’s wonky analysis of economics, industry and law at a level that 97% of Americans not only don’t understand, but don’t care if they understand.
Additionally, for the people who despise Trump (and there are many of us), this is not why. I’ve had countless conversations with friends about how terrible he is, and in so many ways, and yet we’ve never touched on this particular subject.
Even in a best-case scenario, where there’s a successful challenge in court that takes less than 18 months to be resolved and somehow gets reported in the news – Trump doesn’t really care. He just moves on to a different attempted punishment of his “enemies”.
I’m neither a nihilist nor an accelerationist. I haven’t given up and don’t plan to anytime soon. Nevertheless, this really isn’t the way to get the country back on track. What’s needed is a simple but clear way to communicate to the large demographic exactly how and why Trump’s general approach to presidenting is so damaging both to the country at large and their lives specifically. You’re a professor, right? Ask your students what they think would work.
RobinM 08.21.25 at 2:34 pm
I must confess I don’t see the point of this sort of armchair politicking, especially the sort that focusses on a single indvidual as if he was actually in and of himself the problem. Wouldn’t time and energy be better spent exploring why and how the USA is in the political condition it is in—and that would include why and how the Republicans fell such easy victims to the MAGA crowd and why the Democrats have collapsed and are collapsing even more. (This last point refers to today’s NYT account of the ongoing decline in Democratic registration nos.)
What’s more, how does this “we have your back” rhetoric position “us”? Who is this “we” and where are “we” situated? “We” are, seemingly, above it all. “Liberal internationalism” having collapsed, “we” are now turning to a similar sort of liberal domesticism? I hope not.
Surely something larger than mere electioneering fiddling is underway? Surely something larger than mere electioneering fiddling is called for?
Cheez Whiz 08.21.25 at 4:24 pm
Any form of physical confrontation is going to get “dangerous very fast”, if only because an excuse and justification for violent repression (you think its violent now, just wait until they open fire) is what this administration craves above all else. It is a no-turning-back moment where no one knows what comes after, other than very, very ungood.
And sure, throw another lawsuit on the fire. But its hardly a radical or new idea. There’s no clear or agreed-on picture of what “fighting back” looks like beyond something more than what’s being done now. I’m seeing more calls for (other people to engage in) direct physical attacks, but that’s just impotent frustration talking.
Peter Dorman 08.21.25 at 4:38 pm
From a purely legal point of view, I think the fuzzy part would be standing.
Politically, it looks pretty tiny to me. You could win this one, and I don’t see how it would affect the wider balance (and drift) of power. If the erstwhile institutions of democracy — courts and elections — can’t stem the tide, it comes down to force, one way or another. Mass civil disobedience or (gulp) confrontations between state/local and federal law enforcement. I’d like to be wrong, but this strikes me as ineluctable.
Chetan Murthy 08.21.25 at 5:05 pm
I am reminded of those lines from A Man For All Seasons:
The mistake is in thinking that the Devil is bound by any laws whatsoever. Put differently:
You cannot effectively resist a lawless Federal government while yourself obeying the law. The Supremacy Clause (of the Constitution) ensures that.
And since we’re not going to see any of these states break the law (e.g. start arresting ICE agents), my hopes repose entirely in economic and natural disasters.
When 25% of the workforce is out of work, when multiple hurricanes bash the Gulf Coast and thousands of Texans are missing and presumed dead, and Trump is doing jack and shit about it, maybe, just maybe America will wake up.
Tim Worstall 08.21.25 at 5:05 pm
Hmm.
” Trump is imposing a duty on a major export from the State of California.”
Not sure Nvidia actually makes ships, does it? They’re all made by TSMC? Nvidia is fabless, no?
Agreed, agreed, what makes the chips valuable is the design, the IP, which is from California. Just as iPhones are made in CA more than anywhere else if we measure by value, as we should.
But I can imagine people running around saying that as the TSMC plant is in Taiwan – or Phoenix I think there’s one etc? – then it’s not a CA export. That this then clashes with the assumption that the US itself can place export controls on something fabbed in Taiwan, well, I’m sure lawyers could find a way around that one.
I think Trump’s idea is idiocy myself too. But I’m not wholly certain that something not physically made in California is going to fly as an exemplar of not being allowed to tax exports from CA.
pfb 08.21.25 at 5:39 pm
“Withholding taxes collected from state employees from the Federal Government… is probably illegal.” Yes, and?
“And why wouldn’t Trump retaliate by stopping all Federal payments to California?” You do know that California pays far more into the US Treasury than it gets back, right? And that the administration has already been gutting payments to California, and openly talks about doing more?
Stopping state payments to the federal government would be indistinguishable from secession, and would plunge the country into actual civil war. The question is not “is this particular act of resistance legal”, but rather “is life as a Californian within the Union distinguishable from life under foreign occupation.” I’m inclined to agree we’re not there yet. But I can also see which way the wind is blowing.
I know this sounds like overheated ranting…but do you actually listen to what Trump and Vance and Miller and actually say? About arresting our elected leaders? About occupying our cities? About shipping large numbers of us to concentration camps?
somebody who remembers the federal enforcement mechanisms have all been ripped out for copper wire 08.21.25 at 9:52 pm
There’s plenty of things that can be done:
state environmental regulators can simply adopt the regulations that trump is throwing in the shredder, indicating they were destroyed illegally and until the feds recover their senses, they will enforce them. let the tech companies who want to poison the water all move to florida
state child welfare agencies can indicate that they will indeed investigate any allegations of abuse or neglect of trans youth instead of arresting all of them and sending them to conversion camps, and make the federal government do the seizing – a government that has no foster care system and no child welfare agencies
state national guard callups can be refused or slow-walked or even maliciously complied.
remember that DOGE completely eliminated the power of the federal government to do anything other than send ICE guys to shoot people (and you’re going to start seeing in the next few weeks how little they’re able to even do that). state governments still do the law enforcing and health inspecting and have taxing power, etc.
Adam Roberts 08.22.25 at 8:02 am
Trump three times said he was meeting Putin “in Russia” when he was actually meeting him in Alaska. Why didn’t Democrats leap on that? Push: “a lot of people are saying” that Trump has made a secret deal to give Putin Alaska, in return for peace in Ukraine and Trump getting his Nobel Prize: Putin has “historical claims” on Alaska, Trump will take Canada (and Greenland) in return, etc etc. T. saying Russia instead of Alaska was him inadvertently revealing the truth. When Repubs furiously denounce this as unfounded conspiracy thinking you press “why did he say he was meeting Putin “in Russia” then?” The answer (he’s sundowning, dementing) is in its way equally unacceptable, but you compel them to admit this. Pretty soon you have QAnon talking excitedly about the non-existent deal as if it were real, but claiming that it’s all 11-dimensional chess on Trump’s part (he agreed the deal privately with Putin, him saying “Russia” instead of Alaska was a coded way of letting P. know it’s on, but in fact when Ukraine is peaceful Trump is actually going to invade Siberia or whatever). In a couple of weeks the “secret Alaska deal” is all anyone is talking about, and Trump is forced repeatedly to deny it, which only confirms it in people’s minds. Throw in an Epstein link, I’m sure there is one. Keep pushing.
mw 08.22.25 at 12:12 pm
I agree that bringing court cases a worthwhile approach. There are already multiple pending cases challenging Trump’s tariffs (including one where the plaintiff is the state of California). It seems almost certain that at least one of these cases will make its way to the Supreme Court. I know most folks on the left think the USSC is now filled with Trump toadies who will rubber stamp anything, but I don’t see it that way. I can see the court throwing out the tariffs on two possible grounds — first that Trump is exceeding his ’emergency’ authority under the IEEPA law, but also possibly that the law itself is unconstitutional in that, according to the ‘major questions’ doctrine, Congress is not allowed to fob off its constitutionally established tariff authority to the executive branch, however much it might like to evade responsibility for such decisions.
KT2 08.23.25 at 3:46 am
mw says @12 “I know most folks on the left think the USSC is now filled with Trump toadies who will rubber stamp anything, but I don’t see it that way.”
Trump; “With all of that being said, I am very proud of many of our picks, but very disappointed in others.”
mw, I also know the unelected coup enablers side think the USSC is now filled with Trump toadies who will rubber stamp anything.
But I don’t see it that way.
Left right or sideways mw,”but I don’t see it that way”, coincides with Leonard Leo who also thinks… most folks on the left think the USSC is now filled with Trump toadies who will rubber stamp anything, but I don’t see it that way. To the tune of $250m+, but how would we know where the dark money comes from; “Concord’s tax return for the period July 2015 to June 2016 shows that one $17.9 million donation, whose source was not reported, accounted for 96.6 percent of the organization’s revenue.[18]”
– “… “The Judicial Crisis Network… “Between 2014 and 2017, entities affiliated with Leo raised over $250 million from donors including Charles Koch and Rebekah Mercer.[20][4][21]
-“CRC Advisors (CRC) (formerly known as Creative Response Concepts Public Relations) is an American public relationsfirm. Formed in 2020, Leonard Leo is its chairman.[1]… “Politico said the company “has long been the go-to communications firm for conservative organizations in Washington and across the country.”[2] CRC Advisors has lobbied against climate change mitigation policies.[3] Clients of the company have included the Federalist Society, the Concord Fund, and Chevron Corporation.[2][3][4]”
“Not for 151 years had the Senate confirmed a Supreme Court nominee without a single vote from the minority party.” [1]
-“A commencement speech she [Coney Barrett] gave there in 2006, nine years after her own graduation, made clear the distinctive view she held of her alma mater. “Keep in mind,” she told the graduating students, “that your legal career is but a means to an end.” That end, she explained, “is building the kingdom of God.”[1]
start of dark money USSC “the USSC is now filled with Trump toadies”. Exhibit 1;
Leonard Leo
– “… “The Judicial Crisis Network… “Between 2014 and 2017, entities affiliated with Leo raised over $250 million from donors including Charles Koch and Rebekah Mercer.[20][4][21]
…
“During Donald Trump’s first administration, the Federalist Society and Leo played a key role in advising Trump on selecting individuals for federal judicial nomination, something Trump described as “one of the greatest achievements” of his first term.[13] In 2016 Trump said, “We’re going to have great judges, conservative, all picked by the Federalist Society.”[14]
“In May 2025, the U.S. Court of International Trade ruled that Trump had overstepped his executive authority when he imposed sweeping global tariffs. One of the three judges on the trade court was appointed by Trump himself in 2017, in consultation with the Federalist Society.[13][14] In a social media post on May 29, 2025, Trump denigrated Leo saying:[13][14]:
[Trump] “I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions. He openly brags how he controls Judges, and even Justices of the United States Supreme Court—I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own ‘thing.’ I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten! With all of that being said, I am very proud of many of our picks, but very disappointed in others.”
‘After Trump’s post, Leo sent out a statement saying “I’m very grateful for President Trump transforming the Federal Courts, and it was a privilege being involved. There’s more work to be done, for sure, but the Federal Judiciary is better than it’s ever been in modern history, and that will be President Trump’s most important legacy.”[15]
Nomination of Neil Gorsuch
“In 2016, Leo worked with Senate Majority Leader Mitch McConnell to block President Barack Obama’s replacement appointee, Merrick Garland. Leo’s nonprofit, the Judicial Crisis Network reported that it spent more than $7 million to prevent Garland’s confirmation.[16] After Donald Trump’s election, The New York Times described Leo as playing a “critical role” in reshaping the judiciary through Trump’s Supreme Court nominees, first contacting then-appellate-judge Neil Gorsuch about potentially nominating him to the vacancy created by Scalia’s death.[17][18]
“Leo’s CRC Advisors coordinated “a months-long media campaign” in support of Gorsuch’s nomination, including “opinion essays, contributing 5,000 quotes to news stories, scheduling pundit appearances on television,” as well as television and radio advertisements.[16][4][19] Between 2014 and 2017, entities affiliated with Leo raised over $250 million from donors including Charles Koch and Rebekah Mercer.[20][4][21]”
…
“Between 2014 and 2017, entities affiliated with Leo raised over $250 million from donors including Charles Koch and Rebekah Mercer.[20][4][21]
Nomination of Brett Kavanaugh
In 2018, Politico reported that Leo had personally lobbied for Brett Kavanaugh’s nomination for the Supreme Court seat vacated by Anthony Kennedy, raising upward of $15 million in support of his confirmation.[22] The Judicial Crisis Network ran television and radio advertisements supporting Kavanaugh’s nomination, and CRC advisors “hype[d] a theory that Christine Blasey Ford’s accusation—that when they were both in high school, Kavanaugh pushed her on a bed and tried to remove her clothing—was actually a case of mistaken identity”.[22]
Nomination of Amy Coney Barrett
..
https://en.wikipedia.org/wiki/Leonard_Leo
Exibit #2; “The Concord Fund (formerly the Judicial Crisis Network and the Judicial Confirmation Network)[1] is an American conservative advocacy organization. Its president is Carrie Severino, a former law clerk for Supreme Court justice Clarence Thomas.[2] In 2020, OpenSecrets described the organization as having “unmatched influence in recent years in shaping the federal judiciary.”[3] It is among a network of organizations associated with Leonard Leo, a co-chair of the Federalist Society, that are funded mostly by anonymous donors, with funding distributed by Concord and a related group, The 85 Fund.[4][5]”
Exhibit #3; “The 85 Fund … “In 2011 and 2012, Leonard Leo arranged for Liberty Consulting, a firm owned by Ginni Thomas, wife of Supreme Court justice Clarence Thomas, to be paid $80,000 by Kellyanne Conway and her firm The Polling Company, billed to the Judicial Education Project. Leo directed Conway not to mention Ginni Thomas in the paperwork.”
end dark money USSC “the USSC is now filled with Trump toadies”
[1]
“The chosen one: Amy Coney Barrett”
Linda Greenhouse
December 8, 2021 long read
“Linda Greenhouse traces forces that made near certain rise of newest — and undeniably consequential — Supreme Court justice
“Excerpted from “Justice on the Brink: The Death of Ruth Bader Ginsburg and the Rise of Amy Coney Barrett and Twelve Months That Transformed the Supreme Court” by Linda Greenhouse
…
“Not for 151 years had the Senate confirmed a Supreme Court nominee without a single vote from the minority party. For the Democratic senators, who had refused on principle to show up for the Judiciary Committee vote, filling a Supreme Court vacancy eight days away from a presidential election was an illegitimate exercise of power. But to Senator Mitch McConnell, Republican of Kentucky, the majority leader who during the past four years had shepherded more than 200 of President Donald Trump’s nominees to their life-tenured seats on the federal bench, it was the reason he was there.
…
“It was a project by a group of conservative lawyers called the Federalist Society to take back the Supreme Court, and the woman on the balcony was its instrument. She was Amy Coney Barrett, the chosen one.
….
“There are few inevitable events in politics, but in retrospect it’s tempting to see Barrett’s nomination to the Supreme Court as one of them. Long before Trump’s announcement of her selection in the White House Rose Garden on Sept. 26—the celebratory event that became a notorious COVID-19 superspreader — he had made it clear that he would name her to the Supreme Court if he got the chance. When Justice Anthony Kennedy retired two years earlier, Barrett, who had taken her seat only months before on the federal appeals court in Chicago, appeared on the president’s short list for the vacancy. But Trump chose instead another appeals court judge, Brett Kavanaugh. “I’m saving her for Ginsburg,” he explained, words intended to assure any disappointed members of his base that while the devoutly Catholic mother of seven had been passed over for this vacancy, she would not be overlooked the next time.
…
” When McGahn spoke at Barrett’s Seventh Circuit investiture ceremony, held at Notre Dame, he took the occasion to quip: “We now affectionately call her Judge Dogma.”
…
https://news.harvard.edu/gazette/story/2021/12/book-excerpt-from-justice-on-the-brink/
###
mw re “the ‘major questions’ doctrine, Congress is not allowed to fob off its constitutionally established tariff authority to the executive branch, however much it might like to evade responsibility for such decisions.”
“Striking Down Trump’s Tariffs Isn’t a Judicial Coup
The Atlantic 29 May 2025 “But Congress is extremely unlikely to do so, in part because Trump’s tariff policy clearly lacks public support; for example, a recent poll found that 63 percent of Americans disapprove of it.”
mw, why hasn’t Congress acted on Tariffs?… “The doctrine has been variously criticized[4] for promotion of “judicial self-aggrandizement”[5] and inconsistency with textualism, originalism,[6] and norms of statutory interpretation.[7] Mila Sohoniwrote that it portends to transform judicial review of agency action.[8]”
Yet ONE WORD mw… FENTALYL! Emergency! Even Mearsheimer says;
“President Trump: The Founding Fathers’ Worst Nightmare”
John J. Mearsheimer Apr 09, 2025
…
“We also discussed how President Trump bypassed Congress to make this momentous decision all by himself, a truly dangerous situation that the Constitution was designed to prevent.”
…
https://mearsheimer.substack.com/p/president-trump-the-founding-fathers
“But an attorney for the plaintiffs, Neal Katyal, characterized Trump’s maneuver as a “breathtaking” power grab that amounted to saying “the president can do whatever he wants, whenever he wants, for as long as he wants so long as he declares an emergency.”
Can Trump impose tariffs without Congress? U.S. appeals court skeptical” By Paul Wiseman The Associated Press July 31, 2025
mw, feel free to tell us how and what Congress has DONE to reign in King Trump’s trumped up excuses to levy tariffs as his mood takes him. Because: Fentanyl…. “the USSC is now filled with Trump toadies”. As good a reason as any.
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