"The maintenance of federalism involves 'thinking federal', that is, being oriented toward the ideals and norms of republicanism, constitutionalism, and power sharing that are essential to the federal way"
-Daniel Elazar, Exploring Federalism (1987)
July might have been a slow month for federalism related news, but things are starting to heat up as the November election draws near. A number of new items have been added to the Federal Policy Tracker on a range of topics, from voting rights to immigration and a new proposal by President Biden to reform the Supreme Court.
President Biden calls for term limits, ethics code, and an amendment to limit presidential immunity, July 29, at the LBJ Presidential Library in Austin Texas
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, however. Here is our selection of the top issues affecting states or with implications for American federalism in July:
Biden Proposal to Reform the Supreme Court : Biden's proposal to institute term limits for Supreme Court Justices is popular, and it would certainly change the dynamic of the high court and the way it operates. It is hard to see how any of Biden's proposals could make any headway in this current environment, however. Noah Feldman outlines why the plan is "Doomed to Fail" while Ian Millhiser at Vox calls the reforms "mostly useless."
Trump Assassination Attempt: on July 30, the new Secret Service Director and FBI officials faced questions from the Senate. Ronald Rowe has been appointed acting director of the Secret Service. He now oversees more than 7,800 special agents, law enforcement officers, and administrative staff.
Voter Eligibility Act: on July 10, the House passed the "Safeguard American Voter Eligibility Act" (SAVE), a bill to make it unlawful for noncitizens to vote in federal elections. Critics say the bill is an "attack on voting rights" and argue that there is no evidence of widespread voting fraud. So far, 36 states have introduced voter ID laws, although none are as strict as on the form of ID as under the SAVE Act. President Biden has promised to veto the bill.
Transgender Sports Ban: in July, a federal court ruled against a transgender "sports ban." Officials from West Virginia and Idaho have filed appeals with the Supreme Court, seeking to overturn rulings that blocked laws in those states from taking effect. The cases could be heard as early as September. West Virginia AG Patrick Morrisey said the case would help "determine the fate of women's sports across the entire country for many years to come," if it is taken up by the Supreme Court.
Biden Spring 2024 Unified Agenda: the Biden Administration recently released its Unified Agenda. Released twice per year, the UAFRDA is designed to inform the public about upcoming regulations and the status of current rules affecting states. For a critical analysis, see "Biden Releases Spring 2024 Unified Agenda of Federal Regulations" by Clyde Wayne Crews.
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 in the national 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 141,270 bills or pre-files across the 50 state legislatures. 6 states are currently in session, 1 is in special session, 4 states have no regular session this year, and 39 states are adjourned.
The States and Federalism
Some readers may be surprised to learn that there are no organized or systematic attempts to track legislation across the states that have implications for Federalism. The Federalism State Policy Tracker is our attempt to correct this oversight.
Here are just a few of the policies attracting attention in the last few weeks:
Kansas Regulations from the Executive In Need of Scrutiny Act: This state bill is a REINS-style state law, modeled after the federal REINS Act. It intends to increase legislative oversight of state agencies. Florida, Wisconsin, and Indiana have passed similar laws. Analysis here
Transgender Sports Ban: Two states, West Virginia and Idaho are appealing a federal court ruling, which concluded that laws banning transgender athletes from competing in womens' sports violated Title IX. Read more here
Washington State Ballot Initiative to Protect Natural Gas: Washington's Initiative 2066 would block state and local governments from restricting gas use in buildings, following previous legislative activity in 26 other states. Learn more here
Arizona Proposition 314: If approved in November elections, this measure would make it a crime under Arizona law to "cross the border illegally – allowing police to arrest anyone who can’t prove U.S. citizenship or legal residency and state courts to order deportations."
Record Number of States Recalling State Officials: According to Ballotpedia, states have recalled a record-breaking 38 officials so far this year. Find out more here
For more on each of these actions, see our "State Policy Tracker."
Congress
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." Today there are at least 16,613 bills and resolutions currently before Congress.
Of those bills and resolutions, 533 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.
6 bills were enacted during July, up from June's count of 1.
This brings the current total of enacted bills to 259 for this session, compared to 1,234 last 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:
H.R.8957: A Nebraska tribe will get thousands of acres of land back from the federal government, after the passage of the "Winnebago Land Transfer Act". Read more here
H.R.8957: The PROVE IT Act directs the DOE to oversee a study and report on the greenhouse gas emissions of a list of US products. Learn more here
S.4749: The Stop Corporate Capture Act would incorporate the Chevron doctrine, giving agencies deference in courts when statutes are ambiguous. Learn more here
H.R.890: The GOOD Act would require agencies to create easier access online to guidance documents - which some consider regulatory dark matter. This is similar to an Executive Order issued during the Trump Administration which required agencies to create guidance portals to provide added oversight. This order was later rescinded by President Biden. Read more here
Executive
In July, President Biden issued 2 executive orders, 2 determinations, 8 memorandums, 4 notices, and 9 proclamations.
Important updates:
On July 31, Secretary of State Ashcroft filed a lawsuit against Biden's executive order directing federal agencies to expand access to voter registration. The lawsuit claims that the executive order "oversteps federal authority and infringes on states’ rights to manage their own election procedures." In an interview, Ashcroft says the executive order "violates the principles of federalism." Read more here
President Biden's Student Loan Plan was halted again. An order from the 8th Circuit Court of Appeals bars the US DOE from implementing the SAVE plan while the court considers a request from seven state attorneys general for a permanent injunction. Learn more here
For information on executive orders over time, see our "Executive Orders" primer.
Agencies
As of July 26th, there are 60,790 pages in 2024's Federal Register with an average of 2,026 pages added each week.
Contributing to that total are 1,007 proposed rules and 1,777 final rules. Additionally, there are 150 pending actions across various agencies.
Here are the agencies with the most "regulatory actions" currently under review:
Some proposed and final rules that have been issued over the past month include:
DOL Overtime Rule: A new rule went into effect nationwide for private employers on July 1st and faces legal challenges in Texas federal courts. Read more here
EPA Power Plant Rules: Over 20 states have asked the Supreme Court to temporarily block EPA's suite of final rules affecting power plants emissions while the legal challenges are being decided in federal courts. Learn more here
2024 edition of Ten Thousand Commandments: The latest edition of the Ten Thousand Commandments was released this month. The publication covers regulatory topics such as: the number and cost of regulations, rulemaking agency activities, and some of the changes to the rulemaking process during the Biden administration. Read here
For more on regulations and how they affect American federalism, see our Regulations primer here
Judiciary
The U.S. Supreme Court had its last day on July 1st, where they released the decision of 4 cases, and is now 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.
Of these actions, those with federalism implications include:
Texas v. New Mexico and Colorado: The Supreme Court denied a motion that the involved states could enter into the proposed consent decree regarding the Rio Grande Compact without the federal government's consent. View case details here
Williams v. Washington: The Supreme Court will examine "whether exhaustion of state administrative remedies is necessary to bring federal civil rights claims in state court." View the case coverage here
Lyft v. California: A case being petitioned before the Court asks the question of "whether the Federal Arbitration Act preempts state law authorizing public officials to pursue claims for individualized monetary relief in court for the benefit of individuals who agreed to resolve those claims in arbitration, thereby circumventing those individuals’ arbitration agreements." This case also correlates with Uber Technologies v. California.
State EPA Plans: Two cases in the pipeline (PacifiCorp v. Environmental Protection Agency and Oklahoma v. Environmental Protection Agency) deal with the question if a challenge to an EPA ruling can only be heard in the U.S. Court of Appeals for the District of Columbia Circuit when a published action/rule was applied consistently to other states or regions.
Learn more about the impact the recent Supreme Court decisions will have on state courts here
State Courts
State supreme courts have issued over 5,451 opinions so far in 2024. These cases cover a variety of topics including:
Elections: League of Women Voters of Utah v. Utah State Legislature, Priorities USA v. Wisconsin Elections Commission
Government Power: Evers v. Marklein, Castellanos v. State of California et al.
Reproductive Rights: Planned Parenthood v. Urmanski, Hodes & Nauser v. Kobach
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
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