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Document Type

Article

Publication Date

Spring 2015

Publication Citation

90 Indiana Law Journal 613 (2015)

Abstract

In the past decade, states across the country have enacted a flood of legislation to resist perceived federal encroachments on their sovereignty. These opposition statutes assume a variety of forms: some, for instance, merely prohibit state officers from assisting in the enforcement of federal law, while others purport to nullify particular federal regulations. In the fields of controlled substances, immigration, and healthcare, among others, state acts of protest have stimulated the national debate and influenced legal obligations in important ways.

This Article provides the first comprehensive overview of this nascent state sovereignty movement. It categorizes opposition enactments according to the legal and political purposes they are designed to advance, analyzes the likelihood of preemption, and explores the functions they may serve despite the existence of conflicting federal law. It then proceeds to identify the structural features these laws share as a class, before concluding with an assessment of their normative implications.

The increasing polarization of national politics will only amplify the importance of state resistance efforts. The paucity of scholarship addressing this issue therefore represents a major gap in academic efforts to grasp the changing dynamics of intersovereign conflict in the United States. This Article begins to remedy that blind spot. The concepts it articulates represent valuable tools not only for exploring state legislative resistance to federal policy, but also for addressing the range of issues arising from federal discord and geographical polarization more broadly.

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