The Lawfare Podcast Lawfare Daily: Entrepreneurial Federalism and the New National Security, with Ashley Deeks and Kristen Eichensehr
Jan 15, 2026
Ashley Deeks, a law professor at the University of Virginia, and Kristen Eichensehr from Harvard Law School dive into the concept of 'entrepreneurial federalism,' where states actively engage in national security policy. They discuss state actions like sanctions and TikTok restrictions and the legal implications of these initiatives. The conversation highlights the importance of preserving state powers, the complexities of federal-state relations, and offers practical advice for states in crafting laws. Their insights reveal how a shifting national security landscape challenges traditional governance.
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States Are New National Security Actors
- States increasingly act on national security using traditional police powers rather than explicit foreign policy tools.
- Actions include bans on drones, real estate restrictions, TikTok limits, and university partnership blocks.
Federal Absence Leaves Courts To Decide
- Many high-profile state national-security measures face litigation, yet the federal government often stays out of court.
- That absence leaves judges to decide preemption without consistent federal guidance.
What Makes Entrepreneurial Federalism Different
- 'Entrepreneurial federalism' differs from cooperative or dual federalism because states act independently in federal domains.
- States frame their moves defensively to protect citizens, not to set foreign policy.
