The Legal Blueprint for Radical Federalism
How States Can Resist Federal Preemption and Secure Their Autonomy
Radical Federalism is not just a political philosophy—it is a legal strategy.
For decades, the federal government has expanded its power, overriding state and local decisions through preemption, federal funding conditions, and judicial rulings. Now, these mechanisms through which liberals assumed was enacted the leftward arc of history have been captured, along with the rest of the machinery of federal government.
But states are not powerless.
There are legal tools that states and cities can use to resist federal overreach, neutralize preemption laws, and secure their right to self-governance.
This is a blueprint for how Radical Federalism can be legally implemented and defended. It is also a study in how the language and tacrics the opposition has set aside may be repurposed.
Remember: A republic does not collapse in one moment. It is eroded, law by law, precedent by precedent, as power is centralized and state sovereignty is stripped away. This is how the American system has decayed—not through a dramatic coup that came disconnected from what preceded it, but through the co-opting of decades of legal maneuvering that has reduced the states to mere administrative units of Washington, D.C.
The primary weapon in this campaign has been federal preemption—the legal doctrine that allows Washington to override state law. It has been used to crush state authority in labor protections, environmental regulations, healthcare policy, and financial governance. And with every ruling that expands preemption, the federal government consolidates more power at the expense of local self-rule.
But this trend is not irreversible. The Constitution provides states with legal defenses—tools that, if used strategically, can halt and even roll back Washington’s overreach. The question is no longer whether states can resist federal preemption. The question is whether they will.
I. Understanding Federal Preemption and How to Fight It
1. What is Federal Preemption?
Federal preemption operates under a simple principle: When state and federal laws conflict, federal law wins. This power is rooted in the Supremacy Clause (Article VI, Clause 2) of the U.S. Constitution, which states that federal laws override any conflicting state statutes.
But what started as a mechanism for resolving legal disputes has become a blunt instrument for dismantling state authority. Today, preemption is used not just to ensure uniform national policies, but to erase state laws that contradict the interests of federal agencies, corporate lobbyists, or political factions in Washington.
The Clean Air Act : Preempts state-level emissions standards unless the EPA grants an exemption. This has allowed federal regulators to block stronger state environmental protections.
The Employee Retirement Income Security Act (ERISA) : Significantly restricts states’ ability to regulate employer-sponsored health plans, thereby limiting the extent to which states can expand healthcare protections for workers.
The Federal Arbitration Act : Preempts state laws that protect consumers from forced arbitration, allowing corporations to evade accountability in state courts.
█ Why This Matters Now
If states do not push back, they will become nothing more than administrative districts, subject to the whims of whatever faction controls Washington at any given moment. Preemption is the legal mechanism of centralization. The question is whether states will submit—or fight.
Key Points :
Preemption occurs when federal law overrides state or local laws, making them unenforceable.
The federal government uses preemption to strike down state laws on environmental regulations, labor protections, health care policies, and more.
The Supreme Court has steadily expanded the federal preemption doctrine, eroding state sovereignty.
2. Two Types of Preemption to Watch For
There are two primary ways federal preemption erodes state sovereignty: express preemption and implied preemption.
Express Preemption : This occurs when Congress explicitly states that federal law overrides state law. It is direct and absolute—if Congress says a state cannot regulate a particular issue, that’s the end of it.
Example: The Federal Aviation Administration (FAA) : Prevents states from enacting their own airline safety regulations, even if they are stricter than federal rules.
Implied Preemption : This is far more insidious. Here, courts decide that even if Congress did not explicitly preempt state law, it must have intended to do so. This happens in two ways:
Conflict Preemption : If state and federal laws contradict each other, courts strike down the state law.
Field Preemption : If courts decide Congress has “occupied the field” of regulation, states are locked out entirely—even if federal law is silent on the issue.
A textbook case of field preemption is Arizona v. United States (2012), where the Supreme Court ruled that states could not enforce their own immigration policies because federal law was deemed to occupy the entire field. This ruling effectively nullified any state attempt to regulate immigration enforcement, even when federal authorities refused to act.
█ Why This Matters Now
Express preemption is Washington writing its authority into law. Implied preemption is the courts fabricating federal authority where none exists. Both must be fought—every time, without hesitation.
Key Points :
Express Preemption : Occurs when Congress explicitly states that federal law overrides state law.
Implied Preemption : Happens when federal law conflicts with or “occupies the field” in a way that courts decide was Congress’s intent.
3. How States Can Challenge Federal Preemption
The Supreme Court has steadily expanded federal preemption doctrine, but it has also provided states with legal tools to resist. These are the weapons that must be used in every legal battle over state sovereignty.
The Tenth Amendment : The Constitution reserves all powers not explicitly granted to the federal government for the states. This principle has been weakened, but it remains a core argument in every preemption challenge. If Congress cannot clearly justify its authority, the power belongs to the states.
The Anti-Commandeering Doctrine : The Supreme Court has ruled that the federal government cannot force states to enforce federal laws.
Printz v. United States (1997) : Struck down a federal law that required state police to enforce federal gun control measures. The Court ruled that Washington cannot conscript state officials into federal service.
Murphy v. NCAA (2018) : Affirmed that states cannot be prohibited from legalizing sports betting, setting a critical precedent limiting federal control over state legislative power.
Dual Sovereignty Doctrine : States are not mere subsidiaries of the federal government; they retain their own spheres of authority. Courts have upheld this principle in areas like taxation, education, and environmental policy. The more states assert this, the harder it becomes for Washington to erase their authority.
The End of Chevron Deference: A Turning Point for State Resistance
Until recently, federal agencies had near-total control over how ambiguous laws were interpreted. Chevron deference, a doctrine established in 1984, required courts to defer to federal agencies’ interpretations of laws whenever statutes were unclear. This gave agencies like the EPA, FDA, and OSHA enormous power to regulate without strong judicial oversight.
But in Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned Chevron deference, stripping agencies of their unchecked interpretive authority. This ruling reshapes the legal battlefield, shifting power away from Washington’s bureaucracy and back to the courts—where states can now directly challenge federal regulatory overreach without deference to agency interpretations.
This means states now have a stronger legal foundation to resist federal regulations, particularly in environmental policy, labor protections, and financial regulations, where agencies have long exceeded their statutory authority.
The battle over preemption just shifted in favor of the states. The only question is whether they will use this new legal opening to aggressively challenge Washington’s overreach.
█ Why This Matters Now
Every time states fail to challenge preemption, they strengthen Washington’s control. Every lawsuit, every legal battle, every refusal to comply is a fight for survival. There is no middle ground.
Key Points :
Invoke the Tenth Amendment : The Constitution explicitly reserves powers to the states that are not granted to the federal government.
Use the Anti-Commandeering Doctrine : The Supreme Court has ruled that the federal government cannot force states to enforce federal laws.
Argue for Dual Sovereignty : Courts have upheld that states and the federal government can operate in parallel legal spheres, especially on issues like taxation, education, and environmental policy.
If a state structures its laws correctly, it can resist preemption and protect its autonomy.
II. Legal Mechanisms to Strengthen State Sovereignty
1. Constitutional Amendments to Shield State Laws from Federal Overreach
Federal preemption is not inevitable. States that structure their legal frameworks strategically can build legal firewalls against Washington’s control. This requires more than passing laws—it demands constitutional protections, financial independence, and alliances that make federal overreach more difficult to enforce.
Key Points :
States must enshrine key rights and protections in their constitutions, making them harder to override.
State constitutions can be structured to require supermajorities for repealing fundamental rights, ensuring long-term protection.
Key Areas Where State Amendments Can Protect Against Federal Interference
State constitutions are the strongest legal tools available to resist preemption. Unlike ordinary statutes, which can be overturned by courts citing federal supremacy, constitutional provisions are far more difficult to dismantle.
Enshrine Key Protections in the State Constitution : Worker protections, environmental regulations, and civil liberties should be embedded in the state’s foundational legal document, making them harder for federal courts to strike down.
Require Supermajorities for Repeal : A state can mandate that fundamental rights—such as reproductive freedom, gun rights, or labor protections—can only be repealed with a two-thirds majority or a statewide referendum, ensuring they are not easily undone by shifting political winds.
Example: California and Reproductive Rights
California responded to federal attacks on abortion rights by amending its constitution to protect access. This is the model for every issue where federal preemption threatens state authority.
█ Why This Matters Now
The federal government cannot preempt what it cannot erase. Constitutional protections force Washington to either accept state authority—or attempt the impossible task of repealing the amendment itself.
Key Examples :
Worker Protections : Minimum wage, labor unions, and workplace safety regulations.
Reproductive Rights : Codify access to abortion and contraception.
Environmental Protections : Prevent rollbacks on state-level climate laws.
2. Expanding Home Rule to Strengthen Local Governments
The federal government doesn’t just target states—it often works to override local governments that try to defy federal mandates. States that empower their cities through home rule charters make preemption far more difficult.
Home Rule Gives Cities Independent Governing Authority : Instead of waiting for state approval, cities can enact policies on housing, policing, and labor without interference.
If Home Rule is Enshrined in the State Constitution, Preemption Becomes More Difficult : A city with constitutional home rule protections can argue that federal interference violates both state and local sovereignty.
Example: Sanctuary Cities and Immigration Enforcement
Cities with strong home rule charters have successfully resisted federal pressure to enforce immigration laws. Courts have repeatedly upheld local discretion in law enforcement, preventing Washington from coercing police departments into acting as federal immigration enforcers.
█ Why This Matters Now
Decentralization is resistance. A state that empowers its cities creates multiple layers of legal defense against federal mandates.
Key Points :
Many states allow home rule charters, which give cities broad governing powers.
If states empower their cities with home rule protections, federal preemption becomes more difficult.
The City as a Fortress : How Home Rule Can Be Used to Resist Federal Preemption
States are not the only battleground in the fight against federal preemption. Cities, when properly armed with legal autonomy, can become fortresses of resistance. A well-structured home rule charter does more than allow a city to govern itself—it creates a legal barrier against Washington’s control.
A city with strong home rule can refuse to enforce federal mandates, build independent financial systems, and establish localized energy grids, making it far harder for federal preemption to take hold. This is not theoretical—it is already happening.
Sanctuary Laws - Municipalities Can Block Federal Immigration Enforcement : Cities with home rule protections have successfully barred local law enforcement from cooperating with federal immigration authorities, effectively nullifying Washington’s ability to enforce its policies without direct federal intervention. The Supreme Court has ruled that the Anti-Commandeering Doctrine prevents Washington from forcing cities to do its bidding. If they want enforcement, they have to do it themselves.
Public Banks - Localized Finance Outside of Federal Control : Some cities have begun developing municipal banking systems, keeping financial resources out of federally regulated institutions. A city that funds itself cannot be coerced through federal funding threats.
Energy Independence: -Cities Can Cut Washington Out of the Equation : Local governments are increasingly investing in municipal energy grids, public utilities, and stricter emissions standards, allowing them to sidestep federally controlled energy markets and environmental rollbacks. When a city owns its own power, Washington’s ability to impose energy policy collapses.
█ Why This Matters Now
Preemption works by treating local governments as mere extensions of federal authority. A city with financial independence, energy autonomy, and legal protection under home rule is not just a city—it is a stronghold. The more cities that fortify themselves in this way, the harder it becomes for Washington to enforce its will. Decentralization is not just a philosophy. It is a weapon. Use it.
Key Points :
Local Sanctuary Laws : Preventing law enforcement from enforcing federal immigration mandates.
Municipal Banking : Allowing cities to operate independent financial systems free from federal oversight.
Local Energy Independence : Cities can pass regulations that favor renewable energy and reduce reliance on federal grids.
3. State-Led Litigation Against Federal Overreach
Insofar as federal interference still waits on court decisions (a hypothesis which grows weaker by the day), litigation remains one of the sharpest weapons available to the states. Every single instance of federal overreach must be met with an immediate legal challenge. If Washington wants to override state law, make them prove it in court—again, and again, and again.
This is not about winning every case. It is about grinding down federal authority through sheer force of legal attrition—creating a body of precedent that future administrations must navigate, setting judicial tripwires that limit the scope of federal preemption, and forcing courts to define the precise boundaries of state sovereignty.
The Strategy: Challenge Preemption on Constitutional Grounds : Preemption works when states surrender the argument before it is made. Stop surrendering. Every lawsuit should hammer the point that Washington’s authority is constrained by enumerated powers, and that the Tenth Amendment reserves all others for the states.
Force the Courts to Clarify Intent : When Congress is vague about whether it meant to preempt state law, that vagueness should be turned against them. The more states sue, the more courts are forced to clarify the limits of preemption rather than expand them.
Use Every Available Legal Precedent : The Supreme Court has already ruled in favor of state autonomy in key cases—but only when states have been aggressive enough to force the issue.
Printz v. United States (1997) : Affirmed that the federal government cannot force state officials to enforce federal gun laws, solidifying the Anti-Commandeering Doctrine as a shield against federal coercion.
Murphy v. NCAA (2018) : Struck down a federal law that prohibited states from legalizing sports betting, ruling that Congress cannot dictate state policy choices. This is a direct limit on federal preemption power.
West Virginia v. EPA (2022) : Significantly curtailed the ability of federal agencies to impose regulatory mandates on states without explicit congressional authorization.
█ Why This Matters Now
Litigation is not just about winning cases—it is about changing the terrain of legal warfare. Every lawsuit states file against federal preemption complicates Washington’s ability to impose its will. This is the long game: make federal overreach expensive, time-consuming, and politically costly. Force them to fight for every inch of ground.
Key Points :
States must aggressively sue the federal government every time a preemption law is used to erode state autonomy.
The goal is to create legal precedents that limit the scope of federal preemption.
The Legal Arsenal: Key Supreme Court Precedents That Reinforce State Sovereignty
Federal preemption is not an unstoppable force. The Supreme Court, despite its long history of consolidating power in Washington, has at times ruled in favor of state autonomy. These rulings form the backbone of any serious resistance strategy—not as theoretical victories, but as active legal weapons that must be wielded against federal overreach.
Printz v. United States (1997): The Federal Government Cannot Commandeer State Officials
In a direct rebuke to federal overreach, the Court ruled that Washington cannot force state law enforcement to carry out federal mandates. The case challenged a provision of the Brady Handgun Violence Prevention Act that required state and local officers to conduct background checks on firearm buyers. The Court struck it down, affirming that the Tenth Amendment prohibits the federal government from conscripting state officials into its regulatory schemes. The lesson? If a federal mandate relies on state enforcement, states can refuse to comply.Murphy v. NCAA (2018): Washington Cannot Dictate State Policy Choices
The Professional and Amateur Sports Protection Act (PASPA) attempted to block states from legalizing sports betting. The Supreme Court struck it down, ruling that Congress cannot simply prohibit states from making their own policy decisions. The ruling solidified the Anti-Commandeering Doctrine, making it clear that Washington cannot regulate states by restricting what laws they may or may not pass. The lesson? If Washington tells a state it "may not" legislate on an issue, the state should sue immediately.West Virginia v. EPA (2022): Federal Agencies Cannot Rewrite State Policy
The EPA sought to impose sweeping climate regulations on states without clear congressional approval. The Supreme Court ruled that federal agencies do not have unlimited authority to impose regulatory mandates. This decision sent a broader signal: Washington cannot use executive branch agencies as an end-run around state governments. The lesson? Whenever a federal agency tries to impose top-down regulations, states must challenge the order in court.Loper Bright Enterprises v. Raimondo (2024): Federal Agencies No Longer Have Final Authority Over Laws
For 40 years, Chevron deference allowed federal agencies to dictate the interpretation of vague or ambiguous laws—shutting states out of the legal process and giving Washington near-total regulatory control. With it overturned, states can now challenge federal regulatory overreach in court without automatic deference to agency interpretations; have stronger grounds to strike down federal regulations that attempt to override state policies; can weaponize judicial review against Washington’s rule-by-regulation approach.
█ Why This Matters Now
The first three cases are not relics of the past—they are weapons states must continue using against Washington’s overreach.
But Loper Bright is different—its ramifications are still unfolding. This ruling presents states with a once-in-a-generation opportunity to define the legal landscape. For the first time in decades, federal agencies no longer hold the final authority over regulatory interpretations.
Every state that refuses to comply with a federal mandate, challenges federal overreach in court, and forces Washington to prove its authority strengthens this legal foundation.
The fight is not over. It is only beginning.
Key Rulings :
Printz v. United States (1997) : Ruled that the federal government cannot force state officials to enforce federal gun laws.
Murphy v. NCAA (2018) : Affirmed that states have the right to legalize sports betting, limiting federal preemption powers.
West Virginia v. EPA (2022) : Limited the federal government’s ability to regulate state environmental policies.
Loper Bright Enterprises v. Raimondo (2024): Federal Agencies No Longer Have Final Authority Over Laws
What This Means for States Today
If challenged correctly, states can block federal enforcement of unpopular laws within their borders.
III. The Time to Act is Now
Radical Federalism is not just a theory—it is a strategy that must be implemented immediately.
The Supreme Court will keep stripping power from the states.
Washington will keep centralizing control.
Authoritarianism is here now and we’ll be lucky if the next authoritarian government is only one election away.
There is no more time to wait.
States and cities must take action now—before it is too late. Legal resistance is the first step. Every lawsuit, every constitutional amendment, every governance reform weakens Washington’s grip.
But lawfare alone won’t be enough. As long as Washington controls the money, it controls the states.
The companion article The Economic Blueprint for Radical Federalism lays out how to break Washington’s financial stranglehold—so that no state can be blackmailed into compliance.
The time for waiting is over. The time to act is now.
I agree fully with this—radical federalism may provoke knee-jerk reactions because of historical connotations regarding the civil war and modern rightwing libertarianism, but getting hamstrung by nomenclature is half of what has gotten the left so far into this mess. We’ve seen state’s rights action for a while, just under different names—states rushing to pass amendments protecting choice following Dobbs, asylum cities and local governance not complying with ICE orders, even states suing Trump over the funding freeze.
People talk about the three branches of the federal government like they’re the be-all and end all, and I think that contributes to a lot of the doomer sentiment we’re seeing among progressives. It’s, as you’ve stated well in this piece, not. State and local governance is far more accessible to the average person, and more equipped to make immediate impact. It was the whole point of the dual-power structure in the first place.
This is so helpful.
Thank you for making this post.
- To what extent do you think the states have the competencies and preparedness now?
- Where do the legal resources supporting the states come from? What is the risk that the DOJ can threaten or otherwise negatively influence those legal resources, similar to what we just saw in NY with Sassoon?