When Federal Courts Retreat, States Must Build the Guardrails: Why the Colorado CARE Act Is Constitutional Architecture

Mark Fukae
Mar 7
6 min read

The Domestic Front: The quiet evidence of a life on hold-medicine, notes, and cold coffee-sits in the shadow of the institutions that hold the power to change it. Behind every policy debate is a kitchen table where a caregiver is doing the math on survival. — **The Domestic Front:** The quiet evidence of a life on hold-medicine, notes, and cold coffee-sits in the shadow of the institutions that hold the power to change it. Behind every policy debate is a kitchen table where a caregiver is doing the math on survival.

Part IV of 21st Century Guardrails examines judicial abandonment, economic shocks from unauthorized war, and why Colorado can build what Washington won't.

By Mark Fukae, Founder - CASI - Caregiver Advocacy Support Initiative

Date: March 7, 2026

My wife said it quietly, the way she says most important things.

Just stop. Be kind.

We were early into caregiving for my mother, and I was still in the phase where I thought the right response to confusion was clarity. She'd say something that wasn't quite right, and I'd gently, carefully correct her. I thought I was helping.

My wife watched this for a while.

Then one evening she said it. Not as a rebuke. Just as the truth she'd already figured out that I hadn't yet.

Just stop. Be kind.

I think about that lesson every morning when my mother-in-law finds my wife in the kitchen to quietly relay what happened overnight. Where my mother tried to go. What she said. The particular relay our household has developed without anyone planning it.

And I think about it every time I watch Washington fail to do the same thing for families.

What Courts Were Supposed to Do

For most of American constitutional history, the judiciary functioned as institutional memory-the ballast that kept the constitutional ship level even when political storms raged.

When presidents overreached, courts said: not that far.When Congress abdicated, courts said: you can't hand that away.When agencies weaponized authority, courts said: show your work.

The ballast has shifted.

The Supreme Court has embraced unitary executive theory in ways the framers explicitly warned against. That project accelerated through Seila Law, the 2024 presidential immunity ruling, and the Court's current willingness to overturn Humphrey's Executor-the 90-year-old precedent allowing Congress to create independent agencies insulated from political control.

If Humphrey's Executor falls, the president gains sweeping removal power over the FTC, NLRB, FCC, and agencies families depend on to function without partisan interference.

What we have now is a constitutional architecture where the executive acts first, Congress performs outrage for cameras, and the courts-when they show up at all-often arrive after the damage is done and call it legal.

What Happened This Week

February 28, 2026: The United States and Israel launched military strikes against Iran-Operation Epic Fury-without a congressional authorization vote. Announced via an 8-minute Truth Social video at 2 a.m.

March 4: Senate War Powers Resolution failed 47-53 (Senator Fetterman broke Democratic ranks)

March 5: House War Powers Resolution failed 212-219 (only 2 Republicans crossed over)

Speaker Johnson: "We are not at war."

Reality: Six U.S. service members killed. Dignified transfer at Dover on Saturday. Defense Secretary Hegseth says the operation could last 8 weeks.

Courts: Silent.

They have a long record of treating military action as "political questions"-meaning not our problem.

The war continues with no authorization vote, no formal declaration, no judicial checkpoint.

This is not constitutional interpretation. This is constitutional abandonment.

The Price Lands on Families

Strait of Hormuz (20% of world's oil): Effectively closed. Tanker traffic dropped from 24 per day to near zero. Over 150 ships stranded.

Oil prices: Up 10%+

Fertilizer prices: Egyptian urea up 35% in one weekProjected inflation: 2.4% (January) → 3% (year-end) if prices hold

Qatar: Halted LNG production after attacks. European natural gas futures doubled in 48 hours.

DHS shutdown (since February 14): TSA workers approaching first missed paycheck. Coast Guard grounded aircraft. FEMA can't make disaster recovery payments. CISA (cybersecurity for hospitals and energy grids) operating at limited capacity during a war with Iran.

Every one of those numbers lands on caregivers.

Gas tanks for medical appointments. Medication costs through disrupted supply chains. Household budgets already stretched from tariff-driven inflation now absorbing war-driven inflation.

Why Caregivers Are the Diagnostic Class

I know this from the morning kitchen relay, and from fourteen years of working in schools where 90,000 children's family situations are the first evidence I see of what's happening in the larger system.

When federal systems fail-when courts retreat, Congress abdicates, the executive expands-consequences don't land on institutions first.

They land on families.

They land on the veteran whose disability claim is stalled because the processing agency has been reorganized twice during a shutdown.

They land on the woman whose mother's Medicaid renewal is delayed because a federal rule was vacated by a court doctrine that changed without warning.

They land on the family absorbing a second or third deployment because the war that started without a vote continues without an endgame.

They land on the employed caregiver who loses their job because their employer never had to accommodate them-because Congress never passed the law, because courts never found the protection, because the system decided they were invisible.

When guardrails fail at the top, the fall lands at the bottom.

The bottom is us.

Colorado Cannot Fix the Supreme Court-But We Can Build What They Won't

I want to say this plainly, because I've been in enough legislative meetings to know that clarity matters.

Colorado cannot restore war powers enforcement.Colorado cannot compel federal courts to show up.Colorado cannot prevent the next shadow docket order eroding family rights.

What Colorado can do: build the infrastructure federal courts are no longer building.

We can use state police powers-health, safety, welfare-to construct state-level architecture that absorbs shock when Washington fails, sustains people doing work the system ignores, and holds the line on rights federal courts have made unstable.

That is not defiance. That is federalism.

That is exactly what the framers meant when they reserved powers to the states.

The CARE Act as Constitutional Architecture

The Colorado CARE Act does three things simultaneously:

1. Shock Absorber

When unauthorized war drives energy toward $100 per barrel, families absorb the cost. The CARE Act ensures caregivers don't lose jobs while carrying that weight.

Workplace protection for caregivers is economic stabilization policy.

Full stop.

2. Caregiving Infrastructure

Every week of war: more casualties, more veterans with PTSD and traumatic brain injury, more families navigating invisible injuries.

Every week of DHS dysfunction: more instability in agencies families depend on.

Caregivers are the infrastructure that never shuts down.

DHS can close. Courts can retreat. Congress can deadlock. Federal agencies can reorganize into dysfunction.

The caregiver gets up in the morning anyway.

The CARE Act says: we see that work. We recognize it. We protect it.

This is infrastructure investment. Not social services. Infrastructure.

3. Constitutional Guardrail

Federal courts have allowed rights to become unstable. Justice Sotomayor: "No right is safe in the new legal regime the Court creates."

Colorado can build what federal courts haven't.

When the state recognizes caregiver status as a protected class under CADA, we're not waiting for a Supreme Court that has issued more than 20 shadow docket orders this term.

We're creating stable, enforceable rights at the state level that don't depend on a federal judiciary that has repeatedly failed families.

That is a guardrail.

What Repair Actually Looks Like

"Repair the courts" sounds federal.

It's not-or not only.

Repair means restoring the function courts were supposed to perform: stabilizing constitutional order when other branches overreach.

That function is underperformed federally.

So the question shifts: where does legitimate authority still exist to perform it?

Colorado has that authority.

The CARE Act is built at exactly that level-state police powers, CADA framework, zero general fund appropriation, Medicaid savings projections making the fiscal case without asking for new spending.

Designed to function regardless of what Washington does next.

That's not a bug. That's the architecture.

The Redirect

When I learned to stop correcting my mother and start redirecting her, I wasn't giving up on reality.

I was accepting that the path back to where she needed to be didn't run through argument.

It ran through patience. Presence. Building small moments of stability she could stand on.

That's what the CARE Act asks Colorado to do.

Federal courts won't build this.Congress won't build this.The war that started without a vote won't pause while we wait for Washington to remember its constitutional role.

So we build it ourselves.

In the morning relay. In the redirect. In the quiet work of holding a household together while the larger system sorts itself out.

That's what states are for. That's what caregivers already know.