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American Federalism: April Preview

March was a curious month for federalism studies. It began with a call by some legislators to introduce a 32-hour work week. March ended with a full-blown debate on Twitter over the precise application of the Extradition Clause in Article IV, Section 2 of the U.S. Constitution. Somewhere in the middle, legislators from the second largest state introduced a bill to secede from the Union.


In the meantime, the Federalism Index Project made some moves. We are excited to announce the publication of our newest version of the Federalism Policy Tracker (check it out here). We are also delighted to announce this year's Federalism Visiting Scholar, Kal Munis. Professor Munis is a professor in Political Science at Utah Valley University and is a leading scholar of America’s urban-rural political divide. Read more about Kal's work here.


Now on to the policy stuff.


In March, 15 items were added to the Federalism Policy Tracker on a range of issues from parents rights, ESG, energy, and a new DHS intelligence monitoring program. One bill introduced in the Texas state legislature had people asking, "Can Texas Legally Secede from the United States"?



While the legal route toward secession remains murky at best, it is notable that the talk of secession seems to be increasing in recent years. Secession is a topic that reminds us of how divided Americans are, and therefore, how important it is to study and understand the American federal system.


The States


As of writing, there are currently more than 80,000 bills or pre-files for 2023 sessions across the 50 state legislatures. Happily, the vast majority of them do not portend an end to the union.

As of writing, there are currently more than 80,000 bills or pre-files for 2023 sessions across the 50 state legislatures. Happily, the vast majority of them do not portend an end to the union.

Here are just a few of the policies attracting attention in the last few weeks:

  • Utah passed landmark social-media regulations aimed at protecting teens from social media. In the absence of federal legislation, other states - including Arkansas, Ohio, and Louisiana - are working through similar legislation to curtail minors' use of social-media platforms without parental consent

  • 19 states formed an "alliance" to push back against the so-called ESG agenda. The alliance was announced March 16, and included a draft resolution calling on other Governors to use their state resources to stop the expansion of ESG. Story here

  • A number of states are facing stiff resistance to their implementation of COVID-19 policies. The popular website Ballotpedia has published a list of lawsuits that are noteworthy and ongoing

  • Senators in Idaho are considering a new bill that would expand borders to include large parts of Oregon. Story here

  • FutureEd has published a Legislative Tracker, identifying the more-than 60 parental-rights bills in 23 states. View the tracker here

Congress


There are at least 3,274 bills and resolutions before Congress. Of those bills, 57 bills and resolutions had a significant vote in one chamber, making them likely to pass.


By our estimate, that means that roughly 0.02% of all Congressional activity are considered likely to have further action in the next few weeks or months.

...roughly 0.02% of all Congressional activity are considered likely to have further action in the next few weeks or months.

Among the bills more likely to pass (defined as more than 1%), here are a few with federalism implications:

  • A joint resolution was introduced on March 15th, which nullifies the recent WOTUS rule put forth by the EPA and DOD. Resolution here

  • On March 9th, H.R. 140: Protecting Speech from Government Interference Act passed the House. This bill “generally prohibits federal employees from censoring the speech of others while acting in an official capacity.” Read more here

  • House republicans have launched a probe in to a new DHS intelligence monitoring program. According to house co-chairs, the under-the-radar DHS program raise concerns about the Department's "overreach of its statutory mandate" and "potential violations of Americans' fundamental civil liberties." More here

  • H.J.Res.30 is a resolution that would nullify an ESG rule regarding retirement investing. It was vetoed by President Biden on March 20th. View bill here

  • H.J.Res.26, “Disapproving the action of the District of Columbia Council in approving the Revised Criminal Code Act of 2022” was signed by the President on March 20th. Read law here

  • On March 20th, the President also signed S. 619: COVID-19 Origin Act of 2023. View law here

There is a long list of bills that have no chance of passing, but may be significant for other reasons. Here is a short list that captured public attention:

  • H.R.1332 was introduced on March 1st and is designed to “reduce the standard workweek from 40 hours per week to 32 hours per week.” View bill here

  • The Fair Act was reintroduced to Congress, which if passed, would curb federal forfeiture. Learn more here

  • Senate Bill S.628, titled the "Guidance out of Darkness Act" was introduced with the purpose of increasing access to agency guidance documents. More here

  • House Republicans introduced a "Parents Bill of Rights"(passed the House on March 24th) that would require school districts to post curriculum and provide parents with a list of books in their library, among other measures. More here

Executive


President Biden has signaled his intentions to use Executive Orders and other executive branch powers while Congress remains gridlocked. In the last month, President Biden issued 2 Executive Orders, 2 Determinations, 4 Memorandums, 6 Notices, and 16 Proclamations.


Executive Orders

  • On March 14, President Biden signed an Executive Order on "Reducing Gun Violence." White House fact sheet

  • On March 27, President Biden issued a "Prohibition on the Use by the United States Government of Commercial Spyware That Poses Risks to National Security." EO here

President Biden also made headlines in other areas:

  • On March 20, President Biden issued his first veto, blocking a measure that would reverse Biden's controversial rule on the use of ESG in investment decisions. Story here

  • On March 14, President Biden delivered comments indicating his support a federal law that would prohibit states from preventing children from receiving "gender affirming care." His remarks were taken, by critics, as signaling his intention to create a federal mandate that procedures like sex change operations would be allowed for kids. Story here

  • A new Department of Labor Contractor rule would narrow the definition of "independent contractor" under federal wage-and-hour laws. The rule could limit states' ability to shape their own new work rules. Some are asking if this constitutes a "quiet threat to federalism." Analysis here

The Courts


There were no fireworks at the Supreme Court this month, although there are a few cases to watch as April rolls around. April is the last month for the Supreme Court to hear new cases before the beginning of the 2023 session. The Courts’ focus in May and June will be on drafting opinions and determining what petitions to hear next session, followed by a three month recess. This means that other than the release of SCOTUS decisions, most judicial activity for the next few months will be at the state level.


other than the release of SCOTUS decisions, most judicial activity for the next few months will be at the state level.

Oral Arguments

  • SCOTUS heard oral arguments in the consolidated cases Arizona v. Navajo Nation (21-1484) and Dept of the Interior v. Navajo Nation (22-51) to determine whether the tribe has standing to sue for and legally compel the federal government to provide water from the Colorado river basin to tribal lands. Audio here. https://www.supremecourt.gov/oral_arguments/audio/2022/21-1484

Certiorari rulings


State Courts


As of March 19, state supreme courts have issued 1,366 rulings, compared to the fewer than 75 cases heard all term by SCOTUS. Here are a few notable state supreme court cases with federalism implications.

What did we miss? Let us know by clicking on the "Let's Chat" button on the bottom right of your screen!


Authors:


Johana Linford, Samuel Hill, Andy Bibby

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