The American Reformation: Part One

Part One: Tier 0 and Tier 1 of Effective Response to Fascism in America.

Image via Wikimedia Commons, painted by Ferdinand Pauwels, public domain

In February 1837, a professional slave catcher named Edward Prigg crossed the border from Maryland into Pennsylvania, found a woman named Margaret Morgan in York County, seized her and her children, and took them back to Maryland. Margaret had lived in Pennsylvania for five years. She was married to a free Black man named Jerry Morgan, and her children were born on Pennsylvania soil, which made them free under Pennsylvania law. Prigg appeared before no Pennsylvania court, obtained no warrant, and didn’t acknowledge that the children held any legal standing at all. Pennsylvania prosecuted him, the case reached the Supreme Court.

Justice Joseph Story, writing for an 8-1 majority, ruled that federal law governing the return of fugitive slaves superseded Pennsylvania’s attempt to protect her.¹ The ruling sent Margaret Morgan and her children back into slavery.

But Story’s opinion contained something that would outlast the Fugitive Slave Act, outlast slavery itself, and surface 155 years later in a courthouse in Montana when a county sheriff refused to run background checks for the federal government. Buried inside the ruling that sent Margaret Morgan back into slavery was a declaration that the federal government had no power to compel state officers to enforce federal law. The cooperation of state sheriffs, state judges, and state jails belonged to the states. It could be offered; it could not be commanded.

We’ll return to what happened next.

This is Part One of a public series accompanying the working paper “The Constitutional Architecture of State Opposition: A Taxonomy of Sovereign Posture Under Federal Authoritarian Capture and Electoral Autocracy,” currently available for public review and forthcoming in peer-reviewed journals.² The paper makes one central argument: American states already hold the constitutional authority to check, prosecute, and outlast a captured federal government. The tools exist, and the legal foundation is solid. What’s been missing is the recognition that those tools form a unified system, and that the system only works when deployed deliberately and together. This series unpacks that system in plain language, piece by piece, so that anyone who needs to understand it can.

This piece covers the first two tiers of the framework.

Tier 0 is cooperation. States administer federal programs, share law enforcement resources, and coordinate policy with federal agencies. Most governments do this most of the time. Tier 0 earns its name in this framework not because it requires explanation but because it sets the baseline. Every tier in this system, from non-cooperation to full constitutional confrontation, is equally available to any state under the same Constitution. Tier 0 is simply where most governments happen to stand.

Tier 1 is where a state stops helping.

In 2009, legal scholars Jessica Bulman-Pozen and Heather Gerken published a paper in the Yale Law Journal that gave a proper name to something states had been doing for a long time.³ They called it uncooperative federalism, and their core insight was that states hold power not just when they stand apart from the federal system but when they operate inside it. A state that administers a federal program controls, in practical terms, how that program actually functions. It sets priorities, allocates resources, and moves at its own pace. That administrative role creates leverage the federal government can’t simply override, because it needs the state’s machinery to make the program run. The servant role, Bulman-Pozen and Gerken argued, creates leverage.

What the framework this series explains adds to their work is the recognition that uncooperative federalism is one tier within a larger deployable architecture. Understanding it as a tier, with defined properties and a specific place in a larger system, changes how states can use it.

James Madison understood the underlying principle in 1788, before the Constitution had been ratified.

Writing in Federalist No. 46, Madison addressed what would happen if the federal government overreached. “The means of opposition to it are powerful and at hand,” he wrote. “The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union... would oppose, in any State, difficulties not to be despised.”⁴ Where the sentiment of multiple states aligned, he continued, such withholding would “present obstructions which the federal government would hardly be willing to encounter.”

Madison wasn’t describing a loophole. He was describing an axiomatic feature, built into the constitutional structure from the beginning as an intentional response to tyranny and inseparable from the most singular conceptual value that birthed this nation: consent of the governed.

The Tenth Amendment encodes the principle directly: “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.”⁵

Don’t forget that “or to the people” section, either.

Now we return to Margaret Morgan.

After the Supreme Court ruled in Prigg v. Pennsylvania that states couldn’t be compelled to enforce the Fugitive Slave Act, northern state legislatures moved fast.¹ Massachusetts, Pennsylvania, Connecticut, Rhode Island, Vermont, and New Hampshire passed laws forbidding state judges from hearing fugitive slave cases, prohibiting state sheriffs from participating in renditions, and closing state jails to anyone trying to hold freedom seekers in custody. The result, as contemporaries described it plainly, was that the Fugitive Slave Act became a dead letter in those states. The federal government retained the legal authority to enforce it. What it no longer had was the network of state officers and state facilities that enforcement had depended on, and it had nowhere near enough federal agents to compensate for what the states withdrew.

The slaveholding states responded with fury that produced the Fugitive Slave Act of 1850, a more aggressive federal law designed to override state non-cooperation through expanded federal enforcement powers and severe penalties for anyone who interfered.⁶ Northern states responded with more personal liberty laws, and between 1850 and 1860, federal authorities managed to return only approximately 332 people under the Act, a fraction of those they sought, because state non-cooperation had made enforcement practically impossible across too much of the country.⁷

The refusal of northern states to hand people back into slavery forged the doctrine that today allows a city to tell the federal government to conduct its own operations. That’s the legal lineage, direct and documented.

Three Supreme Court rulings built the modern version of the doctrine, each one extending it further than the one before.

In 1992, the Court decided New York v. United States, striking down a federal law that required states to take ownership of radioactive waste generated within their borders or regulate it according to federal standards.⁸ Justice Sandra Day O’Connor, writing for the majority, held that Congress can’t commandeer state legislatures into federal service. Democratic accountability requires that citizens know which government made which decision. When the federal government forces states to implement federal policy while insulating itself from the political consequences, it corrupts the accountability structure the Constitution was built to protect.

Five years later, two county sheriffs decided they agreed with her.

Jay Printz of Ravalli County, Montana, and Richard Mack of Graham County, Arizona, were ordered by Congress to conduct background checks on handgun purchasers under the Brady Handgun Violence Prevention Act.⁹ They refused, filed suit, argued the federal government had no constitutional authority to conscript state officers into federal enforcement, and took their case to the Supreme Court. Justice Antonin Scalia wrote the opinion, joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Thomas. The federal government, Scalia held, can’t commandeer state executive officers into federal service. “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers... to administer or enforce a federal regulatory program.”⁹

The wall those two gun-rights sheriffs built to resist a federal gun control mandate is the same wall every sanctuary city now stands on when it tells the federal government to conduct its own deportations.

In 2018, Murphy v. NCAA extended the doctrine further, striking down a federal law that prohibited states from authorizing sports gambling.¹⁰ Justice Samuel Alito, writing for the majority, held that Congress can’t order state legislatures to prohibit what they previously allowed. The anti-commandeering rule, he explained, exists to protect liberty by maintaining the balance of power between state and federal governments, to preserve political accountability, and to prevent Congress from shifting the costs of federal regulation onto the states.

Three rulings across three decades, the same constitutional principle applied and extended until it covers nearly every form of federal commandeering anyone has managed to devise.

This is happening right now, and the current wave of deployment has come primarily from Democratic governors and attorneys general responding directly to this administration’s attempts to conscript state and local governments into its mass deportation campaign. California Governor Gavin Newsom has signed legislation restricting where federal immigration agents can operate in his state, including schools, hospitals, and churches. Illinois Governor JB Pritzker signed additional enforcement limits in December 2025 and told Congress directly: “Illinois follows the law, but let me be clear, we expect the federal government to follow the law too. We will not participate in abuses of power.”¹⁴ Massachusetts Governor Maura Healey filed legislation in January 2026 banning warrantless civil arrests in courthouses and restricting ICE operations in sensitive locations across the state.¹⁵ New York Governor Kathy Hochul has held firm on refusing civil immigration enforcement cooperation, and when the administration’s border czar threatened to arrest her for it, she told him to go ahead.¹⁶

Attorneys general have moved on a parallel track. New York AG Letitia James led a coalition of 22 states and the District of Columbia in suing to stop the administration’s federal grant freeze.¹⁷ Rhode Island AG Peter Neronha co-led that effort and responded to Pam Bondi’s threats to defund non-cooperating jurisdictions directly: “It’s the tactic of a bully. And the only way to deal with a bully is to let them know that they’re not going to intimidate you.”¹⁸ Oregon AG Dan Rayfield has warned DHS that excessive force by its agents on Oregon soil will be referred for prosecution.¹⁹ The federal government has attempted twice to cut funding to non-cooperating jurisdictions; courts have blocked it both times.

If your governor or mayor isn’t doing these things, get them on board. Or get them to resign. Because if they won’t do either, they’re not just cowards. They’re worse than cowards. They’re co-conspirators. They’re helping the bad guys. Which makes them the bad guys.

The contemporary applications span the full width of American politics, and that breadth isn’t an accident.

Immigration sanctuaries are the most visible example today. Cities and states that decline to hold people past their release dates for ICE, that instruct their officers not to ask about immigration status, that refuse to share information with federal immigration agents, exercise exactly the authority Prigg, New York, Printz, and Murphy established.¹¹ The Ninth Circuit upheld California’s sanctuary law directly against a federal challenge, and multiple other circuits reached the same conclusion. The federal government wanted state cooperation; the Constitution said it couldn’t compel it.

Less visible but equally grounded are the Second Amendment sanctuaries that conservative states and counties have enacted in recent years. Montana, Missouri, and others have passed laws refusing state cooperation with federal gun enforcement, invoking the same anti-commandeering doctrine that the gun-rights sheriffs who built Printz established.¹² The doctrine doesn’t check which faction is deploying it.

Marijuana makes the underlying mechanics clearest of all, because no court fight was necessary. Ninety-nine percent of marijuana arrests in the United States have historically been made by state and local officers.¹³ When states began decriminalizing and then legalizing cannabis, they didn’t override federal law. They stopped enforcing it. The federal government discovered it had neither the personnel nor the resources to fill the gap across dozens of states simultaneously. Federal law remained on the books and became functionally inoperative anyway, through the withdrawal of the cooperation that had made it work.

That’s Tier 1 at its most fundamental. When enough governments stop helping, the federal government finds out exactly how much it needed them.

The abolitionists who pushed northern legislatures to close their jails to slave catchers in the 1840s weren’t working from the same political tradition as the Montana and Arizona sheriffs who refused a federal gun control mandate in the 1990s. The sanctuary cities standing on the wall those sheriffs built wouldn’t recognize themselves as natural political allies of the gun rights movement. None of that matters constitutionally. The doctrine belongs to whoever uses it, and it’s been used across the full width of American politics to protect whoever the federal government was coming for at that particular moment.

That’s the design.

Refusing to cooperate is the first move. The next move is building something the federal government can’t touch regardless of whether a state cooperates, something that doesn’t require a confrontation to be useful because it changes the terms of any potential confrontation before it begins. That’s Tier 2, and it’s the subject of the next piece in this series.

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Notes

¹ Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842).

² Armitage, C. (2026). The constitutional architecture of state opposition: A taxonomy of sovereign posture under federal authoritarian capture and electoral autocracy [Working paper].

³ Bulman-Pozen, J., & Gerken, H. K. (2009). Uncooperative federalism. Yale Law Journal, 118(7), 1256–1310.

⁴ The Federalist No. 46 (J. Madison, Jan. 29, 1788).

⁵ U.S. Const. amend. X.

⁶ Fugitive Slave Act of 1850, 9 Stat. 462.

⁷ Campbell, S. W. (1970). The slave catchers: Enforcement of the Fugitive Slave Law, 1850–1860. University of North Carolina Press.

⁸ New York v. United States, 505 U.S. 144 (1992).

⁹ Printz v. United States, 521 U.S. 898, 935 (1997).

¹⁰ Murphy v. National Collegiate Athletic Association, 584 U.S. 453 (2018).

¹¹ United States v. California, 921 F.3d 865 (9th Cir. 2019).

¹² Somin, I. (2025, January 6). Sanctuary policies in a federal system. State Court Report. https://statecourtreport.org/our-work/analysis-opinion/sanctuary-policies-federal-system

¹³ Marijuana Policy Project. (n.d.). State marijuana regulation laws are not preempted by federal law. https://www.mpp.org/issues/legalization/state-marijuana-regulation-laws-are-not-preempted-by-federal-law/

¹⁴ Pritzker, J.B. (2025, June 12). Testimony before the House Oversight and Accountability Committee. C-SPAN.

¹⁵ Lannan, K. (2026, January 29). Healey seeks to limit courthouse immigration arrests, cooperation with ICE. GBH News. https://www.wgbh.org/news/local/2026-01-29/healey-seeks-to-limit-courthouse-immigration-arrests-cooperation-with-ice

¹⁶ Associated Press. (2025, June 12). New York, Illinois governors dare Trump to arrest them over immigration policies. Axios. https://www.axios.com/2025/06/12/walz-hochul-pritzker-sanctuary-state-congressional-hearing

¹⁷ Rhode Island Attorney General’s Office. (2025, January 28). Attorney General Neronha co-leads 22 states and the District of Columbia in suing to stop Trump Administration from withholding essential federal funding. https://riag.ri.gov/press-releases/attorney-general-neronha-co-leads-22-states-and-district-columbia-suing-stop-trump

¹⁸ Blad, E. (2025, August 19). Trump administration vows to ‘come after’ sanctuary states and cities, despite court setbacks. Stateline. https://stateline.org/2025/08/19/trump-administration-vows-to-come-after-sanctuary-states-and-cities-despite-court-setbacks/

¹⁹ Rayfield, D. (2026, January 7). Democratic state AGs will lead opposition to Trump in new year. Stateline. https://stateline.org/2026/01/07/democratic-state-ags-will-lead-opposition-to-trump-in-new-year/