The next hour

The Constitution already holds every tool a state needs to refuse a captured federal government, build around it, prosecute its officers and outlast it. This lecture is the map.

Portland, Oregon · July 15, 2020

Federal agents pulled Mark Pettibone into an unmarked minivan, and Oregon answered with a federal lawsuit.

Shortly after 2 a.m., four or five men in camouflage grabbed Pettibone as he walked home from a protest and drove him, his own beanie pulled over his eyes, to the garage of the federal courthouse. Oregon’s attorney general filed a federal lawsuit within two days. Seven days later a federal judge denied the restraining order, holding that the state lacked standing.

Not one agent was ever charged.

York County, Pennsylvania · April 1, 1837

Pennsylvania prosecuted the slave catcher who seized Margaret Morgan, and a state court convicted him of kidnapping.

Prigg v. Pennsylvania · 1842

When enough governments stop helping, the federal government finds out exactly how much it needed them.

Two abductions, two states that held the authority to respond

One state used what its sovereignty made available. The other filed a lawsuit and watched the federal officials who had violated state law walk away.

The architecture has always been there.

What the scholarship expects

The scholarship on federalism and democratic backsliding has reached a pessimistic consensus: the states lose.

States get isolated and crushed because they deploy individual tools haphazardly, without recognizing that those tools belong to a unified constitutional architecture.

Where the paper sits in the literature

The existing literature theorized Tiers Zero and One. The architecture maps the three tiers it never had occasion to enter.

What the condition is called

How the condition is built

Each purge, each captured inspector general, each closed ethics office and each loyalty test shrinks the coalition the leader needs.

Political safeguards depend on the institutions capture targets first. The constitutional infrastructure that keeps working is the part that never depended on them.

The vocabulary · 1 of 3 · The taxonomy

A concept without a name stays invisible.

The vocabulary · 2 of 3 · The doctrine

None of this is new doctrine. The contribution is recovery.

The vocabulary · 3 of 3 · The structure

One system, assembled and deployed at the same time.

Five tiers of state constitutional posture, numbered from zero.

Five categorical positions. A state can hold a different one in every policy domain, and most states sit at Tier Zero in most domains in most years.

Tier Zero · Cooperative federalism

The federal government writes the policy. The states make the policy work.

Tier One · Uncooperative federalism · The record

The federal program stayed on the books every time. What changed was the state’s contribution of its officers and its facilities.

Tier One · Uncooperative federalism · 2025 to 2026

States withdrew their officers first. In 2026 the fight moved to their databases.

Tier Two · Soft secession · The record

States build first. The federal apparatus follows.

Tier Two · The objection and the arithmetic

Several American states have populations and economies many times larger than countries that fund their own safety nets and balance their own books.

Soft secession describes states recognizing they already have the capacity to function as sovereign actors and building the institutional infrastructure to act on it.

Tier Two · Soft secession · 2025 to 2026

When the Centers for Disease Control stopped being a partner, four states wrote their own vaccine guidance within two weeks.

Tier Two is the infrastructure layer under every higher tier.

Tier Three · Oppositional federalism

The federal badge has never been a categorical exemption from state criminal law.

A state actor with criminal jurisdiction over conduct on state soil holds authority to prosecute a federal official whose conduct violates state law and whose federal accountability mechanisms have refused to act. The case proceeds in state court, under state law, against the official by name, with a sentence state authorities enforce and no pardon the federal executive can sign.

Tier Four · Constitutional non-compliance

“Refusing to help is not the same as impeding.”

The Ninth Circuit, adopting the district court’s words, upholding the California Values Act in United States v. California, April 18, 2019. Tier Four is a state’s refusal to administer a federal command it holds to exceed federal constitutional authority, built as a competing legal regime of its own.

Tier Four · Constitutional non-compliance · The record

Tier Four at scale has repealed the federal command itself.

Tier Four · Where it stops

The Massachusetts model operated inside the line. The Wisconsin model operated outside it, and the architecture never claims that ground.

Tier Three in depth · Dual sovereignty · Gamble v. United States, June 17, 2019

Tier Three in depth · The pardon wall

Article II lets the President pardon “offenses against the United States.” A state conviction sits on the other side of that wall.

Chief Justice Taft, for a unanimous Court in Ex parte Grossman (1925): the words were added “to make clear that the pardon of the President was to operate upon offenses against the United States, as distinguished from offenses against the States.”

Tier Three in depth · The Neagle-Johnson-Long test

Federal officer immunity has two prongs that both must be met, and personal criminal conduct fails both.

The conduct

A federal officer’s act violates state criminal law on state soil.

Prong one

Was the act authorized by federal law?

Prong two

Was it no more than necessary and proper to fulfill the federal duty?

State prosecution proceeds

Removal to federal court changes the courtroom. The federal judge applies this same test.

Immunity attaches

In re Neagle (1890): a deputy marshal under specific federal orders to protect a Justice, who shot the man attacking him.

Tier Three in depth · Federal officer removal · 28 U.S.C. § 1442

Every federal defendant will move the case to federal court. Removal changes the courtroom and nothing else.

Tier Three in depth · The record of state prosecutions of federal officers

States have prosecuted federal officers in every period of American history, and no court has ever held that they cannot.

Tier Three in depth · Who stopped the prosecutions

Where state prosecutions of federal officers have failed, they have failed because elected state officials decided to stop pursuing them.

The doctrine that authorized both prosecutions remained intact. The architecture functions when state actors choose to use it and falls dormant when they choose not to.

Tier Three in depth · Hennepin County, 2026

Mary Moriarty charged two federal immigration officers under Minnesota law. The federal answer has been to withhold the evidence in the third case.

The doctrine was ready in 1920. The prosecutor arrived in 2026, and every county in this room has one with the same authority.

Tier Three · Track two in 2026 · Model legislation and the courts

Facially neutral statutes survive. Statutes that single out federal officers fall. In 2026 the courts proved the paper’s second-track rule.

The doctrine

Each tier rests on a different body of settled law, and the doctrines do not collapse into each other.

The doctrine · Anti-commandeering

The wall two gun-rights sheriffs built against a federal gun law is the wall every sanctuary city stands on today.

Sheriff Jay Printz of Ravalli County, Montana, and Sheriff Richard Mack of Graham County, Arizona, refused to perform the Brady Act’s background checks and sued in 1994. Two county officers, acting alone, produced the doctrine that protects every state and local refusal of federal commandeering in the country.

The doctrine · The valid-exercise principle

Article VI binds state officials to federal laws made “in pursuance” of the Constitution, and to nothing else.

This principle is Tier Two’s foundation. The Bank of North Dakota invokes no federal authority and depends on no federal cooperation, so the federal banking system has nothing to preempt. Covered California occupies state regulatory ground the federal exchange never displaced.

The doctrine · Political portability

The constitutional doctrines that authorize state opposition to federal authoritarian capture were built by conservative jurisprudence for unrelated purposes.

The doctrine does not check which faction is deploying it. Whoever endorses immigration sanctuaries has endorsed firearms sanctuaries on the same ground, and the reverse.

The structure · Three properties and what they produce

Together the three properties produce a deployment surface the federal apparatus cannot consolidate and cannot neutralize through any single line of countermeasures.

The structure · Tier-modularity

The federal lawyer walks into four courtrooms with one brief, and in three of them the brief does nothing.

A countermeasure that narrows anti-commandeering does nothing to dual sovereignty. A broader preemption doctrine does nothing to infrastructure outside federal program territory. A broader reading of the pardon power does nothing to a state’s refusal to lend its officers. A narrower Tenth Amendment does nothing to a county prosecutor’s charging authority. The doctrines have not collapsed into each other in two centuries of federal pressure.

The structure · Domain-modularity · Four states in 2026

Four tiers at once inside a single state, with no tier requiring the others to function.

The federal apparatus has to analyze each state’s position in each domain as a separate question: fifty states, four operative tiers, every occupied domain and every actor with jurisdiction.

The structure · Domain-modularity · Eight domains

Article I confers federal authority piecemeal, domain by domain.

The structure · Actor-modularity

About 500,000 elected state and local officials, each holding tools across the tiers, are the deployment surface.

A countermeasure aimed at attorneys general leaves more than 2,000 elected county prosecutors untouched.

The structure · Actor-modularity · The governor

The governor is an entire deployment surface in one office.

The structure · The deployment surface

The pessimists measured state opposition one tool at a time. The architecture operates along three axes at once.

The record · 2025 to 2026 · The deployment is happening at scale

The architecture is no longer theoretical. State actors are deploying it, and the federal apparatus has been unable to reverse the results.

“The Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois.”

The Supreme Court, Trump v. Illinois, reading “regular forces” in 10 U.S.C. § 12406 to mean the United States military. Letitia James, Keith Ellison, Dana Nessel, Phil Weiser and Kris Mayes led or joined the parallel multistate litigation.

Ten objections · 1 of 2

Each objection at full strength, and the answer the paper gives to it.

Ten objections · 2 of 2

Two practical objections and three judicial ones.

Objection · “This is the Confederate position in modern dress.”

South Carolina declared the tariffs “null, void, and no law.” Tier Four makes no claim of that kind, and the two postures differ on four structural points.

Anyone who treats the two as one posture conflates a doctrine the modern Court has built across three decades of decisions with a constitutional theory that has had no doctrinal life since 1865.

Objection · “The Supremacy Clause is a categorical shield.”

The Court’s own reading of the clause is narrow and fact-bound, governed by the necessary-and-proper inquiry. A unanimous Court said so in June 2025.

The state files charges for conduct that fails both prongs. The federal defense operates inside the test, and the clause extends no protection beyond it.

Objection · “Trump v. United States immunizes the whole federal apparatus.”

Objection · “The federal government will retaliate, and no state will risk it.”

The objection names a real institutional dynamic and produces no doctrinal limit. Every channel of retaliation meets a rule the Court has already written.

The Castro case shows the countermeasures in practice: a governor who sat on an extradition warrant for 90 days, and a federal false-statements indictment filed before the state trial could begin. The state case is proceeding anyway.

The limits

The architecture has limits worth naming, and both of them are about the same thing.

Tier-modularity, domain-modularity and actor-modularity describe constitutional capacity. They do not produce political will.

What we learned

What reads as legal impossibility is usually political choice.

Oregon held the jurisdiction in 2020 and charged no one; Pennsylvania held it in 1839 and convicted. States prosecuted federal agents 57 times in the 1920s. An en banc court voted 6 to 5 in 2001 to let the Horiuchi case proceed, and a prosecutor dropped it three months later. A judge dismissed the Ghaisar indictment in 2021, and an attorney general withdrew the appeal in 2022. Hennepin County charged two officers in 2026. Every failure in that list was a decision by an elected official who had the legal authority to act and chose not to.

We have been leaving the tools on the table. Until that inaction starts costing them elections, they will largely remain unchanged.

The ask

The question for your state is which tier it is sitting on, and what it would take to move it up one.

Ask questions that require specific answers. Staff sort identical messages into a single tally, so form letters get counted once; use your own words, about your own life.

Questions

Oppositional Federalism: A Taxonomy of State Constitutional Postures Under Authoritarian Capture · ssrn.com/abstract=6416178