New York State of the State 2026 Analysis No. 1

Written by The Federalist

Governor Kathy Hochul’s 2026 proposal to allow New Yorkers to sue federal officers in state court for alleged violations of U.S. constitutional rights is presented as a civil-rights accountability measure. However, as analyzed in this article, the proposal is fundamentally incompatible with established constitutional law. States lack authority to create remedies for federal constitutional violations, and any attempt to do so conflicts with the Supremacy Clause, federal sovereign immunity, and Supreme Court precedent governing suits against federal officers.

The article explains that remedies against federal officials exist only where authorized by Congress or recognized by the U.S. Supreme Court, and that recent decisions sharply limit the expansion of such remedies. As a result, the proposed legislation would almost certainly be removed to federal court and dismissed, rendering it largely symbolic. While concerns about federal accountability are legitimate, meaningful reform in this area must occur through federal legislation rather than unilateral state action.

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Establishing a Right To Sue Federal Officers for Constitutional Violations

State of the State - 2026

Governor Kathy Hochul

January 13, 2026

“With unprecedented escalations in aggressive federal immigration enforcement, communities across the United States are reeling from heavy-handed tactics that have been alleged to trample on constitutional rights.

To protect communities across the state and ensure accountability when constitutional rights are violated, Governor Hochul will advance legislation that gives New Yorkers a clear path to seek justice when their rights are violated.

The proposal authorizes individuals to bring state-level civil actions against federal officers who violate New Yorkers’ U.S. constitutional rights, consistent with the same legal standards that already exist elsewhere in the law. Notably, state and local officers already are subject to these standards, including qualified immunity that protects law enforcement officers who act within the bounds of clearly established law. This legislation would ensure accountability for federal officers under those standards. By aligning state law with existing federal civil rights frameworks, this proposal reinforces constitutional protections and provides New Yorkers with a meaningful legal recourse when federal authority is unconstitutionally abused in New York.”

Source: governor.ny.gov

Factual Analysis

As written and described, the proposed legislation authorizing New Yorkers to sue federal officers in state court for alleged violations of the U.S. Constitution is very likely unconstitutional and preempted by federal law. The proposal would attempt to create a state-law cause of action for federal constitutional violations, targeting federal officers, seeking damages, and adjudicated in state court. Each of these elements directly conflicts with core principles of constitutional structure, including the Supremacy Clause, federal sovereign immunity, exclusive federal control over remedies for constitutional violations, and the Supreme Court’s sharply limited jurisprudence under Bivens. Even where the policy goal of accountability may be legitimate, New York cannot unilaterally create such a legal framework without running afoul of federal law.

At the heart of the proposal is a fundamental constitutional defect: states do not control remedies for violations of the U.S. Constitution. That authority rests exclusively with the federal government. The Supreme Court has repeatedly held that the Constitution itself does not automatically create damages remedies and that remedies against federal officers exist only when Congress or the Supreme Court has expressly authorized them. Decisions such as Bivens v. Six Unknown Named Agents, FDIC v. Meyer, and Egbert v. Boule make clear that states have no authority to create parallel, substitute, or supplemental causes of action for federal constitutional violations. A state may not declare that if a federal officer violates the Constitution, the injured party may sue under state law; such a structure is inherently unconstitutional.

The proposal also presents a direct Supremacy Clause violation by interfering with federal operations. By subjecting federal officers who are executing federal law to state-created civil liability based on state legislative judgment, the legislation would intrude into an area the Constitution reserves to the federal government. From McCulloch v. Maryland onward, the Supreme Court has consistently held that states may not regulate, punish, or deter the lawful execution of federal authority. Even when a federal officer is alleged to have acted unconstitutionally, the mechanism for review and remedy must be federal in nature, not imposed by a state legislature.

Compounding this problem is the doctrine of federal sovereign immunity. Although the proposal claims to target “federal officers,” any lawsuit based on actions taken in an officer’s official capacity is legally treated as a suit against the United States itself. Unless Congress has expressly waived immunity, such suits must be dismissed. A state legislature has no authority to waive federal sovereign immunity, and recharacterizing claims as “individual capacity” actions does not cure the defect when the conduct arises from federal duties or when the relief sought would effectively deter or punish federal action.

The proposal is also in direct conflict with the Supreme Court’s modern Bivens jurisprudence, which represents one of the strongest grounds for its illegality. The Court has repeatedly emphasized that the expansion of remedies against federal officers is a separation-of-powers question reserved for Congress. Courts themselves are instructed not to create new causes of action, and states are even more clearly prohibited from doing so. In Egbert v. Boule (2022), the Court explicitly warned against “end-runs” around Bivens limitations through alternative forums or legal theories that effectively recreate barred remedies. A state statute attempting to do precisely that would almost certainly be struck down as preempted.

The proposal’s attempt to justify itself through a “qualified immunity parity” argument does not salvage its legality. While it is true that state and local officers are subject to civil liability standards, those suits arise under 42 U.S.C. § 1983—a federal statute enacted by Congress. Federal officers are not covered by § 1983 and are governed by entirely different federal doctrines. A state cannot reason that because Congress authorized lawsuits against state officers, it may independently authorize lawsuits against federal officers. Such a leap directly violates principles of federal supremacy.

Even if the legislation were enacted, its practical effect would be minimal. The Department of Justice would remove such cases to federal court and assert defenses including Supremacy Clause preemption, sovereign immunity, Westfall Act substitution, and failure to state a claim. Courts would almost certainly dismiss these actions at the pleading stage. As a result, the law would function largely as a symbolic gesture, unenforceable in practice and invalidated upon its first serious legal challenge.

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