The War on Terror and Vigilante Federalism

13 Pages Posted: 16 Nov 2023 Last revised: 17 Nov 2023

See all articles by Maryam Jamshidi

Maryam Jamshidi

University of Colorado Law School

Date Written: October 17, 2023

Abstract

In their article, Vigilante Federalism, Jon Michaels and David Noll sound the alarm about the rising trend of “vigilante federalism” across various states. As Michaels and Noll describe this phenomenon, Republican-led jurisdictions have been passing private enforcement laws empowering private actors to bring civil suits targeting certain activities and communities, including abortion, LGBTQI persons, and teachers discussing issues of race and sexuality in the classroom. According to the authors, these “private subordination” regimes, which aim to marginalize already vulnerable groups, are a byproduct of efforts to promote a thoroughly white and fundamentally Christian vision of American identity.

The private enforcement schemes canvassed in Vigilante Federalism starkly contrast with the canonical view of private enforcement. For much of the twentieth and early twenty-first centuries, private enforcement measures were understood to support public policies and laws antithetical to subordination, like anti-discrimination norms and environmental protection. On Michaels and Noll’s account, private subordination regimes mark a relatively recent break with this history. Indeed, in their view, the fairly new phenomenon of “MAGA” politics—the brand of politics associated with former president Donald Trump—is the primary reason for this novel crop of oppressive, anti-egalitarian private enforcement statutes.

As this Essay attempts to demonstrate, however, private subordination schemes are not limited to the laws identified by Michaels and Noll. They are also neither exclusive byproducts of Trump-era politics nor state-level legislatures. Since well before the rise of MAGA politics, private enforcement schemes in the areas of terrorism and immigration have targeted and subordinated vulnerable communities—specifically Middle Easterners, Muslims, and undocumented immigrants. These terrorism and immigration-related private enforcement laws either emerged or were enhanced and expanded after the 9/11 attacks. In contrast to MAGA-era subordination regimes, these laws exist at both the federal and state level, often with bi-partisan support.

Keywords: National Security, Immigration, Terrorism, Civil Litigation, Private Enforcement

Suggested Citation

Jamshidi, Maryam, The War on Terror and Vigilante Federalism (October 17, 2023). Cornell Law Review, Vol. 108, No. 170, 2023, U of Colorado Law Legal Studies Research Paper No. 23-24, Available at SSRN: https://ssrn.com/abstract=4605512

Maryam Jamshidi (Contact Author)

University of Colorado Law School ( email )

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