"Summer's lease hath all too short a date"
-Sonnet 18
August was an interesting month for federalism news, and despite a summer convention process that left many Americans fatigued by national party politics, a lot of us are
left hoping that summer would stick around just a little while longer.
Several items were added to the Federalism Policy Tracker, from land policy to election integrity, to a number of increasingly bold election promises by both national parties that are unlikely to be realized, by whoever takes the White House in 2025.
Federalism in Focus
With the November election approaching, and with the House in recess until September 9th, there have been relatively few blockbuster cases or major legislation with federalism implications. A few items are attracting attention and may be worth watching in September. Here is our selection of the top issues affecting states or with implications for American federalism in August:
Election-Year Promises: President Biden proposed a plan to reform the Supreme Court in an Opinion piece in the Washington Post. Kamala Harris promised to fight "price gouging," although the plan is currently lacking details. Donald Trump, meanwhile, recently promised to make IVF free for all women, a position that could set up a number of conflicts with existing state laws on fetal personhood, among other issues.
Cost of Regulation: A new report was released from the Competitive Enterprise Institute in August. The authors of the Ten Thousand Commandments conclude that the total compliance costs and economic effects of regulations in 2024 will rise to a whopping $2.117 trillion annually.
Supreme Court Schedule: The Supreme Court released its schedule for the upcoming term. 9 cases have been scheduled for its October sitting and 7 for November. The cases cover issues related to "ghost guns,"the scope of the EPA, and "sex transition treatments" for minors. The Federalism Policy Tracker will be reporting on possible implications for states and for American federalism, as they develop.
Utah Lands: Utah made national news in August with its filing of a major public lands lawsuit, requesting the Supreme Court to review the question of whether the federal government can "hold unappropriated lands within a state indefinitely."
Immigration: in late August, the Biden administration promised to restart an immigration program that had been previously paused over fraud concerns. The program would cover migrants from Cuba, Haiti, Nicaragua and Venezuela, and if enacted, would further expand pathways for legal entry.
State Roundup
The states are often called "the first branch of government." While state politics typically receive less attention in the study of US Government, they remain vital to maintaining the overall balance of power in the American federal system. Contrary to some visions of the American government that focus only on the high-stakes battles in DC, or the intrigues in the Presidential Royal Courts, the states continue to carry out most of the important functions in our lives, from education to healthcare to welfare and crime.
As of writing, there are currently more than 142,368 bills or pre-files across the 50 state legislatures. 5 states are currently in session, 4 states have no regular session this year, and 41 states are adjourned.
The States and Federalism
Here are just a few of the policies attracting attention in the last few weeks:
Utah Public Lands: Utah has filed a major public lands lawsuit, requesting the Supreme Court to review the question of whether the federal government can "hold unappropriated lands within a state indefinitely."In a statement, Attorney General Sean D. Reyes said that current land policy "violates state sovereignty and offends the original and most fundamental notions of federalism."
Privacy and Parental Consent Laws: Several states have passed or are considering laws that regulate online privacy and social media access, particularly targeting youth. Republican-led states like Utah, Florida, Georgia, and South Carolina introduced bills requiring parental consent for minors to access social media. Similar laws in California and other blue states are in development. This reflects a broader trend where states are crafting their own laws to protect youth from the harmful influences of social media, while legislation is stalled at the national level. Some have argued that Congress is positioned to pass landmark social media regulations, perhaps as early as October 2024, pending the House of Representatives’ vote on the Kids Online Safety Act (KOSA). Read here for more
Voter ID: New voting laws in North Carolina and other states will require voters to show a photo ID for the first time in a presidential election. Meanwhile, other states are making plans to prevent tightening of voter ID restrictions, following California who just recently passed a bill banning voter ID laws
Minimum Wage: NCSL has published an updated map of minimum wage laws across the states. Read more here
Congress
Despite its flagging popularity, Congress plays an important role in respecting the autonomy of state governments within their spheres of authority. As Federalism scholar Martha Derthick has noted, Congress "both embodies federalism and influences how federalism is put into practice."
Given that most Americans associate Congress with gridlock, readers might be surprised to learn that Congress is active - even though the vast majority of legislation are "dead on arrival." As of writing (August 28), there are at least 17,098 bills and resolutions currently before Congress.
Of course, action can be symbolic. Of these bills and resolutions, 534 had a significant vote in one chamber recently, giving them a "greater than zero" probability of passing. By our estimate, that means that roughly 3% of all Congressional activity is considered likely to have further action in the upcoming weeks or months.
0 bills were enacted during August, down from July's count of 6.
This brings the current total of enacted bills to 270 for this session, compared to 1,234 last session. The website GovTrack estimates that 2% of all laws were enacted this session.
Federalism Implications
Among the resolutions and bills more likely to pass (with more than a zero percent chance of becoming law), here are a few with federalism implications:
S.4973: The "No Kings" Act was introduced in an attempt to reverse the Supreme Court's immunity decision. Learn more here
S.4381: the "Right to Contraception" had a "more than zero" percent chance of being passed, according to Govtrack, but was recently filed as "dead due to a failed vote for cloture."
H.R.1425: the "No WHO Pandemic Preparedness Treaty Without Senate Approval Act" was moved ahead for consideration on August 29. The bill would require "any convention, agreement, or other international instrument on pandemic prevention, preparedness, and response reached by the World Health Assembly to be subject to Senate ratification."
Executive
In July, President Biden issued 0 executive orders, 1 determination, 5 memorandums, 2 notices, and 6 proclamations.
For information on executive orders over time, see our "Executive Orders" primer.
Agencies
As of August 30th, there are 71,152 pages in 2024's Federal Register with an average of 2,033 pages added each week.
Contributing to that total are 1,182 proposed rules and 2,109 final rules. Additionally, there are 155 pending actions across various agencies.
Here are the agencies with the most "regulatory actions" currently under review:
For more on regulations and how they affect American federalism, see our Regulations primer here
Judiciary
The U.S. Supreme Court is currently on its summer break. No hearings are scheduled until the new term begins in October of this year. However, 16 cases have been scheduled for the 2024 term, with an additional 12 waiting to be scheduled. The Court has also been reviewing cases in its shadow docket.
Check back here in September for an updated list of Supreme Court cases with federalism implications.
What issues matter to you most? What policies are you watching in your state? What did we miss? Let us know by following us on X, Instagram, or Facebook or by using the "Let's Chat" button on the bottom right of your screen!
Authors: Johana Linford and Andrew Bibby
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