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Volume 108

Cornell Law Review Online

The War on Terror & Vigilante Federalism

Maryam Jamshidi

Associate Professor of Law at the University of Colorado Law School.

17 Oct 2023

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.

These older private subordination schemes carry several implications for Michaels and Noll’s important work. First, terrorism and immigration-related private enforcement demonstrate that no party or political movement has a monopoly on weaponizing private enforcement schemes to marginalize vulnerable groups. Rather, private subordination schemes can be and have been supported by both sides of the political aisle.

Second, terrorism and immigration-related private enforcement laws—all of which further the War on Terror’s policy objectives—underscore an argument Michaels and Noll gesture at but do not substantially unpack—namely how private enforcement can be used to identify so-called “enemies,” deprive them of their rights, and exclude them from broader notions of citizenship and national identity. Terrorism and immigration-related private subordination schemes reflect these dynamics while also highlighting the ways MAGA-era private enforcement laws similarly transform rights-bearing individuals into enemies of the state.

Finally, these older subordination regimes remind us of the ways the War on Terror has both seeded MAGA politics and created a category of security-obsessed citizen primed to generally participate in private subordination efforts. In particular, the War on Terror has encouraged Americans to understand themselves as vulnerable to and threatened by a host of foreign enemies—from terrorists seeking to blow up buildings to immigrant “hordes” threatening to burst through the border. It has encouraged some Americans to more vigilantly police their own daily lives and communities, particularly in relation to their children. MAGA has harnessed and exploited these phenomena by creating a new private subordination regime these Americans can use to target the latest list of “enemies.”

Part I of this Essay briefly describes the terrorism and immigration-related private subordination regimes that emerged from the War on Terror. Part II discusses the lessons these enforcement schemes bring to bear on MAGA-era private subordination laws. A brief conclusion follows.

To read this Essay, please click here: The War on Terror & Vigilante Federalism.