The preservation and strengthening of our federal system depend in the last analysis on the self restraint and responsibility as well as the wisdom of our actions as citizens.
-Report of the Commission on Intergovernmental Relations, 1955
Happy New Year! We want to thank everyone for their support and for helping us share this monthly newsletter on American federalism. 2024 was a big year for our small team. We have a lot of work to do, and an exciting year ahead as we pull together to find ways to restore a healthy federal balance.
December saw a continuation of a few major federalism themes. Among a number of important items, the incoming Trump administration has pushed forward with the "DOGE" plan to "cut the federal government down to size." The creation of DOGE is just one example of how a new Trump presidency could shape the balance of power going forward.
While not necessarily federalism-related, Congress did manage to pass one piece of bipartisan legislation that drew almost no criticism - a rarity for Washington. On December 24, President Biden signed S.4610, a bill to amend title 36, United States Code, to "designate the bald eagle as the national bird."
Federalism Flashpoints
A number of items were added to the Federalism Policy Tracker. Here is our selection of the top 7 issues affecting states or with implications for American federalism in the last month of 2024:
Education Shakeup: a bill to "eliminate the Department of Education" continues to attract attention. On New Years Eve, Vivake Ramaswamy of "DOGE" said that kids' low reading scores were a "5-alarm fire." He then reiterated his promise to eliminate the DOE. Other lawmakers have defended the proposal for different reasons, including concerns over whether the agency is "indoctrinating young people with inappropriate racial, sexual, and political material." A related bill, "Returning Education to Our States" is expected to be re-introduced in the first weeks of the 119th Congress.
Transgenderism and the States: in December, the Supreme Court heard oral arguments in U.S. v. Skrmetti, a high-profile case concerning a Tennessee law enacted in 2023 that bans gender surgery and hormone treatment for patients under the age of 18. Meanwhile, a group of cases are working their way through the courts on the issue of Transgender sports bans. Incoming President Trump has promised to "keep men out of women's sports," while also signaling a plan to cut federal funding to "any school pushing critical race theory, transgender insanity, and other inappropriate racial, sexual or political content on our children.”
Immigration Showdown: just before New Year's, the National Border Patrol Council issued a warning to Blue states promising to shelter illegal immigrants in sanctuary jurisdictions. NBPC president said "It would be incumbent upon those sanctuary cities and jurisdictions to understand one thing: Federal law supersedes state law. Any municipality, anybody that's going to get in the way is going to be dealt with."How the new administration will approach some of the more tricky federalism questions related to immigration will be worth watching. Commenters point out that President Trump would have a few likely Constitutional options, including the use of the Insurrection Act or other emergency powers, like requesting National Guard assistance.
Dismantling DEI: as of writing, at least six states have banned or limited DEI at colleges or universities in 2024. Idaho became the latest state to ban "specific structures" related to DEI in December, including a new rule that prohibits employees or students to declare gender identity or preferred pronouns. These state actions come at the same time as Congress considers the"Dismantle DEI Act", which passed out of the House Oversight Committee recently. Federal legislation would eliminate DEI practices within the federal government, while also seeking to limit DEI mandates from being used by companies pursuing federal contracting and grants.
Louisiana and the Ten Commandments: a Louisiana law requiring public school districts to display the Ten Commandments goes into effect today (January 1). In June 2024, Louisiana enacted House Bill 71, mandating the display of the Ten Commandments in all public school classrooms by January 1, 2025. This legislation required each classroom to exhibit a poster or framed document, at least 11 by 14 inches, featuring the Ten Commandments as the central focus in a large, easily readable font. Just before Christmas, the ACLU threatened to sue. In a related suit, a federal judge ruled that the law is likely unconstitutional, if it leads to "coercion" of students. The Fifth Circuit has scheduled arguments for January 23, 2025, to address the state’s appeal.
Competitive Federalism: A Report Card: Recently, Professor Michael Greve published a report on the "State of Competitive Federalism" arguing that we face a "mixed picture for the recovery of competitive federalism." Greve's report includes a 14-page Explainer, summarizing recent developments in the federalism policy world.
First Day Executive Orders: President-elect Trump has outlined an ambitious agenda for his first day in office, including a number of major executive actions. The agenda includes:
resuming construction of the border wall, initiating mass deportations, and an end to birthright citizenship.
reversing President Joe Biden's climate policies, while pushing for a major increase in oil and gas drilling.
eliminating diversity, equity, and inclusion initiatives within federal agencies and revoking certain protections for transgender individuals, particularly in educational settings.
pardoning some or all of those convicted in the Jan. 6 Capitol protest and riots.
imposition of historic tariffs, including a potential 60% tariff on goods from China and a possible 10% tariff on other imports, in response to "massive amounts of drugs, in particular Fentanyl, being sent into the United States."
Stay tuned for more developments. We'll be tracking President Trump's plans on Executive Actions as we get closer to the inauguration.
State Roundup
Although most attention has been centered on the Presidential debates, it is worth remembering that states remain the most important site of most legislation, even in this era of the so-called "imperial presidency." Although it will be tempting to focus on national headlines in 2025, states should continue pushing for balance, devolution, and public education on Federalism issues. States are still called "the first branch of government" for a reason.
As we head into January, it is all the more important to remember the role that states play in preserving liberty, enhancing democracy, and managing conflict. We encourage readers to remind their colleagues and friends that states are still the most trusted level of government. Last year we published this report on "Trust in Government" which shows that by 2023 more than 57% of Americans trust their state government to handle most problems.
This number dropped recently, to about 55%. Trust in the federal level continues to decline, a trend definitely worth watching in 2025.
The States and Federalism
As of writing, there are currently more than 162,749 bills and resolutions across the 50 state legislatures. Only 2 states were in session in December with 1 state (California) in special session, 4 states have no regular session this year, and 43 states are adjourned.
The Federalism Index Project will be tracking state policies with federalism implications for 2025. Please contact us if you know someone who might like to assist, or if you have any items we should be focusing on.
Congress
Newly elected members of Congress will be in office this week - by January 3rd at midday.
As of writing (December 30th) there are at least 19,311 bills and resolutions currently before Congress.
Of these bills and resolutions, 751 had a significant vote in one chamber recently, giving them a "greater than zero" probability of passing.
76 bills were enacted during December, up from November's count of 30.
This brings the current total of enacted bills to 521 for this session, compared to 1,234 last session. The website GovTrack estimates that 2% of all laws were enacted this session.
Federalism Implications
Several bills in recent congressional sessions have garnered significant attention due to their implications for federalism. Here are a few "Most-Viewed" Bills according to Congress.gov that people are watching:
Returning Education to Our States Act: In December, 2024, legislative efforts to abolish the U.S. Department of Education (DOE) gained renewed momentum. Returning Education to Our States Act, introduced by Senator Mike Rounds (R-S.D.) on November 21, 2024, proposes eliminating the DOE and reallocating its functions to other federal agencies.
WHO Pandemic Preparedness Treaty Without Senate Approval Act (H.R. 1425): This bill would require any international agreement on pandemic prevention, preparedness, and response reached by the World Health Assembly to be subject to Senate ratification, emphasizing the Senate's role in treaty approval.
No Kings Act: an interesting proposal by Senate Majority Leader Chuck Schumer, with over 30 Democratic senators, seeks to place some limits on presidential immunity. The bill aims to reaffirm that U.S. Presidents and Vice Presidents are not immune from criminal prosecution for actions that violate federal law. The bill attempts to clarify that Congress holds the authority to determine the applicability of federal criminal laws to these high offices. As of writing, "The No Kings Act" has been read a second time and placed on the Senate Legislative Calendar under General Orders (Calendar No. 494). The bill awaits further deliberation and voting in the Senate.
Border: The most recent significant legislative effort on immigration was the Border Act of 2024 (S.4361), introduced in May 2024, which aimed to enhance border security measures. This bill has not advanced past the introduction stage.
Stop Corporate Capture Act (S. 4749): This proposed legislation aims to strengthen the Chevron doctrine, granting more deference to federal agencies in interpreting ambiguous statutes, in light of the recent U.S. Supreme Court decision. The bill was introduced in 2021 by Rep. Pramila Jayapal, and has been reintroduced by Sen. Elizabeth Warren. While unlikely to gain traction, it represents one of the latest efforts by Democratic lawmakers to reinstate Chevron deference.
Finally, S.4610 became law. It designates the bald eagle as the national bird.
Executive
In December, President Biden signed a few Executive Orders, although none with significant implications for federalism. In total this month, his office issued 0 determinations, 4 executive orders, 5 memorandums, 2 notices, and 12 proclamations.
December 18, 2024: An executive order was issued to close all executive departments and agencies of the federal government on December 24, 2024, granting federal employees the day off before Christmas Day.
December 23, 2024: An executive order was signed adjusting certain rates of pay, effectively implementing the federal pay raise for 2025.
December 30, 2024: An executive order was issued directing the closure of U.S. government agencies and executive departments on January 9, 2025, as a mark of respect for former President Jimmy Carter, who passed away at the age of 100.
January 2, 2025: looks like President Biden is also preparing a decree to permanently ban new offshore oil and gas decrees in some U.S. coastal waters.
For information on executive orders over time, see our "Executive Orders" primer.
Agencies
Federal agencies create regulations through a structured process known as rule making, which is governed by the Administrative Procedure Act (APA) of 1946. In theory, this process helps to ensure transparency, public participation, and accountability in the development of federal regulations.
As of January 1, there are 92,786 pages in 2024's Federal Register with an average of 1,974 pages added each week.
According to the Competitive Enterprise Institute (CEI), agencies issued 66 final regulations in the last week of November. This is the equivalent of a new regulation every two hours and thirty-three minutes.
As of January 1, the Federal Register was on pace for 107,261 pages. According to the CEI, this means the Biden administration will smash the all-time record "adjusted page count" of 96,994, set in 2016 - by Donald J. Trump.
Here is an updated graph of agencies with the most regulatory actions currently under review:
We'll be tracking regulations under the Trump administration as well as any attempts to control the pace and scope of regulations under the new administration. For more on regulations and how they affect American federalism, see our Regulations primer here
Judiciary
On December 30, Chief Justice Roberts released a year-end report. The report closed with a warning that the Supreme Court, the "crown jewel" of American democracy, was "under siege."
The December schedule was busy, although there were few major decisions and relatively few significant cases with federalism implications. These cases will be worth watching in 2025:
United States v. Skrmetti: on December 4, 2024, the Court heard oral arguments in United States v. Skrmetti, a pivotal case concerning Tennessee's prohibition of medical treatments for trans minors. The central issue is whether such bans violate the Equal Protection Clause of the Fourteenth Amendment. The Court's decision, anticipated by early summer 2025, could have far-reaching implications for similar laws across multiple states.
Garland v. VanDerStok: the U.S. Supreme Court is currently deliberating Garland v. VanDerStok, an important case concerning the regulation of "ghost guns"—untraceable firearms assembled from kits or 3D-printed parts. Critics say that because these weapons lack serial numbers, they are more appealing to individuals seeking to circumvent background checks and other legal requirements. A decision is expected Spring/Summer 2025.
Free Speech Coalition v. Paxton: is a pivotal case before the U.S. Supreme Court set for oral arguments on January 15, 2025. The case examines the constitutionality of a Texas law, House Bill 1181 (H.B. 1181), which mandates age verification for users accessing websites containing a substantial amount of sexual content deemed "harmful to minors." The law requires such websites to implement measures ensuring that users are at least 18 years old before granting access.
State Supreme Courts
State supreme courts have issued over 8,710 opinions in 2024. That is the equivalent of roughly 25 opinions per day.
These cases cover a variety of topics including:
Environment: Held v. Montana, and The Marcellus Shale Coalition v. Department of Environmental Protection of the Commonwealth
Government Structure: Evers v. Marklein, In re Benson, and Acorn International v. State
Speech and Religion: Perez v. City of San Antonio, Masterpiece Cakeshop v. Scardina, and Oberholzer v. Galapo
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: Andrew Bibby and Johana Linford