This week, we’ve got ideas for boosting revenues — to strengthen state economies AND resilience in the face of democratic backsliding.

• Withholding funds can go both ways

• Are you a governor facing budget gaps? 🔗 Ask if decoupling is right for you 🔗

• Have natural resources? It’s time to capitalize on them 🤑

With Tax Day approaching, we’re thinking about Trump’s One Big Beautiful Bill Act (OBBBA). Its tax cuts for the rich blew a hole in the federal budget, leaving states to make up the difference for necessities like Medicaid and SNAP. For Trump, that’s intentional. Just this week, the President said states should fund Medicare and Medicaid with their own money because he wants to focus on waging illegal wars. Message received.

What are blue states supposed to do? Our answer: reduce reliance on federal funding. The more blue states depend on Washington, the more vulnerable they are to Trump’s chaos and political coercion. Self reliance is in fact a way to fight back against democratic backsliding.

In the Punch List we’ll dive into what tools states have. But first, let’s talk about who’s feeling the squeeze — and why.

Blue state budgets are under pressure: When Trump signed the OBBBA into law, he didn’t just kick off an explosion in the federal deficit. The bill also leaves states scrambling to make up the resulting deficits in state budgets, forcing them to weigh cuts to critical programs, like Medicaid and SNAP against other general fund priorities, like education.

But the OBBBA is not the only way the Trump administration has trampled blue-state budgets: In January, it attempted to freeze $10 billion in family support funding to five Democratic states (a district judge temporarily struck down the order). In February, it cancelled $1.5 billion in transportation infrastructure and community health grants in California, Colorado, Illinois, and Minnesota. And if disaster strikes? Blue states and their residents are currently three times less likely to receive federal funding for relief than their red state neighbors.

And when it’s not direct cuts, the Trump Administration is politicizing funding to undermine blue-state priorities: The Trump administration is now attempting to condition all federal program funding, for example, on compliance with the administration’s ban on DEI policies. Yet again, states could be left holding the bag.

So what? The more blue states are hostage to federal government funding and tax policy, the less ability they have to set their own agenda.

How are blue states responding so far?

• Adjusting budgets to fill anticipated gaps: States are conducting budget reviews and reappropriating spending as they attempt to mitigate the impact on their citizens.

• Suing: In the past year, blue states have filed many of the nearly 200 lawsuits challenging the Administration’s assaults on federal funding. (P.S. They’re winning.)

• Reforming state tax policy: States are repealing tax breaks and focusing on increasing revenue to reduce their reliance on the federal government (more on the ideas states are, and should be, considering in the Punch List …).

States can be far more aggressive. By focusing on achieving greater economic self-sufficiency, blue states can set their own priorities, serve their residents, and stand up to the administration.

This is the model states should work towards. As always, we’ve got some ideas for how.

THE PUNCH LIST

• Sick of billionaires and out-of-state corporations getting tax breaks? States “decoupling” their tax code from federal definitions are preserving HUNDREDS of millions of dollars. Many states conform certain parts of their tax codes to the federal government’s. So, when the federal government makes a change, the state’s code changes along with it — even if that change reduces the state’s revenue, like when OBBA expanded or created a slew of corporate tax deductions. But states don’t have to go along. Instead, they can “decouple” from the federal tax code and keep the revenues coming.

  • Pennsylvania estimated it saved $1.1 billion by decoupling from corporate tax changes in the OBBBA.

  • In Michigan, similar changes were estimated to save $449 million in a single year.

  • Delaware expects to save $328 million through fiscal year 2028 after decoupling from the corporate tax provisions in the OBBBA. Without the change? The state expected to lose $400 million — or about 5% of the state’s budget.

• Do you represent a state rich in resources that Americans rely on? Pass a severance tax to fund your priorities. Generally, severance taxes are imposed on the extraction of a natural resource destined for use outside of the state — as resources “severed” from their natural location. The upside? These taxes mostly get passed on to consumers outside of the state. You might be surprised that it’s oil-and gas-producing red states, like Oklahoma and Texas, that have figured out how to raise billions of dollars through severance taxes. Blue states with substantial natural resources (California, Pennsylvania) have some catching up to do. The model? New Mexico, which announced it will fund no-cost, universal child care funded by taxes on oil and gas revenue. Here are some more ideas:

  • While Pennsylvania seeks to capitalize on its natural gas reserves, California could levy a tax on almonds (it produces 100% of the country’s supply).

  • Maine could impose a severance tax on lobster (it harvests over 80% of the country’s supply).

  • Michigan has even explored applying a severance tax to bottled water.

• It takes money to make money: Boost your tax enforcement budget. At the federal level, a recent study found that an $80 billion investment in the IRS would have led to nearly 8x returns over 10 years. Turns out if you invest in finding tax avoidance, it’s quite possible you’ll find … significant tax avoidance. Blue states should invest in the practice.

  Interested in more ideas? Hit reply.

  • After boosting tax enforcement, focus the enforcement strategy on the likeliest sources of fraud. States could, for example, strengthen their False Claims Act — like in New York, where the state permits the AG and private whistleblowers to pursue civil fraud actions in significant cases involving misrepresentation of taxes. One result of that law? A $330 million tax fraud settlement. (We’ll note that in some blue states, it’s not just about strengthening, but actually passing a False Claims Act … looking at you Maine, Michigan, and Oregon.) Another idea: announce risk-based corporate audit programs that focus on companies that pursue a common marker of potential tax evasion, like threatening to move a company’s corporate headquarters out-of-state.

• Are you a state legislator? Create mechanisms to allow for the withholding of payments to the federal government. If the federal government is going to mess with state budgets, blue states can put them on notice that they’re not scared to punch back (forgive the pun). While potential responses raise unresolved legal questions, they undeniably send a message: two can play this game. Some examples:

  • In Oregon, a proposed bill would give the state the option to withhold payments from the federal government, if the federal government is withholding funds to Oregon.

  • In Maryland, a proposed bill would authorize the state’s budget department to place liens on certain federal property in the state in response to federal non-compliance with court orders related to congressionally-authorized spending.

NEW YORK UNDERSTANDS ITS POWER.

New York State Senator Andrew Gounardes, the Chairman of the Committee on Budget and Revenue, has been laser-focused on how creative tax policy can strengthen budgets and governance. His take:

“Trump is using federal funding as a weapon: handing out tax breaks to billionaires while targeting his political opponents by cutting food off kids’ tables and health care from working families. We can’t rely on Washington — so we’re not going to. By decoupling our tax code and making sure everyone pays what they owe, we keep New York money in New York and build fiscal independence to keep delivering for our residents no matter what Washington throws at us. Every dollar counts.”

FIGHTING FIRE WITH FIRE

🥊 Gov. Sherrill is using the World Cup to support her budget. With an influx of out-of-state visitors headed to her state this summer, the newly-elected Governor proposed a bill to temporarily hike sales tax to 9.625% near World Cup matches, in addition to an increase in hotel taxes. Even better? She’s proposing a 10 percent surcharge on World Cup match gambling revenue.

🥊 Maryland wants data brokers to pay. Maryland legislators are eyeing a dual registry and tax on data brokers that would cost just $1.3-1.8 million million annually to administer while generating between $90–$100 million per year in taxes and penalties.

Upper Cut is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

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This week, we’ve got ideas for holding rogue DOJ lawyers accountable…

• Keep filing those bar complaints!

• Failure to participate in a state bar investigation = presumptive suspension.

• Judges need protection, too.

But first, let’s talk about the state-level accountability efforts that have the Department of Justice rattled.

The DOJ is coming after state bar associations: On March 5, the DOJ proposed a rule attempting to limit states’ ability to investigate or discipline DOJ attorneys for violations of state legal ethics rules. The rule aims to allow the DOJ to “request” states suspend related investigations or disciplinary proceedings. And if states don’t comply with the DOJ’s “request”? The rule proposes to empower the DOJ to take “appropriate action.”

If that raises alarm bells for you, good. Not only is this a direct challenge to states’ long-standing authority to regulate the legal profession, it also likely violates federal law under the McDade Amendment, which subjects federal attorneys to the same ethics rules that apply to any other attorney.

So, why is AG Bondi doing this now? In short, because outside pressure is working. Groups like the Legal Accountability Center and the Campaign for Accountability have led an effort to hold senior DOJ officials accountable for ethical misconduct by filing formal complaints with state bars. These bar complaints — and the investigations and disciplinary proceedings that follow — carry real professional consequences. And now, many current and former senior DOJ attorneys are staring down that reality, including:

• AG Pam Bondi (for allegedly compelling staff to violate their ethical obligations);

• Deputy AG Todd Blanche (for, among other things, allegedly assisting and/or counseling the Trump administration in instances of illegal conduct); and

• Others such as former senior DOJ official and current Third Circuit Judge Emil Bove, former Acting U.S Attorney for the District of New Jersey Alina Habba and former Interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan.

At the same time, judges are furious with other DOJ attorneys — and their clients — for violating countless court orders, which also amount to clear ethical violations.

• In Minnesota, for example, the chief federal judge identified 96 violations of court orders by ICE across 74 cases. After the DOJ complained that the finding “was far beyond the pale of accuracy,” the judge published a supplemental order revising the earlier finding to a whopping 97 violations across 66 cases — before providing 113 additional examples of cases in which ICE had violated court orders.

Rather than rein in her department (and herself), AG Bondi aims to limit accountability.

Here’s how to stop her:

• Step 1: Blue-state officials — who have an institutional interest in regulating the lawyers who operate in their states — can file a formal comment on the DOJ’s proposed rule at regulations.gov by April 6th to preserve the right to a legal challenge. Courts will look to the administrative record when evaluating a challenge to the rule. Therefore, it’s critical to get key legal arguments on the record, including:

  • The rule is contrary to law under the McDade Amendment.

  • The rule infringes on the First Amendment right to petition the government by restricting the ability to seek redress of a grievance.

  • The rule violates the Tenth Amendment by infringing on states’ authority to regulate legal ethics.

• Step 2: After filing a complaint, blue-state officials can prepare to sue. The courts have struck down plenty of agency actions by the Trump Administration before. They can knock down this one, too. We have the arguments — above — to make the case. Reach out — we’re always glad to discuss more.

• Step 3: Continue filing those bar complaints — and keep up the pressure. Attorneys and advocates should continue to hold rogue DOJ lawyers to account. The defiance of a court order or other unethical conduct comes with serious professional consequences for the lawyers involved. The American Bar Association makes that explicit. Knowingly assisting a client in their unlawful conduct? There’s a rule against that too. These rules are in place across the country. State bar authorities should enforce them — as they always have. There’s no reason to let up now.

This proposed rule is a sign the DOJ is on its back foot. Time to double down.

As always, we’ve got some ideas for how.

THE PUNCH LIST

• Are you a dues-paying attorney? Push your bar association to fight back. As things currently stand, attorneys can, for the most part, continue practicing law even while they are under investigation. State bars can change that and prevent DOJ attorneys from hiding from state-level accountability. How? Issue new rules that threaten immediate suspension (pending the outcome of the investigation) for attorneys who fail to cooperate with an investigation.

• Are you a state legislator? Stand up for the judges upholding the rule of law. In recent years, threats against, and harassment of, judges have skyrocketed — particularly in cases where those judges ruled against the Trump administration. In Massachusetts alone, for example, judicial employees have been threatened at least 359 times in the last four years. States have started to respond. Maryland and Delaware, for example, have enacted laws allowing judges to request that their personal information, like home addresses, not be published. But most states still lack any such protections. Where they don’t yet exist, legislators can get to work.

• Do you work for a law firm? Disrupt the government-to-private-practice pipeline for unethical attorneys. There’s a well-worn and lucrative path from a stint as an attorney in the federal government to a position at a private sector law firm. For current and former DOJ lawyers who violate court orders, that pathway should be closed off. Today, law firms can adopt, and loudly announce, new policies that prohibit the hiring of attorneys who have violated court orders or engaged in other ethical misconduct. With the legal system under attack, this is a moment for law firms to make clear where the legal profession stands. This should be an easy line to draw.

THE LEGAL ACCOUNTABILITY CENTER WON’T LET THIS SLIDE.

Michael Teter, the Executive Director of the Legal Accountability Center and Managing Director of The 65 Project, has led the charge against rogue Trump lawyers, filing bar complaints to document their misconduct and call for accountability. We gave him a ring:

“The DOJ’s proposed rule demonstrates the power of these bar complaints and the concern AG Bondi has that she and her staff will be held to account for their unethical conduct. The Legal Accountability Center will continue — and redouble — our efforts, and we call upon state bar disciplinary offices to be strong in the face of attacks on the rule of law.”

FIGHTING FIRE WITH FIRE

🥊 The Legal Accountability Center keeps up the pressure. In its latest bar complaint, LAC called for the Maryland Bar to hold Associate Deputy AG Aakash Singh to account for, among other things, encouraging federal prosecutors to defy court orders.

🥊 No, the D.C. Bar won’t back down. On March 6, the D.C. Bar initiated disciplinary proceedings against senior DOJ official Ed Martin. The allegations: Martin sought to punish Georgetown Law School over its DEI practices. When an ethics complaint sought to hold him to account, Martin sought an unauthorized ex parte meeting with a judge. Now, Martin’s in even bigger trouble.

🥊 And speaking of the D.C. bar… Last year, when Trump came after big law firms, the D.C. Bar stood up — putting lawyers and law firms (and lawyers working for the government) on notice that their sleazy deals with the Trump Administration could cross ethical lines.

🥊 Judge Boasberg puts DOJ in its place. In quashing subpoenas against Federal Reserve Chair Jerome Powell, the federal judge did not mince words citing “a mountain of evidence suggest[ing] the dominant purpose [of the subpoenas] is to harass Powell” to further the President’s agenda.

Upper Cut is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

This week, we’ve got ideas for how to fight media consolidation and capitulation…

• Bribing federal officials for merger approvals? 👎

• Censorship and coercion <—> meet the First Amendment.

• Tanking share prices to capitulate to authoritarians isn’t fiduciarily responsible.

But first, let’s talk about the brewing Nexstar-Tegna merger….

Control of news and media is a key pillar of authoritarian control. While Paramount’s potential acquisition of Warner Bros. Discovery has stolen the headlines, it buried another important merger story: FCC Chairman Brendan Carr’s support of the Nexstar-Tegna transaction. If approved, that merger would give Nexstar ownership of 265 stations in 44 states. That’s the bad news. The good news? Blue state AGs have the power to stop it.

Ownership of local news affiliates isn’t as sexy a story as one family controlling HBO Max, CBS, and CNN. But even in the era of cord-cutting, local news ownership influences what many Americans see and hear every day. Americans view their local news as more neutral and reliable. What happens to that trust when one entity (run by a Trump supporter) concentrates control over local stations across the country?

We already got a preview of what Nexstar can do with its influence. Remember in September, when Carr did his best Goodfellas impression, pressuring ABC to suspend Jimmy Kimmel after his comments about Charlie Kirk? It was Nexstar CEO Perry Sook who took it upon himself to pre-empt Kimmel’s show on every Nexstar station. When Sinclair media followed suit, Disney (which owns ABC) pulled the show and pre-empted Kimmel.

This is the kind of capitulation to right-wing interests we can expect under Nexstar dominance. You don’t have to take it from us: Trump himself said he views this merger as an effort to compete with “THE ENEMY” and it “will help knock out the Fake News.”

If the merger goes through, a company that is willing to do political favors for the administration will control local news coverage in 80% of households. Colorado Congressman Joe Neguse and U.S. Senator Michael Bennet asked the FCC to reject the merger, citing the harm to Colorado communities: The merger would give Nexstar control over three stations in the Denver market alone (not to mention two stations in DC, two stations in Los Angeles, two stations in Buffalo, the list goes on…).

In addition to the five alarm fire of Trump allies controlling much of our local news, the merger would likely also mean fewer jobs and downward pressure on wages from a company that is already among the worst employers in the industry. And it would likely lead to higher costs both for businesses that advertise on broadcast television and for consumers through higher cable fees.

Currently, FCC regulations cap the local market reach of any single company at 39% of households and prohibit a single owner from owning more than two stations in one market — barriers that should stop this merger in its tracks. But the FCC has at least two options for approving this merger anyway: (1) granting Nexstar a waiver from these rules (the company applied for one in November), or (2) changing the ownership rules themselves.

The stakes are high, and so are the dollars and influence being thrown around. Between 2023 and 2025, Nexstar increased its lobbying spend more than 10x to $3.2 million. Perhaps unsurprisingly, Nexstar (and Tegna) both hired Trump-aligned lobbying shop Miller Strategies, a firm led by Jeff Miller, the Finance Chair of Trump’s second inaugural committee. You get what you pay for.

The FCC isn’t the only federal agency that gets a say here. But it’s getting clearer this deal could be approved any day and the federal government is not going to get in the way. Over at DOJ, the antitrust head, Gail Slater, was forced out last month (and her deputy chief left days later). Then, last week, Perry Sook assessed the deal’s prospects, declaring “I would say certainly having the endorsement of [Trump] doesn’t hurt in the regulatory agencies.”

So, it’s going to be up to states to challenge this merger — which they have the power to do under federal (and, in some states, state) antitrust law. As former New Jersey AG Matt Platkin predicted, this could be a turning point. “The Trump Admin’s gutting of antitrust enforcement for corrupt purposes will ultimately result in one of the biggest transfers of economic regulatory power from feds to states in American history. States have the authority. They will use it.”

California, Colorado, and New York seem geared up to challenge the Nexstar-Tegna merger. And we’ve got some ideas for where to go from there to punch back against Trump’s takeover of the news.

THE PUNCH LIST

• Do you work for a state AG? Send Nexstar a warning letter and information request and let them know what’s to come. State AGs do not need to wait for merger approval on the Nexstar-Tegna deal to take action. Right now, multiple states can band together to send a shot across the bow and let Nexstar CEO Perry Sook know they plan to enforce federal and state antitrust laws. They’ve done it before. And here are some questions to ask: Has Nexstar communicated directly with Chairman Carr about the potential acquisition? Has the company made any content-related promises to any Trump administration official? The public should know. Put Nexstar on notice.

• Are you California AG Rob Bonta? Check if Paramount-Skydance is violating California’s Unfair Competition Law (UCL). A $16 million settlement of a nuisance lawsuit. Installing Bari Weiss to lead CBS News. Rumored discussions to fire specific CNN anchors. There’s no shortage of things “of value” Paramount-Skydance has given away in order to secure regulatory favor. While the federal government likely won’t be looking into whether this conduct violates federal anti-bribery law, fortunately California doesn’t have to wait. Under the UCL, California prosecutors can “borrow” a violation of another law as “independently actionable as [an] unfair competitive practice[].” Better yet, the UCL even provides the California AG with pre-litigation subpoena power. Also: it’s not just California that gives its AG power to combat unfairness (we’re looking at you, New York). Make Paramount explain its behavior in court.

• Are you a skeptical Paramount shareholder? Hold the board accountable for value-destroying behavior. It turns out crony capitalism may not actually be good for shareholder value. In the five months since Paramount announced Bari Weiss as Editor-in-Chief of CBS News on October 6, the company’s share price is down more than 40% (as of March 9) – and its credit rating just got downgraded to “junk” status because of the $79 billion in debt it took on to make the Warner Bros. deal possible. Historically, major mergers in the media industry? Not great for business. If Paramount’s board is making decisions based on political considerations, rather than applying business judgment, that’s not strategy. That’s a risk — and the board may have violated its fiduciary duty. Shareholders can file a derivative lawsuit, demanding responsible corporate governance.

• Are you a blue state AG or journalist? Steal a play from red state AGs and sue the Trump administration under the First Amendment. FCC Chairman Carr’s Pledge America campaign seeks “voluntary” commitments from broadcasters to air “patriotic, pro-America” content to celebrate the country’s 250th birthday. But when the FCC has already publicly threatened regulatory action, like broadcast license revocation over disfavored speech, this “voluntary” ask starts to look a lot like an attempt at coercion. And if the government is coercing speech? That’s why we have a First Amendment.

• Are you a press freedom organization? Shoot a FOIA over to the FCC and find out what it isn’t telling us. Regulatory agencies reviewing mergers should focus on compliance with statutory and regulatory requirements. But there’s evidence the FCC is exceeding that mandate by extracting “voluntary” concessions regarding content and editorial policies. Given what the FCC has publicly gotten companies to agree to — such as ending their DEI policies — there’s a good chance there’s more to see here. What have Nexstar and Paramount been saying to regulators behind closed doors? This is exactly what the Freedom of Information Act is for. It’s time to send the FCC a FOIA and find out. And if the FCC stonewalls its response? Sue.

• Are you an organization representing journalists or news producers? Sue the FCC for its de facto change of the “public interest” standard. The Administrative Procedure Act does not permit regulatory policy changes through press releases. And Chairman Carr’s statements approving the Paramount-Skydance and Verizon-Frontier mergers — referencing conditions like commitments to ending DEI — beg the question of whether the agency has turned merger review into an ideological compliance test. If the FCC has effectively redefined the “public interest” standard to favor certain viewpoints and require an abandonment of DEI initiatives, that’s not just rhetoric. It’s a de facto rule change. And under the APA, that may constitute final agency action — which can be vacated if it’s arbitrary, capricious or contrary to law.

Sen. Warren’s former COS would like a word…

Senator Elizabeth Warren has been advocating for scrutiny of the Nextar-Tegna merger. We asked her former Chief of Staff, Dan Geldon, to weigh in:

“This merger would further concentrate control of local news in the hands of a single corporate giant at a time when communities need more diverse, independent voices — not fewer. Media consolidation has hollowed out local journalism for decades, and approving this deal would only accelerate that trend.”

FIGHTING FIRE WITH FIRE

🥊 Not so fast, bros. AG Bonta says “whatever [the Federal government] will do” to look into the Paramount-Warner Bros. merger, “we will do our own independent review here in California.” The New York Times headline writers may think Netflix backing out of Warner Bros. negotiations is “paving [the] way” for Paramount to take over, but AG Bonta made it clear that his office is investigating, adding that “there is interest from other states” as well.

🥊 A private news organization fires back against the Federal Trade Commission’s attempts to chill speech. NewsGuard, a news rating agency, filed a First Amendment lawsuit against the FTC and Commissioner Andrew Ferguson alleging the agency launched a retaliation investigation against it, and sought to undermine its business, in an effort to police speech. Watch this space.

🥊 Media justice groups are making the FCC answer to them. Interested parties can file petitions to deny FCC broadcast license transfers. And when Nexstar applied to buy Tegna’s broadcast licenses, Free Press, Public Knowledge, the Communications Workers of America, and United Church of Christ Media Justice Ministry did just that. Now, the FCC must respond.

Upper Cut is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

• Harassing elections workers? Lawyer up.

• Federal troops 🙅‍♀️Polling sites

• Maine can win the game of 🐔that Nebraska started.

But first, let’s talk about federalism as a style of combat.

When the Texas legislature announced last summer that it would pursue a mid-decade partisan redistricting project, a lot of people worried it would spell the end of Democrats’ chances in the midterms. But this isn’t the old days of Democrats fighting with one hand tied behind their backs: blue state leaders around the country laced up their gloves. California was the first to step up with its voter-approved redistricting plan (Prop. 50) for the state that sends the most representatives to Congress.

Upon taking office this January, Democrats in Virginia’s General Assembly followed suit. They moved quickly to pass new congressional maps designed to create a 10–1 Democratic-leaning delegation, advancing a constitutional amendment to allow mid-decade redistricting (now subject to a high-stakes legal battle). Governor Wes Moore (keep fighting, Wes!) in Maryland announced a similar plan in his state (though MD Senate President Bill Ferguson refuses to bring it to the floor). And just last week Colorado entered the redistricting ring, with the announcement of a drive to get redistricting on the ballot to net Democrats an additional three seats in 2028.

Republicans may have started this fight thinking it would be an easy win. They were wrong.

In a new essay in States Forum, Arkadi Gerney and Sarah Knight make the case that the 2025 redistricting fight marks a sea change for big-D and small-d democrats. Interbranch pushback to the Trump administration has been anemic in some cases and capitulatory in others. As Gerney and Knight explain: “These limp horizontal checks underscore the importance of the vertical checks of federalism and state power on an increasingly autocratic president. Over the past decade, growing ranks of scholars have revived an old idea: namely, that federalism can be a bulwark for democracy.”

Gerney and Knight point to the recent redistricting fight to argue that democracy defense requires Democrats to embrace federalism as a style of combat. A winning blue state strategy would use decentralized, adaptive, unconventional tactics to challenge an opponent that controls the traditional levers of national government power and treats its red state allies as puppets in its play.

California’s redistricting counterpunch was not an abandonment of democratic values. It was the protection of democratic viability. It was the recognition that in a world of asymmetric hardball, restraint by one side alone is not a virtue—it is surrender.

That’s true across threats, but the stakes are especially clear and high when it comes to free and fair elections.

Earlier this month, President Trump repeated his call to “nationalize” elections. His eyes may be bigger than his stomach, and a lot of legal and logistical challenges stand in his way. For one thing, more than 10,000 different election administration jurisdictions administer American elections under a patchwork of federal, state, and local laws. Quite a challenge to wrangle for an administration that has trouble legitimately appointing a U.S. attorney.

But rather than rely on the incompetence of the Trump administration to protect our elections, states need to use their jurisdiction over election administration to go on offense. Mid-cycle redistricting was just the opening move in Republican attempts to rig the midterms. All bets are off about what the GOP will do come November.

With Prop. 50, Governor Newsom and California Democrats’ sent a clear message: fuck around with elections and find out the power of blue states. Or, as VA State Senator L. Louise Lucas put it: “You all started it and we fucking finished it.” We have to double down on that aggressive vision. This isn’t a time for playing defense — it’s a time to press every advantage we have.

As always, we’ve got ideas.

THE PUNCH LIST

• Blue state legislator? Adopt “trigger” protections to deter certification sabotage. Remember when Mike Johnson refused to seat a duly elected member of Congress for 50 days? (It happened in Minnesota, too.) What about all the saber rattling Republicans did in 2024 about refusing to certify election results? Time to get proactive. Here’s an idea: Establish an independent review board. Provide it a “trigger” emergency authority to allow your state to punch back with its own delays when and if the review board finds that another state (or Congress) has delayed or denied certifying or seating duly-elected members. One state’s credible threat to cancel out anti-democratic behavior with equivalent retaliatory action can work to deter the behavior in the first place.

• Are you ME Governor Janet Mills? We have a separate “trigger” law idea for you. In 2024, Maine and Nebraska — the two states that divide their electoral votes by congressional district — got into a staring contest over Nebraska’s plan to abandon that system in favor of a winner-take-all approach. Maine made clear that if Nebraska moved, it would too. The threat worked, at least for now. Nebraska did not fold to pressure to change its system for 2024, but there’s no guarantee it won’t do so the next time Trump and the GOP set their eyes on the Cornhusker State. (Especially since the guy credited with blocking the Nebraska legislature from acting … is no longer in the legislature.) It’s time to codify Maine’s threat into law. Maine should pass a statute now to adopt a winner-take-all system the moment Nebraska does so. No more waiting around.

• Do you know Maryland Senate President Bill Ferguson? Tell him to get with the times. While states like California and Virginia have recognized that the time for unilateral disarmament is over, the message has not made it to Ferguson. Now, he’s the main obstacle standing in the way of Maryland’s redistricting effort and is asking Governor Moore to “move on.” We’ll pass on that suggestion.

• Work for a state AG? Prosecute election laws — and encourage local prosecutors to do the same. Driven by increasingly violent threats and doxxing attempts, state election workers are resigning in droves. It’s time for state AGs to take the gloves off. Thirty-five states have criminalized intimidation and/or interference with election workers. If your state has one of those laws, broadcast your plans to enforce it. If your state doesn’t — get to work. (And while we’re at it, let’s make sure these laws cover doxxing too.) Election workers are key to free and fair elections. Give anyone considering threatening them a reason to think twice.

• Does the thought of Stephen Miller make your skin crawl? Let’s make America First Legal crawl into court. Founded by Miller, American First Legal has built its name spinning fantasies around election fraud. The Ku Klux Klan also had a playbook to intimidate voters. Now, the Ku Klux Klan Act, specifically 42 U.S.C. 1985(3), makes it illegal to conspire to threaten or intimidate Americans in their support or advocacy for federal candidates. In 2024, a federal jury in Texas found a defendant liable under 1985(3) for his role in the “Trump Train” ambush of a Biden-Harris campaign bus. And if that violates the law? Then what about promoting false narratives about voter fraud that could be used to justify aggressive voter intimidation tactics? A trial in Georgia is about to test out a similar theory. Keep an eye on AFL. When they come for the midterms, hit them with the KKK Act.

• Worried about immigration enforcement at the polls? Join the band of states passing and proposing legislation to ban ICE from the polls. With Steve Bannon threatening that ICE will be at the polls in 2026 — and Karoline Leavitt refusing to “guarantee” they won’t — states can’t leave anything to chance. Responding to this threat should be a coordinated effort. Look to New Mexico for an example, where a bill is moving through the Senate to ban federal troops from polling places. Or Pennsylvania, too, where legislation is moving to ensure that its prohibition of on-duty police officers being within 100 feet of a polling place also applies to federal troops.

• Do you work in a Governor’s office? Gather the troops, and stand up your election security task force. With the federal government absent on election security, states have to fill the void. It’s time to set up an Election Security Task Force across state agencies. There’s a long menu of ideas for states to pull from: at minimum, states should build up cybersecurity support teams, require the use of secure .gov websites, establish steady funding for technology upgrades, expand physical security protections, and ensure robust postelection audits. And states should work together. Discuss best practices. Pool resources. Scenario plan. The task of protecting the election from federal interference — and replacing their support — is bigger than just one state. Cooperation is imperative.

THE FOUNDER AND CEO OF PUBLIC RIGHTS PROJECT HAS SOME THOUGHTS.

We pinged Jill Habig, the Founder and CEO of Public Rights Project, to ask about what’s at stake in 2026:

“It’s simple. Election administration this year will pit state and local governments against the feds. Federalism is what gives us a chance in that fight. If state and local leaders step up, they can make sure that every citizen has access to that bedrock of democracy: free and fair elections. There’s too much on the line to sit back and wait to see what shenanigans bad actors will try to play with our votes.”

FIGHTING FIRE WITH FIRE

🥊 Michigan won’t roll over on voter rolls: If we fight, we can win … and Michigan did just that. On March 10, a federal judge sided with Michigan, defeating a Trump administration attempt to force the state to hand over its unredacted voter rolls. The judge — a Trump appointee — ruled that federal law does not compel the disclosure and affirmed the state’s authority to protect voter privacy.

🥊 Fulton County calls out FBI raid: Fulton County is not shying away from the fight after the FBI showed up at its election headquarters and seized ballots. In a court filing demanding the federal government return its property, the County called out the federal government’s efforts as “designed to intimidate,” highlighting the “debunked and judicially adjudicated as meritless” claims underlying the government’s warrant. (Oh, and by the way? States don’t have to give the FBI the chance to do this again: federal law only requires states to retain ballots for 22 months following a federal election.)

Counter Punch is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

• We ❤️ clinic access laws

• Data privacy is a reproductive rights issue

• Free speech? 👍 Doxxing doctors? 👎

But first, let’s talk about what Texas is doing…in blue states.

Last month, Texas AG Ken Paxton aimed the state’s anti-abortion law at Delaware, suing a Delaware nurse practitioner for prescribing abortion drugs to Texas residents. “The day of reckoning for this radical out-of-state abortion drug trafficker is here,” Paxton announced, adding “no one, regardless of where they live, will be freely allowed to aid in the murder of unborn children in Texas” (emphasis added). And just last week, a man in Texas used the state’s bounty hunter law to sue a California doctor for prescribing abortion mediation to his purported sexual partner.

This is what “leaving it to the states” looks like. When the Supreme Court handed down the Dobbs decision eliminating federal protections for abortion access, conservatives hailed it as a victory for states’ rights. But, of course, it was never about states’ rights — it was about extending conservative power and control, which knows no boundaries. In our last issue we talked about how red states use state laws to advance political and ideological agendas outside their borders. Consider this week’s edition on abortion access a case study.

And Texas isn’t the only state to play the game. In January, Louisiana AG Liz Murrill sought to extradite a California doctor who allegedly mailed abortion medication to a woman in Louisiana. It wasn’t the first time AG Murrill tried this gambit. Last year, she charged a New York provider for prescribing abortion drugs online to a Louisiana mother who ordered them for her pregnant child. And while California and New York have rejected Louisiana’s efforts to extradite those doctors, AG Murrill is attempting to compel their extradition in federal court. These zealots will stop at nothing.

And elsewhere:

• Idaho and Tennessee passed so-called “abortion trafficking” laws that make helping a minor get an abortion out-of-state without parental knowledge a crime, punishable in Idaho by two to five years in prison and in Tennessee by up to a year. Judges have upheld both laws, allowing them to be enforced in many instances.

• Alabama AG Steve Marshall threatened that anyone who helps a pregnant woman travel out of state to receive an abortion will be charged with felony conspiracy and accessory charges. A judge ruled that Marshall’s threats violate Alabamians’ constitutional rights to free speech and freedom of travel, but that doesn’t change the threat’s chilling effect.

• Missouri AG Catherine Hanaway took aim at nationwide access to medication abortion. In a multi-state challenge, she sued the FDA over its approval of a generic version of mifepristone, one of two commonly prescribed abortion drugs. The suit doesn’t stop there — it also asked the court to enjoin the distribution of abortion drugs through the mail altogether.

Even before Dobbs, red states were gearing up for the day Roe would fall and searching for nefarious ways to chip away at its protections. Thirteen states had enacted “trigger laws,” which effectively banned abortion the moment the ruling came down. And Texas took the cake when, pre-Dobbs, it went so far to enact a private right of action (SB8) allowing individuals to sue against anyone suspected of performing, inducing, or aiding an abortion.

If it wasn’t so evil, it’s the kind of aggressive preparation and offensive drive we’d tip our hats to. 🎩

Blue states have responded to an extent. Many have adopted so-called “shield laws” to protect abortion providers from out of state legal attacks, which, for the most part, have worked — so far. In New York, for example, a judge dismissed Texas’ attempt to enforce a civil judgment against a New York abortion provider, after a county clerk invoked the state’s shield law.

But we think it’s past time to turn up the heat. Blue states need to fight as aggressively to protect and expand abortion access as their red-state counterparts do to constrain it. Shields are great, but we should complement them with swords — both to make it easier for women to get the reproductive healthcare they need, and to punish the bad actors who stand in their way.

We’ve got a few ideas on how.

THE PUNCH LIST

• Fed up with Texas targeting abortion in your state? Target anti-abortion extremists in theirs. Ken Paxton is using Texas law to prosecute abortion providers in other states. So why don’t we turn the tables? Proposed legislation in New York would criminalize interference with, and intimidation of, the state’s telehealth providers. It could open the door for New York to prosecute anti-abortion extremists in Texas right back (including those sitting in the halls of the State Capitol bringing specious lawsuits). Not in New York? Push for a similar law in your state.

• Work for a state AG? Threaten to revoke the licenses of hospital systems that deny abortion in red states. Across the country, hospitals have denied stabilizing emergency care to pregnant women in red states, in violation of federal law — namely, the Emergency Medical Treatment and Labor Act (EMTALA). In some cases, women have died. Many of the hospitals that have violated EMTALA in red states are operated by systems that also have locations in blue states. That’s a hook. If your state requires hospitals to comply with federal law as a condition of its state license (spoiler alert, most do), then make sure they’re doing so, as Ken Paxton would say, “regardless of where they [operate].” Need some research? Hit reply — we have paper.

• Remember torts class? Use what you learned to punch back at the most egregious forms of harassment. Anti-abortion activists may be protected by the First Amendment to an extent — but the law draws a line. Recognized in all 50 states, the tort of intentional infliction of emotional distress occurs when an individual “acts in a manner that intentionally or recklessly causes another to suffer severe emotional distress, such as issuing the threat of future harm.” Protests are one thing. But doxxing or surveilling abortion providers or their patients? That’s nowhere in the Bill of Rights. And if there’s evidence of a coordinated effort? We might be looking at civil conspiracy.

• Concerned about data brokers and abortion access? Fight one, while protecting the other. Before Trump, the FTC sued a data broker to prohibit it from sharing or selling sensitive location data that could be used to track visits to reproductive health clinics. Don’t expect to see much of that from Trump’s FTC. Fortunately, though, states have their own consumer protection and data privacy laws. Washington’s My Health My Data Act, for example, restricts the sale or disclosure of sensitive reproductive and geolocation data. AG Nick Brown should take note, as the law also allows his office to seek up to $7,500 per violation. Other blue states should take on the data brokers that are undermining women’ s health as well.

• Want to really up the ante? After your counter-force actions are in order, consider counter-value deterrence. Tit-for-tat on abortion isn’t the only strategy; there are other ways to impose costs on the individuals and states that are wrongfully harassing abortion care providers in blue states. Red-state anti-abortion laws (and refusals to expand Medicaid) are driving up costs in other states. New York can assert its economic might. With liability insurance costs for blue-state abortion providers skyrocketing, let’s shift some of the burden. Gov. Kathy Hochul could instruct the Department of Financial Services to make New York insurance licensure subject to a requirement that the company’s practices in other states comport with New York abortion laws or explore new regulations that require such insurance providers to subsidize the cost increases (capping insurance rate increases experienced by these doctors accordingly).

THE CEO OF ABORTION IN AMERICA WOULD LIKE A WORD…

We pinged Lauren Collins Peterson, the CEO and co-founder of Abortion in America on fighting for abortion access:

“The insidious idea that we should leave abortion ‘up to the states’ might seem reasonable at first. But what happens when Louisiana tries to extradite a New York doctor for providing legal abortion care? Should we ‘leave it up’ to Arkansas — a state that already has the highest maternal mortality rate in the country — to let women like Emily Waldorf die because of an abortion ban so vague and confusing that doctors don’t know whether or not they’re allowed to save a patient’s life? And what does it all mean for people who, for any number of reasons, can’t travel to another state to get health care that should be available in their community?

“We’re living through a reproductive health crisis. We have to go on offense with every tool in our toolbox — including organizing, public awareness campaigns, proactive legislation, and creative digital outreach. And when all else fails: Sue the bastards.”

FIGHTING FIRE WITH FIRE

🥊 Pregnant women in Idaho are still protected by EMTALA, for now. Last year, St. Luke’s Health System, represented by Jenner & Block, sued the state of Idaho to resolve the conflict between Idaho’s abortion ban and EMTALA’s requirements for emergency care for pregnant women. In March, a judge issued a preliminary injunction, allowing EMTALA’s protections to stand while the case is litigated.

🥊 Mayday issues an S.O.S. in New York. After Mayday Health placed advertisements for abortion resources in 20 South Dakota cities, South Dakota AG Marty Jackley issued a cease-and-desist letter. Mayday, based in New York, responded by suing in New York District Court for a temporary restraining order against Jackley, claiming the ads are protected by free speech. In January, the TRO was granted and further arguments are pending.

🥊 Eyes on Arkansas. Amplify Legal, the recently founded litigation arm of Abortion in America, hit the ground running with a lawsuit against the state of Arkansas. The suit, filed on behalf of four Arkansas women who were blocked from getting abortions under the state’s near-total ban (as well as an OB-GYN), argues that the ban violates the state’s constitution.

🥊 Stay golden. Remember those lawsuits against abortion providers in blue states we mentioned? They are running up against forceful resistance. California Gov. Gavin Newsom announced the state would not comply with Louisiana’s extradition request, citing an executive order he signed. New York Gov. Kathy Hochul likewise refused to sign Louisiana’s extradition request for a New York doctor, making it quite clear where she stands: “Not now, not ever.” 👏

Counter Punch is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

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This week, we’ve got ideas for how to use state consumer protection laws to reclaim some power…

• Kristi Noem’s “unfair and deceptive” no-bid contract 🤑

• Grok’s ❤️ affair with MAGA accounts

• Did Trump’s 60 Minutes settlement violate state consumer protection law?

But first, let’s talk about getting off our back foot.

With Minneapolis under siege, Medicaid and the ACA under constant threat, and Trump dismantling NATO to steal Greenland (or maybe Iceland?), it feels like we’re perpetually stuck playing defense. It’s a familiar feeling — for only one side. Because when Joe Biden was in the White House, MAGA’s agenda didn’t stall out. Companies dropped DEI commitments. Reproductive rights were decimated. “ESG” became a lightning rod.

Which begs the question: If political power swings back and forth, why does actual power seem permanently lodged on the far right?

Our take? The power pendulum doesn’t swing unless you move it. And MAGA Republicans — especially state AGs — have ripped the pendulum off its anchor and wielded it like a chain mace. The moves they made during the Biden years set the tone, direction, and strategy Trump has now deployed.

But everyone knows Republican AGs have been successful. What’s far less appreciated is how they’ve done it. Sure, resources help. So does a stacked judiciary and a casual contempt for the rule of law. But creativity matters, too. And MAGA Republicans have been ruthlessly creative in one underappreciated way: using state consumer protection laws to press their agendas.

Consider three recent examples:

• Silencing Critics in the Media: After Media Matters published research Elon Musk didn’t like, MAGA AGs rushed to Musk’s defense. Texas AG Ken Paxton launched an investigation into the nonprofit. Former Missouri AG Andrew Bailey (now Trump’s deputy director of the FBI) sued. Their theory? Media Matters violated state consumer protection laws by “fraudulently manipulat[ing] data” from X. The suits may be frivolous. But they still cost a significant amount of money to defend and have real world chilling effects. Just ask Media Matters.

• Restricting Abortion Access: In November, Florida AG James Uthmeier filed a specious lawsuit against Planned Parenthood. His claim? Planned Parenthood misrepresented the safety of the abortion drugs mifepristone and misoprostol in violation of Florida’s Deceptive and Unfair Trade Practices Act. Uthmeier is seeking millions in damages and asking a court to fully bar Planned Parenthood from operating in Florida.

• Attacking ESG and DEI Investing: Uthmeier didn’t stop there. He’s also sued two leading proxy advisory firms, claiming their consideration of ESG and DEI factors violated…you guessed it, Florida’s consumer protection laws.

And it’s not just state AGs. Trump himself has embraced the tactic. His infamous 60 Minutes lawsuit cited Texas’s Deceptive Trade Practices Act and his suit against the BBC over a January 6th documentary relied on Florida’s consumer protection law.

The lesson is obvious. State consumer protection laws are broad, flexible, and powerful. MAGA understands that — we should too.

So what exactly do consumer protection laws do? Broadly speaking, they prohibit unfair or deceptive practices. (H/t to New York, which just last year broadened its consumer protection law to cover “unfair” practices, in addition to deceptive ones.) The word “unfair” is important in this context. While its definition varies to some extent state to state, it is generally understood to capture quite a lot. California, for example, describes its consumer protection law as having “sweeping” reach and defines “unfair” to include any activity that is “immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Also important: In most states, consumer protection laws are strict liability statutes, meaning intent is irrelevant.

Blue state AGs, nonprofit groups, and private litigants — indeed, all of us — can rip a page from the MAGA playbook and put these laws to use. We can play defense against Trump by challenging corruption and cronyism. We can fill the federal enforcement gap and rein in companies that defraud consumers. And we can go on offense to press our affirmative agenda on issues like abortion access, AI regulation, and affordability.

We’ve got ideas on how.

THE PUNCH LIST

• Are you Delaware AG Kathy Jennings? Open an investigation into the Delaware ad company that just got a $143 million no-bid DHS contract. That company — Safe America Media – was incorporated in Delaware only days before receiving millions of dollars that it then funneled to “Strategy Group,” a consulting firm run by the husband of Kristi Noem’s chief spokesperson. What was the 💰for? An ad campaign featuring Noem on horseback declaring, “Break our laws, we’ll punish you.” Well, state consumer protection statutes are laws too. Did Strategy Group get an “unfair” advantage over its competitors? AG Jennings should find out.

• Fired up about Social Security fraud? Investigate the latest perpetrator: DOGE. In a recent court filing, DOJ admitted that members of DOGE were secretly in touch with an outside advocacy group focused on overturning elections, about sharing sensitive Social Security data to match state voter rolls. That’s not just a violation of federal law, it’s arguably a violation of state consumer protection laws by DOGE, individual DOGE bros, and the nonprofit that solicited the data. Did Palantir or other companies get access to similar data, providing them an “unfair” advantage over their competitors? State AGs can — and should — investigate.

• Want to protect abortion access? Look into who owns the hospitals in your state. Since Roe was overturned, women around the country have died after hospitals turned them away from emergency rooms or denied care. Those hospitals are violating federal law (h/t EMTALA). But they’re also, quite literally, failing to protect consumers. And remember, hospital systems with locations in blue states often have locations in red states, too. So just because no one has been denied care (yet) in your state, doesn’t mean your hospital systems aren’t implicated.

• Hey Virginia! Beef up your consumer protection laws. Leveraging state consumer protection laws to counter Trump only works if state consumer protection laws are robust. In Virginia, they’re not. Governor Abigail Spanberger and her new Democratic-majority legislature should change that by strengthening Virginia’s Consumer Protection Act. The Commonwealth can specifically prohibit “unfair” business practices in addition to “deceptive” ones, raise statutory damage caps, and explicitly make violations of federal law violations of state law.

• Work at a nonprofit litigation group in DC? Sue X under DC’s consumer protection law for producing biased and inaccurate results. Late last year, then-Missouri AG Bailey sent letters to Google, Microsoft, OpenAI, and Meta, accusing them of potentially violating consumer protection laws. Bailey claimed their AI chatbots produced factually inaccurate results that disfavored conservatives. Bailey’s letter was frivolous, but there is evidence that Elon Musk has biased his platform towards conservative speech and misinformation. That’s a potential violation of DC’s consumer protection law, which grants nonprofits standing to bring suit without having to demonstrate a specific injury to one of their members.

ABOUT THAT 60 MINUTES PAYOUT…

When Paramount’s 60 Minutes paid millions of dollars to settle Trump’s frivolous defamation claims, it may have crossed into federal bribery territory. The timing is hard to ignore: the payout landed just as Trump’s FCC was scrutinizing Paramount’s pending merger with Skydance.

Sure, Trump’s DOJ won’t charge Paramount or CBS. But here’s a take for Bari Weiss: Bribery isn’t just unethical, it’s also anticompetitive.

A bribe is designed to get an advantage in the marketplace — a contract, a vote, an FCC merger approval. And by definition, a bribe is “unfair” and “deceptive.” That makes bribery illegal under most state consumer protection statutes.

So even if corporations aren’t worried about federal prosecution for bribing President Trump, they should be worried about something else: a state AG with ambition.

FIGHTING FIRE WITH FIRE

🥊 California AG Bonta isn’t sitting on the sideline. In the wake of the disturbing news that Grok is producing an avalanche of nonconsensual, sexually explicit material, California’s AG announced his office is putting its investigative powers to use. They’ll look into what laws xAI may have violated, including the company’s “legal obligation to children as consumers.”

🥊New York is picking up consumer cases Trump dropped. Trump’s CFPB has dropped more than 20 cases, which could cost consumers over $3 billion. Fortunately, states have consumer protection laws too. When CFPB moved to dismiss its suit against Capital One, New York AG Letitia Jamessued the company on behalf of New Yorkers. She did the same after CFPB dropped a suit against Zelle’s parent company.

Counter Punch is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

• The crimes before Renee Nicole Good was shot dead

• How Governor Walz can go on offense

• Minnesota’s legislature should subpoena Kristi Noem

• Charging MAGA trolls for spreading disinfo on Renee Good

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But first, let’s talk about the lie at the center of it all.

Here’s renowned legal scholar J.D. Vance’s take on Jonathan Ross, the ICE agent who shot Renee Good:

“That guy’s protected by absolute immunity. He was doing his job.”

And here, by contrast, is the U.S. Court of Appeals for the Ninth Circuit:

“To be entitled to immunity…the defendant must show two elements: first, the act must have been within the scope of official authority; second, the defendant must have honestly and reasonably believed the act to have been necessary and proper under the circumstances.”

J.D. might have lost the second prong of the immunity test in his couch cushions, but the law is clear: Ross can be prosecuted under state criminal law if his actions were “unnecessary or improper” — even while “doing his job.”

So ask yourself: If a masked ICE agent shoots an unarmed woman in the face three times — a woman who is in a car, trying to drive away from that agent — are his actions necessary and proper? When his colleague prevented a doctor from coming to her aid, was that necessary and proper?

And don’t stop there. How “proper” do these sound?

• Shooting a praying pastor in the head with pepper balls.

• Throwing flash grenades and zip-tying children in an apartment.

• Sandwiching a sedan with kids inside between a pickup truck and SUV.

• Putting teenagers (and adults) in federally-banned chokeholds.

• Shooting so much tear gas that residents living near an ICE facility can’t breathe.

That list isn’t hypothetical. Every one of those incidents happened in the last year. And not a single ICE agent involved has been charged under state criminal law.

That’s not just a miscarriage of justice — it’s a standing invitation to violence. A message of impunity broadcast to ICE agents nationwide. A message that led to Renee Good’s death.

Yes, state prosecutions of federal officials have been rare in the past. But in the past, the federal government wasn’t deploying hoards of masked, highly armed, untrained officers to roam the streets of American communities. We aren’t living in the past. The facts on the ground have changed, and so our response must change too.

But here’s the crucial point: Federal immunity doctrine doesn’t have to change to hold ICE agents criminally accountable under state law.

A consensus is growing around this understanding. As we detailed just before the holidays, it was the basis for a state prosecution of FBI sniper Lon Horiuchi for his role in the Ruby Ridge standoff in Idaho – and it’s time for a few more states to road test it.

Reporting in Minnesota is already discussing the possibility of charging Jonathan Ross. But Ross should be the beginning, not the end. From shootings in Portland and Chicago to assaults in Massachusetts and California, ICE agents are committing acts that open them up to prosecution. Elected officials across the county need to realize the powers they have to hold ICE agents accountable — and they need to act.

We’ve got some ideas on how.

THE PUNCH LIST

• Are you a state AG? Investigate whether ICE agents are breaking criminal law — and not just when they murder citizens. Yes, homicide is illegal under state law. But so are aggravated battery, false imprisonment, and kidnapping. Local prosecutors and state AGs can charge ICE agents with these crimes if they didn’t honestly and reasonably believe that their actions were necessary and proper.

• Are you Governor Tim Walz? Launch a “Rogue Federal Agents Commission” to investigate the death of Renee Good and release its findings to the public. Jonathan Ross should face a jury. But the rules and verdicts of a court should not confine what the public learns about what happened in Minneapolis. Governor Walz can help by appointing a “Rogue Federal Agents Commission” to investigate the facts and federal policy decisions surrounding Renee Good’s death (and other concerning ICE incidents in the state). Appoint a prominent retired police leader to head it up. Ask the state legislature to give it subpoena power. And release its findings to the public.

• Been racially profiled by ICE? Bring a converse-1983 lawsuit. Some state laws allow residents to sue federal officials for violating their constitutional rights. (👋 California, Illinois, and New Jersey.) So when a federal agent pulls a U.S. citizen from their bed because of the color of their skin, that’s grounds for a converse-1983 lawsuit (it’s a legal theory, not a sneaker). And the agents involved could be on the hook for money damages. Are these lawsuits easy to win? No. But they can be won, and would make violating the Constitution more expensive.

• Are you Mary Moriarty? Prosecute the liars. Kristi Noem keeps lying about Nicole Good. While Good’s family may not be able to sue her for those lies (that type of immunity is well-established), civil defamation lawsuits aren’t the only game in town. At least, not in Minnesota where it’s a crime to knowingly defame someone. And while First Amendment die-hards may bristle at the mention of criminal defamation, such laws are most justified when they provide the only means of accountability for lies that touch on matters of public concern — like, where a federal official is apparently trying to shut down investigations into the shooting of a U.S. citizen.

• Have a law degree? Get familiar with the Federal Tort Claims Act. The FTCA allows individuals to recover damages from the federal government when federal employees commit torts. Yes, murder counts, but so does using excessive force or destroying property. The law has its limits, but it allows petitioners to build a factual record and put rogue federal officials in the spotlight.

  • Did an ICE agent assault you on video? Were you dragged out of your workplace into a van and left bleeding in a parking lot miles away? The FTCA is for you, too.

☎️ Have an FTCA claim? We can find a lawyer to litigate it. ☎️

• Are you in the Minnesota legislature? Send Kristi Noem and Greg Bovino subpoenas. Across the country, state legislatures have broad authority to subpoena witnesses, documents, and records to support their legislative mandates — including in Minnesota. If the U.S. Congress won’t perform appropriate oversight, state elected officials should. Sure, Noem and Bovino will fight the subpoenas. But it’s a fight worth having.

FIGHTING FIRE WITH FIRE

🥊 The Empire State strikes back. Responding to the situation in Minnesota, New York Governor Kathy Hochul came out in support of expanded legal options for New Yorkers harmed by ICE. In her state of the state address today, she introduced new converse-1983 legislation that would allow New Yorkers to sue federal agents over civil rights violations in state court.

🥊 Philly issues an early warning: FAFO. Philadelphia isn’t waiting for a crisis. District Attorney Larry Krasner warned that ICE agents or National Guard members who commit crimes in the city will be charged and held accountable to the fullest extent of the law.

🥊 Minnesota isn’t the only state investigating ICE. Last week, Oregon AG Dan Rayfield announced that state investigators were opening their own investigation into the shooting of two people by an ICE agent in Portland last week. This came after strong words from Oregon Rep. Janelle Bynum, who exhorted ICE to “Stop fucking with us.”

Counter Punch is a collaboration between Evergreen Legal and Salt River Valley Project — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

You’re receiving Counter Punch because Evergreen Legal and Salt River Valley Project thought you’d find it interesting. Have feedback? We’d love it! Want to talk more about an idea? Email us. Hate it? We’re sorry (and feel free to unsubscribe).

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This week, we’ve got ideas for how to put rogue federal officials in jail. A teaser:

• Homan’s tip line.

• A film recommendation for Deputy AG Todd Blanche.

• ❤️ to the Federal Tort Claims Act.

• ICE brought gas. Portland brought the law.

But first, let’s talk about the small town in Idaho that should keep Trump officials up at night.

It’s August 1992, and anti-government separatist Randy Weaver is pinned down in his cabin, surrounded by federal agents, after a surveillance operation went off the rails. Officers have shot Weaver’s dog and pointed a shotgun at his 14-year-old son, a Deputy Marshal has been killed, and Weaver’s family is refusing to surrender. In the ensuing standoff, FBI sniper Lon Horiuchi shoots three people, including killing Weaver’s unarmed wife, Vicki, who is holding a 10-month old baby.

The Ruby Ridge standoff, as it became known, sparked a flurry of civil litigation against the government. But then-U.S. Attorney General Bill Barr (yes, that Bill Barr) refused to charge any federal agent with a crime. That decision closed the door on criminal accountability…until it didn’t. In 1997, just as the statute of limitations was about to run out, local prosecutor Denise Woodbury brought state manslaughter charges against Agent Horiuchi for the death of Vicki Weaver.

As the 9th Circuit laid out, the case turned on two questions. First, was Horiuchi acting within the scope of his federal authority when shooting Weaver? The court quickly concluded he was. And second, did Horiuchi carry out his duties in an ”objectively reasonable” and “necessary and proper” manner? After conducting an exhaustive examination of the facts, the 9th Circuit concluded, in a landmark decision, that Hirouchi was not immune from prosecution under state law. While state prosecutors’ later dropped the case before it went to trial, the 9th Circuit decision remains good law.

Bottom line: A state official prosecuted a federal agent for actions taken during official duties and the case turned on whether the agent’s actions were reasonable. Now jump back to 2025 and ask: Is “reasonable” a word you’d use to describe Trump’s immigration enforcement?

Masked and armed federal agents — seemingly unconcerned with any consequences — patrol the streets of major American cities. Nearly every day there are reports that shock the conscience. A U.S. citizen shot five times by an ICE agent after honking her horn to warn of ICE’s presence. An elderly couple knocked to the ground for peacefully protesting. Children zip-tied and separated from their parents. Tear gas sprayed with such reckless abandon that dogs are vomiting and kids are sick in an apartment building adjacent to an ICE facility.

It’s obvious that Trump’s DOJ won’t discipline federal agents for their actions. But Ruby Ridge reminds us that when federal officials break the law, we don’t need the federal government to rein them in. States have the power to criminally prosecute rogue actors. That’s the legacy of Ruby Ridge.

And it’s not just criminal liability that rogue federal officials face, nor is it just ICE agents that face potential liability. Across Trump’s government, federal officials who break the law can be held accountable under state criminal and civil laws.

Have you accepted $50,000 in cash during a bribery sting? Did you oversee politically-motivated arrests at DOJ? Did you knowingly and intentionally violate a court order to detain people? Did you slap on a DOGE nametag to access data for your own private company?

…well, lawyer up, because we’ve got some ideas you should be worried about.

THE PUNCH LIST

• Are you a local prosecutor? Use your authority to investigate whether ICE agents are breaking criminal law. Local prosecutors and state AGs can uncover more facts about potential crimes committed by ICE than anyone else. Follow the lead of Colorado and put the Trump Administration on notice by launching investigations into reports of criminal conduct by rogue agents.

• Got a problem with Tom Homan? Flip his immigration “tipline” on its head and create a hotline for reporting federal abuse in your state. Trump’s border czar created an ICE tipline earlier this year to report supposed immigration violations. States can play this game too. Just look at NY AG Letitia James’s ”Federal Action Reporting Form,” IL Secretary of State Alexi Giannoulias’s hotline to report ICE agents that swap their license plates to avoid scrutiny, or CA AG Rob Bonta’s new online portal to report misconduct by federal agents.

• Are you Governor Wes Moore? Warn Trump officials they’ll face federal criminal liability down the road. The statute of limitation for federal bribery is five years. Federal wire fraud? Also five years. Extortion under the Hobbs Act? You guessed it: five years. Sure, Trump won’t enforce federal criminal laws against his own appointees and allies, but the next president surely can.

• Have a law degree? Get familiar with the Federal Tort Claims Act. The FTCA is the Trump 2.0 version of the Administrative Procedure Act. Yes, that’s a bad lawyer joke, but it’s also true: So much of Trump’s lawlessness is happening in the streets, not just in the Federal Register. The FTCA is one antidote — it allows individuals to recover damages from the federal government when federal employees commit torts like using excessive force or destroying property. The law has its limits (administrative exhaustion is… exhausting), but it allows petitioners to build a factual record, put rogue federal officials in the spotlight, and make violating the Constitution more expensive.

☎️ Have an FTCA claim? We can find a lawyer to litigate it. ☎️

• Are you a state legislator in Oregon? Extend statutes of limitations to ensure accountability post-Trump. Right now, states can prosecute federal officials under state law - and Trump’s pardon power does not extend to state crimes, as Colorado AG Phil Weiser recently reminded the President. But we get why it’s hard to bring these cases when Trump still holds the purse strings and threatens retribution. At the very least, states should sidestep Trump by extending statutes of limitations for crimes like assault, bribery, false imprisonment, and kidnapping. In the Beaver State, the statute of limitations for misdemeanor assault is two years — the legislature could extend it to four. It would send a strong signal to rogue officials: The actions you take now will follow you when Trump can no longer offer protection.

• Work for a state AG? Seek a court order enjoining rogue ICE agents from entering state property without a warrant. In Cedar Point Nursery v. Hassid, the Supreme Court held that government-compelled access to property — even brief, temporary access — is a per se taking that triggers the Fifth Amendment. States can use that holding offensively: if ICE is accessing state or local buildings without consent or judicial authorization, that’s an unconstitutional taking. AGs, cities, and counties can go to court and seek injunctions blocking further federal access to state schools, courthouses, prisons, and other facilities unless and until the federal government obtains a warrant or pays just compensation.

TODD BLANCHE IS NOT A LEGAL MOVIE BUFF

Assaulting a 79-year old car wash owner in Los Angeles. Causing blunt force trauma to a farmworker’s head during a raid in Ventura County. Breaking the car window of a U.S. citizen and veteran. Those are just a handful of the allegations against ICE that led to Reps. Nancy Pelosi and Kevin Mullin putting out a statement ahead of rumored raids in the Bay Area warning that California “state and local authorities may arrest federal agents if they break California law.”

In response, Deputy AG Todd Blanche sent a threatening letter to California elected officials calling potential arrests of federal agents “illegal and futile,” stating that federal agents are immune from state prosecution while “in the performance of their official duties.”

Did Blanche skip Laura Dern and Randy Quaid’s The Siege at Ruby Ridge? Yes, Blanche’s letter is correct that federal officials are generally immune when lawfully performing their “official duties” — but that’s not what is at issue here. State officials are calling for the investigation and prosecution of rogue federal agents acting beyond the bounds of what immunity protects — actions that are not, as the 9th Circuit said after Ruby Ridge, ”objectively reasonable.”

But don’t take our word for it. Ask the University of Wisconsin Law School.

FIGHTING FIRE WITH FIRE

🥊 ICE brought gas. Portland brought the law. Two weeks ago, Dan Jacobson and Jacobson Lawyers Group sued ICE for poisoning residents of an apartment building in Portland when chemical munitions were shot at protestors of a nearby ICE facility.

🥊 Protect and serve. In Minneapolis, Mayor Jacob Frey signed an executive order barring ICE from using city-owned spaces for staging their operations, and Police Chief Brian O’Hara warned that officers who don’t step in to protect people from the use of unlawful force by ICE agents will be fired. Mayors and chiefs around the country: your move.

🥊 Habba’s out. Back in June, the Campaign for Accountability filed a bar complaint against Alina Habba for her pattern of politically-motivated arrests, prosecutions, and investigations. A few months later, she’s out — forced to resign after a federal court ruled that her appointment was unlawful.

Counter Punch is a collaboration between Evergreen Legal and Salt River Valley Project — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.

If you want to read about cowardice and capitulation, read the Washington Post. This newsletter is for the doers and the agitators: the growing group of Americans who believe the only way we win is by countering the aggression of those doing the most harm — using the power we still hold.

You’re receiving Counter Punch because Evergreen Legal and Salt River Valley Project thought you’d find it interesting. Have feedback? We’d love it! Hate it? We’re sorry (and feel free to unsubscribe).

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This week, we’ve got ideas for countering Trump’s media takeover…

• Can settling a defamation suit with Trump violate state consumer protection laws?

• Brendon Carr’s rants on right-wing radio open the FCC up to litigation.

• Dem AGs 🤝 Clayton Act.

• Paramount-Skydance: a quasi-state actor?

• We sat down with the founding editor of Gawker. She’d like a word.

But first, let’s talk about the most important media company of 2025 you’re not reading about: Nexstar Media Group. The conservative media company owns 197 local TV stations across the US, more than any other company. And they’re on the hunt for more.

Late last month, Nexstar CEO Perry Sook floated a new tagline for the media giant. Nexstar, he said, is the “anti-fake news” organization. It doesn’t take a ton of market research to understand Sook’s intended audience.

And that’s the problem. The Trumpian rebrand came on the heels of Nexstar announcing plans to buy its broadcast rival Tegna for $6.2 billion, which would give it control of nearly 300 local news stations nationwide. For the deal to happen, the FCC will need to blow up restrictions that have been in place since 1964, and the Trump administration needs to approve the merger.

It’s not pretty, but Nexstar’s not alone. For the last year, American media companies have fallen over themselves to appease Trump. YouTube and Meta settled lawsuits for kicking Trump off their platforms after January 6th. Sinclair and Disney pulled Jimmy Kimmel off the air following his comments on the assasination of Charlie Kirk. News programs like CBS’ 60 Minutes paid millions of dollars to settle Trump’s frivolous defamation claims.

None of this is happening by accident — and some of it isn’t happening by choice. It’s the result of three distinct but interlocking features of Trump’s media power grab: consolidation, corruption, and retaliation.

Think about it. At the FCC, Brendan Carr just opened a comment period to relax long-standing ownership limits of local broadcast licenses (consolidation). The White House just leaked that it has “antitrust concerns” about Netflix buying Warner Bros. — convenient timing as Larry Ellison–backed Paramount scrambles to counter Netflix’s bid (corruption). And in federal district court, Trump is suing the New York Times and Wall Street Journal for defamation over reporting about the 2024 election and Trump’s birthday card to Jeffrey Epstein (retaliation).

The result is a pervasive feedback loop in which intimidation becomes a form of governance: federal power is used to consolidate media ownership and shape editorial behavior, editorial behavior shapes political narratives, and political narratives reinforce the administration’s ability to wield power unchecked.

But we’re not powerless. Just take the Kimmel saga: Some 7 million subscription cancellations later, Kimmel is back on the air, with more influence than ever. That’s how we Counter Punch. It’s about using our power to fight back and make an impact people can feel — or in this case, see on their screens. But mass consumer mobilization isn’t the only tool we have to challenge Trump’s media power play.

We’ve got some other ideas.

THE PUNCH LIST

• Care about corporate capitulation? Here’s an idea: Paramount’s 60 Minutes payout to Trump wasn’t just ugly, it was potentially illegal under federal and state law. 18 U.S.C §201(b) creates criminal liability for “bribery” when anyone “directly or indirectly, corruptly gives, offers or promises anything of value to any public official…to influence any official act.” The settlement between Trump and Paramount could meet that standard given Paramount’s pending merger with Skydance before the FCC. Of course, the DOJ isn’t going to bring charges against Paramount, but state consumer protection statutes generally prohibit unfair practices or deceptive business acts. Federal bribery sure seems like it would count.

• Work for a state AG? Introduce Nexstar to the Clayton Act. State AGs don’t need DC’s permission to block a merger, they can independently sue under the Clayton Act. In 2019, 14 state AGs sued to block T-Mobile and Sprint from merging into one of the nation’s largest wireless carriers even though the FCC and DOJ gave the merger a green light. They didn’t ultimately stop the merger, but they came close — and it provides a template AGs should get more comfortable using as the federal government taps out on antitrust enforcement and consumer protection.

Want to chat about an idea? Hit reply.

• Have a law degree? We think Brendon Carr’s recent rants are evidence the FCC illegally changed the renewal standard for broadcast licenses. Despite not officially announcing it, we think Carr’s recent rants on right-wing talk shows are evidence the FCC has already changed its renewal standard for broadcast licenses by: (1) requiring that licensee’s preference conservative viewpoints, and (2) prohibiting DEI practices by licensed entities. We’d argue these changes amount to final agency action that is contrary to law under the APA and assert an ultra vires claim alleging Carr acted outside his authority.

• Are you a member of the NYT Guild? File an abuse of process claim against Trump for bringing a malicious defamation claim. The legal tort of “abuse of process” is when a person uses a legal procedure for an improper, ulterior purpose such as to harm or extort someone. Arguably, Trump’s defamation claims are attempts to do exactly that: extort positive coverage of his administration. We doubt the NYT will sue. But can the NYT Guild?

• Are you Semafor’s Max Tani? You might want to ask around about Andrew Kilberg. He’s a former Trump admin official turned Nexstar attorney who recently helped the company successfully overturn the FCC rule barring a single entity from owning multiple “top four” TV stations in a market. As the FCC repeals a string of additional rules that stand in the way of Nexstar’s acquisition of Tegna, we’d love to know: Has Kilberg talked to anyone in the administration or the FCC about the merger?

IS PARAMOUNT A QUASI STATE ACTOR?

The White House’s perfectly timed leak about Netflix didn’t just shade the marketplace — it may have reshaped it. Paramount’s bid suddenly looks stronger because the executive branch put its thumb on the scale. That’s the kind of “mutual interdependence” the Supreme Court recognized in Burton v. Wilmington Parking Auth., where private conduct becomes inseparable from government power. And when a private actor benefits from a targeted regulatory assist, courts have held the conduct can be “fairly attributable to the State.” Lugar v. Edmondson Oil Co.

Then look at the receipts. Larry Ellison reportedly talked through potential CNN host firings with White House officials during Warner Bros. takeover talks. When a would-be media owner is allegedly workshopping personnel decisions with federal officials, it’s no longer purely private editorial judgment — it’s coordinated execution of a government-aligned objective. Under the joint-action test, that’s not just a bad look. It’s an argument.

And if Paramount is a quasi state actor? As the company becomes a de facto extension of the Trump administration subject to First Amendment, Due Process, and §1983 liability, editorial decisions, personnel moves, and merger strategy become constitutionally constrained and litigable.

THE FOUNDING EDITOR OF GAWKER WOULD LIKE A WORD

We pinged Elizabeth Spiers, the founding editor of Gawker, for her take on Trump’s media play:

“My advice to news orgs: don’t cave. The reward for capitulating to Trump is more extortion, and it undermines your organization’s credibility. For press advocates and Democrats: double down on what Trump is trying to suppress. These are not legitimate instances of defamation and there is no reason to allow Trump to launder reality to his liking. He’s telling you with these lawsuits what his weak spots are and what he doesn’t want the public focused on. Listen.”

FIGHTING FIRE WITH FIRE

🥊 After Fox News lied about Trump’s decision to send the National Guard into California, Gavin Newsom sued (h/t to our friends at the Legal Accountability Center for a 🔥 complaint).

🥊 Robbie Kaplan showed how shareholders could get in the game: After Jimmy Kimmel was suspended, Kaplan Martin LLP filed a books & records request on behalf of shareholders seeking documents related to Kimmel’s sidelining.

🥊 In September, Connecticut State Senator Matt Lesser wrote a letter to the state’s AG urging him to review the Nexstar-Tegna merger for violations of the Connecticut Antitrust Act. (Like we said — state law: Also a good hook for challenging national media mergers!) Let’s see more elected officials follow his lead.

Counter Punch is a collaboration between Evergreen Legal and Salt River Valley Project — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.