Federalism

What recourse do states have when federal employees engage in on-the-job conduct that violates state criminal laws? This Report explores that question. For more than two centuries, state and local prosecutors have pursued criminal charges against federal actors in a wide variety of contexts, including at moments of significant tension between states and the federal government. Legally, the doctrine of Supremacy Clause immunity gives federal actors some protection against such prosecutions, but it does not wholly insulate them from state criminal liability. While the doctrine’s contours are somewhat amorphous, the core inquiry is whether the federal employee reasonably acted within the bounds of their lawful federal duties. If so, the state criminal charges likely cannot move forward. But if the federal actor’s conduct was unreasonable, beyond the scope of their official duties, or contrary to federal law, the state prosecution can often proceed.

After recounting past examples of state prosecutions of federal officials, from the early nineteenth century to recent years, the Report analyzes how the Supreme Court and lower federal courts have articulated and applied the test for Supremacy Clause immunity. The Report also discusses the jurisdictional rules that often enable federal officials to shift state prosecutions into federal court. The Report concludes by identifying several categories of state criminal laws that may be especially relevant to the conduct of federal officials.

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Victims of unconstitutional federal actions often have difficulty recovering money damages for their injuries. This Report discusses a potential remedial pathway that is beginning to garner interest among policymakers and litigants: state-created causes of action authorizing people to sue federal officials for damages. This is an idea that Professor Akhil Amar introduced to the academic literature decades ago, dubbing it “converse 1983.” Under a landmark federal statute, 42 U.S.C. § 1983, individuals can seek damages from state or local officials who violate constitutional rights. State converse 1983 laws, in contrast, allow individuals to reach wrongdoing by federal officials.

This Report identifies several states that already have laws that appear to allow for converse 1983 lawsuits. It discusses how such lawsuits might unfold and assesses the arguments that federal actors would likely offer in opposition. These include arguments that federal statutory law preempts converse 1983 actions, that the U.S. Constitution’s Supremacy Clause forecloses converse 1983 actions, and that, at a minimum, federal officials should receive qualified immunity. Although it is difficult to predict exactly how federal courts might resolve such arguments, the Report concludes that states can offer strong responses to each likely objection. Converse 1983 actions may therefore offer a viable way to close existing remedial gaps and to deliver a measure of justice and accountability for victims of unconstitutional federal actions.

On October 22, 2025, SDRI’s faculty co-directors submitted an amicus brief with other legal scholars in Quiñonez v. United States, a Ninth Circuit case in which the plaintiffs seek to pursue converse-1983 claims through California’s Tom Bane Civil Rights Act.

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As the federal government ramps up immigration enforcement under President Trump’s second administration, federal agents sometimes conduct operations while wearing masks or other face coverings that disguise their identities. A growing number of states and localities have responded by considering and beginning to adopt their own laws to restrict masking by law enforcement. These efforts have prompted questions and commentary regarding states’ power to regulate federal actors. In particular, can state and local mask bans bind federal law enforcement without running afoul of the U.S. Constitution’s Supremacy Clause?

This Report describes the recently enacted mask ban in California and the proposed laws in other states. It then analyzes the constitutionality of these state efforts. Under existing precedent, mask bans are neither clearly prohibited nor clearly permissible. While opponents can plausibly analogize mask bans to other state and local policies that courts have held cannot apply to federal actors, proponents can reasonably distinguish those precedents and analogize to cases upholding application of state and local policies to federal actors. This Report also provides an overview of other options states may have to address masking by federal law enforcement.

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Federal laws and institutions have long actively policed public corruption. In recent months, however, the Department of Justice and other federal agencies have gutted the units primarily responsible for investigating and enforcing federal anticorruption laws. At the same time, the public is increasingly questioning the legality and ethics of various federal-level actions. This Report explores whether and how states can potentially step in to fill the void.

All fifty states have laws criminalizing various forms of corruption, such as bribing public officials, using information obtained in public office for personal gain, or accepting compensation for past official actions. While typically used to address misconduct by state or local officials, many of these laws could be adapted to deter or punish corrupt conduct at the federal level. This Report details the types of state anticorruption laws potentially applicable to federal corruption (either currently or if amended), as well as potential barriers to prosecutions under these laws. It also briefly surveys state-level mechanisms beyond criminal law that might be used to address at least some federal corruption, including disclosure rules, unfair competition laws, and state ethics commission investigations.

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As part of President Trump’s efforts to expand federal control over the country’s historically state-run election infrastructure, the U.S. Department of Justice has demanded copies of states’ complete voter registration lists, including voters’ highly sensitive data like birthdates, partial Social Security numbers, and driver’s license numbers. The Justice Department claims it needs this information to assess whether states are complying with federal requirements to maintain accurate voter rolls, but states have mostly resisted these demands, citing state and federal privacy laws that protect Americans’ sensitive personal data. Faced with widespread pushback, the Justice Department has filed lawsuits against 21 states (so far) and Washington, D.C., seeking orders compelling these jurisdictions to turn over their data.

This Report examines the legal issues at the heart of these standoffs. It discusses how states administer voter registration under federal law, explores the privacy protections states have enacted to safeguard sensitive voter data, and analyzes the key statutes the Justice Department is invoking—the National Voter Registration Act, the Help America Vote Act, and the Civil Rights Act of 1960. While existing case law suggests that these federal laws can be harmonized with state privacy protections to allow states to withhold voters’ most sensitive information, how courts will resolve the federal government’s requests remains to be seen. The Report also discusses the possibility of citizen-led lawsuits in states where officials may be more willing to comply with federal demands, assessing both the promise and limitations of this strategy for protecting voter privacy.

For more up-to-date information on the DOJ’s lawsuits seeking states’ sensitive voter data, see our tracker here.

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