A historical look at how states—from abolitionist days to modern sanctuary cities—use non-cooperation to shape the balance of power in America.

Conservative Supreme Court decisions on federalism have unintentionally provided Democratic-led states with the legal framework now being used to resist federal authority.

In his recent analysis, Chris Armitage introduces Americans to a concept that could fundamentally reshape our federal system: “soft secession.” Unlike the violent rupture of 1861, this represents states quietly walking away from each other through strategic non-cooperation rather than direct confrontation.

The foundation for this resistance was built by the very conservative justices who never imagined blue states would use it.

The Legal Foundation: A Conservative Gift to Blue States

The anti-commandeering doctrine, crystallized in two landmark Supreme Court cases, provides the constitutional roadmap for state resistance:

• Printz v. United States (1997): Justice Antonin Scalia ruled that the federal government cannot “issue directives requiring the States to address particular problems, nor command the States’ officers… to administer or enforce a federal regulatory program.” This struck down provisions requiring local sheriffs to perform federal background checks.
• Murphy v. NCAA (2018): Justice Samuel Alito expanded this principle, ruling that federal law cannot put state legislatures under the “direct control of Congress,” whether through commands or prohibitions.

These decisions established that states cannot be forced to actively participate in federal enforcement, even when federal law remains supreme. The federal government can pass laws, but without willing state cooperation, much of its agenda becomes practically unenforceable.

Yale’s Framework: “Uncooperative Federalism”

Yale Law Professor Heather Gerken coined the term “uncooperative federalism” to describe this strategy. Rather than viewing states as either sovereign or servant, Gerken argues that states derive significant power from their role as servants in the federal system.

Her framework identifies three key mechanisms:

• Regulatory resistance: Using federally-conferred power to resist federal policy
• Information control: Withholding cooperation in data sharing and enforcement
• Resource denial: Refusing to provide state resources for federal programs

As Gerken notes, in an integrated federal system, “sovereignty is rarely, if ever, to be had,” making the “power of the servant” more realistic and effective.

Historical Proof: From Personal Liberty Laws to Sanctuary Cities

Northern Personal Liberty Laws (1780-1859): The Original Sanctuary Movement

The most powerful precedent involved Northern states systematically undermining the Fugitive Slave Acts through “personal liberty laws” legislation that sounds remarkably similar to today’s sanctuary city ordinances.

Massachusetts’ 1855 Personal Liberty Act declared that “The writ of habeas corpus may be issued by the supreme judicial court… and it may be issued by any justice of the peace.” Vermont’s 1850 Habeas Corpus Law required state judicial and law enforcement officials to assist captured fugitive slaves rather than federal agents. Michigan’s 1855 law prohibited “county jails from being used to detain recaptured slaves” and directed “county prosecutors to defend recaptured slaves.”

The language was deliberate and defiant. These laws guaranteed jury trials for alleged fugitive slaves, forbade state officials from cooperating in captures, and penalized state officers for “voluntarily engaging in slavecatching.” Wisconsin’s 1857 law went further, forbidding state judges from issuing certificates of removal under federal law.

The result? Despite federal law requiring the return of fugitive slaves, only 330 slaves were returned over nearly 80 years due to state non-cooperation. The federal Fugitive Slave Act became what Ralph Waldo Emerson called “a dead letter” in Massachusetts and other resistant states.

Chicago: From Harold Washington to J.B. Pritzker

The direct line from 19th-century personal liberty laws to modern sanctuary cities runs through Chicago. Mayor Harold Washington’s 1985 Executive Order establishing Chicago as a sanctuary city used language that deliberately echoed earlier resistance: the order “prohibited police and city employees from questioning residents about their immigration status and terminated cooperation with federal immigration authorities.”

Washington’s executive order was written to “assure that all residents of the City of Chicago, regardless of nationality or citizenship, shall have fair and equal access to municipal benefits, opportunities and service” language that directly parallels the personal liberty laws’ guarantee that state courts would protect all persons within state boundaries.

By 2006, Chicago’s sanctuary protections became the Welcoming City ordinance, which “prohibited the use of city funds and resources to assist federal immigration enforcement—the defining characteristic of a sanctuary city.” The ordinance banned officers from “arresting anyone just because they were suspected of being undocumented” and directed police to ignore federal requests to detain people beyond their release date.

Governor Pritzker’s Modern Resistance

Illinois Governor J.B. Pritzker has scaled this resistance to the state level through the Illinois TRUST Act, which “generally prohibits local law enforcement in Illinois from participating in immigration enforcement.” The Act’s language mirrors 19th-century personal liberty laws: it limits officials from “complying with immigration detainer requests” and forbids “stopping, arresting, searching or detaining an individual solely based on immigration status.”

When testifying before Congress in 2025, Pritzker’s language was defiant: “We will not participate in abuses of power. We will not violate court orders. We will not ignore the Constitution.” This echoes Wisconsin’s 1857 declaration that the state would not assist in enforcing federal fugitive slave laws that violated state constitutional protections.

Pritzker’s recent signing of legislation extending student financial aid to undocumented immigrants represents the modern equivalent of personal liberty laws that provided legal protections and state resources to those threatened by federal enforcement.

Modern Examples Beyond Immigration

• Cannabis: 40 states have legalized medical cannabis and 24 have legalized recreational use, despite federal prohibition. The federal government has essentially abandoned enforcement.
• REAL ID: When 25 states refused to implement requirements starting in 2007, they delayed enforcement by nearly two decades from 2008 to 2025.

The Infrastructure of Resistance

Legal Warfare

During Trump’s first term, Democratic attorneys general filed over 130 multistate lawsuits against the administration with an 83% success rate. They maintain “brief banks” with pre-drafted lawsuits ready for immediate filing, the modern equivalent of the coordinated legal resistance Northern states mounted against fugitive slave laws.

Economic Leverage

• Massachusetts sends $4,846 more per capita to the federal government than it receives
• New York contributed $142.6 billion more than it received over five years
• California has accumulated $76 billion in reserves
• Illinois sends more to Washington than it receives back, giving Pritzker economic leverage in federal disputes

Red States Wrote the Playbook

Texas demonstrates that soft secession works regardless of party. Operation Lone Star achieved an 87% reduction in border crossings through state action alone, independent of federal immigration policy. This $11 billion operation employs the Texas National Guard and state troopers, effectively governing in areas traditionally considered federal domain.

Meanwhile, 46% of U.S. counties have declared themselves Second Amendment sanctuaries, with eleven states officially designating themselves as such. These declarations use language similar to personal liberty laws, stating that no governmental resources will be used to enforce federal laws that “unconstitutionally” infringe upon rights.

The Infrastructure Already Exists

Blue states aren’t building resistance from scratch—they’re scaling existing systems:

• Voting Rights: Eight states have enacted State Voting Rights Acts exceeding federal protections
• Election Security: Colorado has created the “gold standard” through risk-limiting audits with paper ballot requirements
• Automatic Registration: Twenty-two states have implemented automatic voter registration

The Washington State Test Case

The Adams County Sheriff case in Washington State illustrates how far this resistance extends. The state Attorney General is seeking an injunction against the sheriff for cooperating with federal immigration enforcement, arguing he’s violating the Keep Washington Working Act. This creates a direct conflict where local officials must choose between federal directives and state law—the same dilemma faced by Northern officials during the fugitive slave era.

What This Means for America

Soft secession represents a fundamental realignment toward a confederation of semi-autonomous regions rather than a unified nation-state. States are building parallel systems for abortion rights, labor protection, civil rights, immigration policy, and election security.

The federal government increasingly resembles what Armitage calls a “hollow” structure that states have a “moral imperative to ignore” when democracy fails or federal funds are withheld as political punishment.

The Ultimate Irony

Conservative legal theory has provided the tools for progressive state resistance. The anti-commandeering doctrine, designed to protect conservative state sovereignty, now empowers the very blue state opposition its creators likely never intended to enable.

This represents one of the most significant constitutional ironies in recent American history: Justice Scalia’s jurisprudence becoming the foundation for Democratic resistance.

The Historical Echo

The progression from personal liberty laws to sanctuary cities to comprehensive state resistance reveals a consistent pattern: when federal law conflicts with state values, states find ways to quietly nullify federal authority through non-cooperation. The language may evolve, but the strategy remains the same.

Just as Northern states used personal liberty laws to make the Fugitive Slave Act “a dead letter,” modern blue states are using sanctuary laws, economic leverage, and coordinated legal resistance to make much of the federal immigration enforcement apparatus similarly ineffective.

The Path Forward

Rather than violent rupture, soft secession offers states a path to quietly walk away from each other. Blue states build progressive policy infrastructure while red states pursue different directions, all within the constitutional framework conservative justices provided.

The question isn’t whether soft secession will continue—the legal precedents are established, the economic leverage exists, and the political will is evident. The question is whether this represents a temporary political strategy or a permanent restructuring of American federalism.

As states increasingly choose their own paths on fundamental issues, we may be witnessing the emergence of something unprecedented: a United States that’s united in name only, held together by a federal structure that states systematically choose to ignore.

The infrastructure for resistance is already built. The legal precedents are established. The only question remaining is how far states are willing to go in walking away from a federal system that no longer serves their values or their people.

The conservative justices who created this framework probably never imagined it would be used this way. That’s the beauty and the danger of constitutional law: once you establish a principle, you can’t control who uses it.