When Washington Splits, the Statehouse Is Where Republicans Still Govern

Let us start by saying the plain thing, because pretending otherwise insults you. Democrats won the House and the Senate on November 3, 2026. When the new Congress is sworn in on January 3, 2027, Republicans will be the minority in both chambers. Donald Trump remains President, and that matters, but the lawmaking power of Congress will no longer be ours.

Now, you can do two things with that fact. You can spend the winter on the porch, shaking your head at the weather. Or you can remember something that the folks who wrote the Constitution built into it on purpose: Washington is not the only place where laws get made. There are fifty other capitals. Every one of them has a statehouse, a governor's office, an attorney general and a calendar. The founders were not tidy people, and they left the country with an enormous amount of unfinished governing space, and they put the key to most of it in the Tenth Amendment.

This post makes the case that the conservative agenda has places to go, and it uses the mechanisms already laid out in this library. I'm not going to count seats or predict what comes next. I'm going to tell you what a governor, a legislature or an attorney general can actually do, and how.

The text

Here is the Tenth Amendment, all of it: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

That is a statement about structure, not about parties. It says the national government has the powers the Constitution gives it, and everything else belongs to the states or to the people. Education, most criminal law, family law, professional licensing, property law, local taxation, public safety, most of the rules that touch a family's daily life: those are state matters. A Congress run by either party can write tax law, fund the military and regulate interstate commerce. It cannot run your school board.

This is why the stakes of a congressional election can look smaller from the kitchen table than they do on the cable channels. A lot of the law that touches your family never goes through Washington at all.

Five things a state can do that Congress does not control

Here are five areas where a state can act, and where the vote in Congress does not hold a veto. The states hold what lawyers call the police power, the general authority to protect health, safety and welfare inside their borders, and that is a bigger toolbox than most people realize. Let me take the tools one at a time.

1. Tax law

States set their own taxes. They choose whether to have an income tax and at what rate, how to tax property, what to exempt, and how to treat sales and business. The tradeoffs of the income tax are laid out in Income Tax or No Income Tax, and What Each Choice Costs a State, and your own property tax bill is set by your state and county, not by Congress.

The key point is that a state which lowers or simplifies its taxes does not need a single vote in the U.S. Capitol. And because people and firms can move, as Interstate Competition Is Why States Cannot Afford to Be Lazy explains, a good tax policy in one state creates pressure on its neighbours. California's Proposition 13, passed in 1978, is the proof that a tax revolt can start in one state and reach every statehouse; a revolt that began with two California citizens and a ballot measure.

2. Schools

The Constitution does not mention schools, which is the whole point. Education is a state responsibility. A state that wants to give parents a choice among schools can do it by statute, through vouchers, tax-credit scholarships, education savings accounts or charter schools, as compared in Vouchers, Tax Credits, ESAs and Charters Compared for State Lawmakers. The Supreme Court's decisions in Trinity Lutheran, Espinoza and Carson have cleared away the main legal obstacle in many states, as The Blaine Amendments and the Century-Old Fight Over Religious Schools explains.

Nothing about that requires a majority in Congress. It requires a governor, a legislature and a good bill.

3. Licensing and work

Who may cut hair, braid hair, arrange flowers or drive a delivery truck is decided by the state. A legislature that wants to lower the barriers to work can repeal or relax a licensing board's rules. The hair-braiding license is the classic example of a rule that blocks people from earning a living. Whether a state is a right-to-work state is also a state choice under the Taft-Hartley Act, which lets each state decide.

4. Public safety

Most criminal law is state law. Bail, sentencing, police funding and the rules of prosecution are decided in statehouses and county offices. A state can pass laws on those subjects, and an attorney general can enforce them, regardless of what Congress does.

5. The courtroom

The attorney general is the state's lawyer, and as Your Questions About What State Attorneys General Do, Answered explains, an attorney general can defend the state's laws, sue to enforce them and join multistate challenges to federal action. The challenge to the Affordable Care Act in NFIB v. Sebelius is the model: more than two dozen states went to court, and the Supreme Court, in 2012, held that Congress could not coerce states by threatening to withdraw existing Medicaid funds. The case did not stop the law, but it created a limit on federal strings that applies to every program Congress writes.

What the Constitution protects

There is a second reason the states are a safe harbour: the Supreme Court has held that Congress cannot simply order state governments around. In Printz v. United States in 1997, the Court held that the federal government cannot compel state officers to carry out a federal regulatory program. In Murphy v. NCAA in 2018, the Court struck down a federal law that had told states what they could not legalize, holding that Congress may regulate individuals, but cannot command a state legislature to pass or refuse to repeal a law. And in South Dakota v. Dole in 1987, the Court upheld a federal drinking-age incentive but said conditions on federal money must meet limits, including that they be related to the program's purpose.

This "anti-commandeering" principle protects every state, which is a good reason to keep it strong. The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities makes the point that a rule that shields a red state from one administration shields a blue state from another. We should defend the principle even when we do not like what it protects, because it is the principle itself that is valuable.

The strongest objection

Here is the best argument against the whole idea, stated fairly. Federal law is supreme. When Congress passes a law within its powers and a state law conflicts, the state loses. The federal government writes the tax code that most families pay, controls the immigration system, runs the military, sets the money, and regulates the flow of commerce across state lines. If Washington is in the hands of the other side, the objection says, then talking about the states is a way of sounding busy. Most of what really matters about a family's finances and security passes through federal channels, and a movement that settles for the statehouse has surrendered the field.

That deserves a straight answer, and here it is.

One, the objection is right about the federal sphere, and I will not pretend otherwise. A state cannot repeal a federal tax, rewrite the immigration code or reorganize the armed forces. Federal law is supreme where the Constitution gives Congress power, and conservatives should respect that, because we insist on the same supremacy when we hold the pen.

Two, the objection overstates the reach of the federal sphere. Look at the list of what touches a family: the school, the local tax bill, the licence for a trade, the rules of the road, the courthouse, the zoning board, the police. Those are state and local. A movement that wins there changes the daily experience of its voters.

Three, the states have always been the place where national policy was tested. The welfare reform of the 1990s is the clearest case. States under both parties experimented with work requirements and time limits under federal waivers, with Wisconsin under Governor Tommy Thompson and Michigan under Governor John Engler among the best known, and the successful ideas became the model for federal law. How the States Rewrote Welfare Before Washington Finally Caught Up tells how that worked, and divided government has produced real law before. Governor Reagan did the same thing in California in 1971, when he bargained a welfare law out of a Democratic legislature. The states are not a consolation prize. They are where the ideas that win nationally are first proved.

Four, a movement that governs well somewhere is the best argument for governing everywhere. Voters judge by results. A state that cuts a tax and sees its economy hold, or opens school choice and sees families use it, produces evidence that no speech can match.

What Congress will still do, and what the minority can do there

I do not want to suggest that the Capitol no longer matters to us. It does. Republicans will not control the floor of either chamber from January 3, but the minority has real tools, and What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor lays them out. The Senate's rules give a minority leverage. The courts matter too, and judicial confirmations follow their own calendar. And the President remains Donald Trump, which means the executive branch is not part of the story that changed on November 3. What changed is the lawmaking majority in Congress.

The point of the state strategy is not to give up on Washington. It is to make sure the movement does not put all of its hopes in one building.

A hypothetical: one state, one year

To make this concrete, picture a state, a hypothetical one, where Republicans hold the governor's mansion, the legislature and the attorney general's office. The governor wants three things: simpler taxes, a school choice program and fewer licensing requirements. What does the path look like?

1. The governor puts the three bills in the budget message and the legislative agenda. (See What a Governor Can Actually Do and What Only the Legislature Can for what the governor controls and what only the legislature can do.)
2. The legislature moves the bills through committee and floor, following the steps every state bill follows.
3. The governor signs, or the legislature overrides a veto, depending on the state's rules.
4. When opponents sue, the attorney general defends the laws.
5. If the voters want a faster route, the state may allow an initiative, by collecting signatures.

Notice that every step in that list happens at home. Many legislatures meet in January, so the work can begin within weeks of the new Congress. If you want to know what a state with full control can accomplish, Three Imaginary States Show What a Trifecta Really Buys You works through the options.

I should add the caution a straight shooter owes you. Controlling the pen does not guarantee a good result. Bad bills, rushed drafting and special favours can do as much damage in a statehouse as in the Capitol. The standard still applies: write simple laws, defend them well, and measure what they do. (Yes, some statehouse bills are bad. A few read as though they were drafted by a committee that never met, and would have trouble getting past the building inspector.)

The bottom line

• Democrats won the House and the Senate on November 3, 2026, and Republicans will be the minority in both chambers when the new Congress begins on January 3, 2027. Donald Trump remains President.
• The Tenth Amendment reserves to the states and the people every power the Constitution does not give Washington, and that includes taxes, schools, licensing, most criminal law and much of the law that touches a family.
• Governors, legislatures and attorneys general can pass and defend law without a vote in Congress, and cases like NFIB v. Sebelius, Printz and Murphy give states real protection against federal commands.
• The objection that federal law is supreme is right where the Constitution gives Congress power, but most of what touches a family is state and local.
• Pick one thing that belongs to your statehouse, find your state's bill, and call your legislator before the January sessions begin.