What Is Oppositional Federalism?

Where uncooperative federalism says “we will not assist,” oppositional federalism says “we will actively pursue accountability through the tools available to sovereign states.” In practice that means state attorneys general prosecuting federal officials under state law, model legislation that closes the loopholes federal capture has opened, lawsuits against federal agencies operating on state soil, and coordinated action across state lines.

It does not require formal secession or a constitutional crisis. It requires states to stop deferring to federal authority and start using the powers they have been voluntarily leaving on the table.

The constitutional authority to confront a captured federal government already exists. It rests on dual sovereignty, on anti-commandeering, on the McCulloch valid-exercise principle, and on the limits of Supremacy Clause protection when a federal officer’s conduct is unlawful. A conviction won in state court for a state crime is beyond the reach of a federal pardon.

Oppositional federalism is one posture in a larger framework. Armitage’s SSRN paper sets out five: cooperative federalism, uncooperative federalism, soft secession, oppositional federalism, and constitutional non-compliance. A state can operate at different tiers in different policy areas at the same time. Oppositional federalism is the level above soft secession, where a state moves from building its own capacity to actively working against unlawful federal action.

The full framework is set out in Oppositional Federalism: A Taxonomy of State Constitutional Postures Under Authoritarian Capture on SSRN. Soft secession, the tier below it, is described on its own page.