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American Federalism: February in Review


Several new items have been added to the Federalism Policy Tracker on a range of important federalism topics, from campaign legislation, school debt cancellation, border issues, and state sovereignty.


Here is a selection of the top issues affecting states or with implications for American federalism in February:


  • Disqualification: The Supreme Court heard arguments in Trump v. Anderson, which will decide whether states may disqualify presidential candidates from the ballot under the Fourteenth Amendment.

  • "Dueling Border Visits": both President Biden and President Trump made trips to the US-Mexico border at the end of February, each seeking to capitalize on an increasingly fraught national debate over immigration

  • LGBTQ Bills: as of writing, there are 471 LGBTQ related bills across the United States affecting educational curricula, the definition of sex, school facilities, school sports, and healthcare. At least 23 states have passed legislation to restrict minors from receiving "gender-affirming care."




The States


As of writing, there are currently more than 112,000 bills or pre-files for 2024 sessions across 50 state legislatures. 40 states are currently in session with 5 states not yet convened. 4 states have no regular session this year, and 1 state (New Mexico) adjourned.


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


  • Utah Sovereignty: HB409 (Utah State Jurisdiction Amendments) affirms Utah state sovereignty and establishes a "presumption of state jurisdiction." Relatedly, SB 57 (Constitutional Sovereignty Act) was enacted on January 31st. It establishes a framework for the Legislature to "prohibit enforcement of a federal directive within the state by government officers if the Legislature determines the federal directive violates the principles of state sovereignty."

  • Arizona Defend the Guard Act: SB 1121 would prohibit Arizona governor from activating the Arizona National Guard in to "active duty combat" absent an official declaration of war from Congress

  • Tennessee Marriage Law: HB 878 allows those who are authorized to solemnize marriages to refuse to do so for "reasons of conscience or other religious beliefs."

  • Idaho Healthcare Jurisdiction Legislation: SB 1287 would declare limits on the World Health Organization in Idaho and require the Idaho Legislature to approve any recommendations from the U.S. Department of Health and Human Services before enactment.

  • Idaho Convention of States: the Idaho Senate advanced a resolution calling for a convention of states. 19 states have passed COS resolutions. 14 states now have active legislation in 2024

  • Spirit of Aloha: The Hawai'i Supreme Court issued a controversial decision that contradicts the US Supreme Court on the meaning of the Second Amendment, stating that it should "interpret the Hawaii Constitution before its federal counterpart." The Hawai'i high court added, "As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution."



Congress


There are at least 13,104 bills and resolutions currently before Congress. Of those bills and resolutions, 298 of them had a significant vote in one chamber, giving them a "greater than zero" probability of being passed.


Of the 13,104 bills and resolutions currently before Congress, 298 of them had a significant vote in one chamber, giving them a "greater than zero" probability of being passed.

By our estimate, that means that roughly 2.3% of all Congressional activity is considered likely to have further action in the upcoming weeks or months.


While both chambers have gone on winter recess limiting congressional activity, here are some legislative trends among bills and resolutions with federalism implications:


  • Local Government Support: HR 7350, HR 7439, and S 3749 deal with increasing accommodations for local leadership and strengthening law enforcement.

  • State Programs: HR 7191, HR 802, S 3753, and HR 7332 pertain to pedestrian safety, housing laws, energy savings programs, and state management of federal lands.

  • Borders: HR 7402, HRes 1031, and SRes 543 express support for States taking action at the border.

  • Grants/Funds to States: HR 7427, HR 7452, HR 7444, HR 7449, HR 7446, HR 7441, HR 7431, HR 7432, S 3778, SJRes 57, and HR 7309 deal with social security state grants, state Medicaid, education grants, rural partnership program grants, funding for broadband accessibility, coronavirus funding, and increase state eligibility for the contaminants program.

  • Elections: HR 7413 and S 3750 would affect redistricting and state programs for poll workers.



Executive


In the last month, President Biden issued 1 executive order, 2 memorandums, 4 notices, and 4 proclamations. As of February 23rd, there are 13,970 pages in 2024's Federal Register with an average of 1,746 pages added each week. Among these are 283 proposed rules and 425 final rules. Additionally, there are 167 pending actions across various agencies.


Of these actions, here are some that captured public attention:


  • School Debt Cancellation: The Biden administration has moved to cancel federal loans for more than 153,000 borrowers.

  • White House [Potential] Action on Asylum: Reports suggest that the White House is considering an executive order to "restrict migrants' ability to seek asylum at the US-Mexico border."

  • EPA Air Pollution Rule: In its first update in 12 years, the EPA has released a new rule that would push states to significantly reduce the level of air pollution and particulate matter (PM).


Judiciary


The U.S. Supreme Court heard 11 cases in February, with 11 more scheduled for the March sitting with 8 cases awaiting scheduling for this term. State supreme courts have been in the news a great deal, having issued over 1,210 opinions so far in 2024. Here are a few notable decisions from February.


  • Hawaii v. Wilson: The Hawaii Supreme Court has upheld a ban on carrying firearms in public in the state. The 7-0 decision departed from recent SCOTUS precedent supporting an individual right to bear arms, instead asserting "there is no individual right to keep and bear arms" under the state constitution.

  • Trump v. Anderson: SCOTUS heard arguments on Feb 8 over Colorado's attempt to remove Donald Trump from state primary ballots. As of Feb 29, challenges to Trump's candidacy have been filed in 36 states. Although the justices appeared skeptical of the reasoning in the CO case, no decision is forthcoming as super-Tuesday approaches. (SCOTUSblog)

  • Alabama In Vitro decision: On Feb 16, the AL Supreme Court held that un-implanted fetuses preserved in 'cryogenic nurseries' are to be considered protected children under the state's Wrongful Death of a Minor Act. The decision set off a flurry of constitutional and legislative activity, both in AL and around the country.

  • Trump Immunity: SCOTUS has agreed to an expedited hearing of Donald Trumps claims that he cannot be tried criminally for official actions taken as president after the D.C. Circuit Court of Appeals rejected them. Arguments have been scheduled for the April session. (SCOTUSblog)



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Authors: Johana Linford, Andrew Bibby, Sam Hill





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