Abstract

One of the most pressing issues in constitutional law is how states may—and should—resist federal preempting laws and policies with which they disagree. It’s a problem faced by red and blue states alike in an age of extreme political polarization. Despite having legitimate reasons to resist the federal government on matters that affect local citizens and interests, states seem to have few options. Conventional wisdom is that they engage in either direct resistance through litigation that challenges the constitutionality of preempting laws, or evasion by quietly enacting arguably non-compliant laws hoping to avoid enforcement. Both strategies adopt a belligerent stance toward the federal government, one that is out of step with a growing literature that praises “cooperative federalism” as a way to promote democratic accountability and improve national policies.

This Article identifies and analyzes an overlooked third option. A growing number of states are engaging in persuasive resistance by enacting a state bill that seeks to recruit other states and even Congress to a dissenting policy view. The bill’s terms conflict with federal law, but they only go into force when other states enact the same bill, and Congress amends the preempting federal law to eliminate the conflict. These bills operate to signal the state’s resistance, recruit other states to their cause, and present a unified position to Congress. Unlike direct resistance and evasion, they are neither legally aggressive nor passive-aggressive. Instead, they are tools for states to cooperate with each other and Congress to solve politically complicated national problems.

States’ persuasive resistance strategies are gaining traction, but they are not a panacea for all the problems arising from federal preemption. This Article uses case studies to compare the relative costs and benefits of states’ preemption resistance. For instance, states’ persuasive resistance that seeks to change federally-mandated daylight saving time illustrates the strategy’s political promise. In other cases, though, state actors are more likely to be drawn to strategies that seek to restrict centralized authority or to reap unique local benefits. Whether persuasive resistance is the best strategy to resist preemption will often turn on the actor and its objectives. But in many cases, it will be an attractive alternative to more aggressive—or passive-aggressive—options.

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