How States Could Constitutionally Assume Abandoned Responsibilities of the National Government

How States Could Constitutionally Assume Abandoned Responsibilities of the National Government  

The doctrine of protective resumption offers a way to safeguard the rights of citizenship when the issue is not how powers are being exercised but how they are not.
By John C. Eastman and Stephen Balch August 10, 2021


We propose calling this the doctrine of “protective resumption” whereby, finding that the national government through negligence, inability, or malice had ceased to meaningly perform one or more of its core functions—thus endangering the health, safety, and welfare of a state’s citizens—the states either severally or acting in concert among themselves, could resume their core police power functions without being preempted by federal law. The states, it should be stressed, would not thereby be taking over national government functions, they would only be shielding, via recognized police powers, their citizens from the effects of these functions’ abandonment. This distinction is important since it would place limits both on what the states could do and how long they could do it. Moreover, it would not allow them to exercise any powers specifically denied the states by the U.S. Constitution.