Preemption and Commandeering Without Congress

Abstract

In the “age of polarization” this Symposium addresses, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples.

Keywords: federalism, preemption, commandeering, anticommandeering, coercion, concealed carry reciprocity, sanctuary city, sanctuary jurisdiction, California Values Act, partisan polarization, immigration, healthcare, climate change