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American Federalism: February Preview

Since December, 25 new policies have been added to the Bill Tracker, across a range of issues from border policy to water rights and gas stoves. Here are a few of the stories we will be following in February.

The States

  • A number of states have created new committees on federalism to monitor and review federal policy.

    • Missouri House Bill 174 would allow the House of Representatives to review the constitutionality of presidential orders.

    • The Ohio "Tenth Amendment Center" is tasked with monitoring federal executive orders and federal regulations for potential abuse or overreach.

    • The Idaho Federalism Committee recently drafted legislation to "protect the State of Idaho from the use of ESG standards." The bill failed out of committee but is being reconsidered by state lawmakers

  • New Jersey fishermen are appealing to federalism principles in their case against federal regulators who board their vessels for inspection - and then make them pay for the inspection. Attorneys general from 18 states are urging the Supreme Court to hear the case, and also to give guidance on "Chevron deference." Next action on the case is expected mid-February

  • On January 20, New Hampshire's State-Federal Relations and Veteran Affairs Committee held a hearing on HB 229, "Defend the Guard Act." If passed, the legislation would "prohibit the deployment of the New Hampshire National Guard into active combat without a declaration of war by Congress, as required by Article I, Section 8 of the U.S. Constitution." Story here

  • In New York, the Supreme Court has rejected requests to block recent gun control laws aimed at restricting concealed carry in sensitive places. The Court has decided instead to allow legal challenges to the law to play out in the Second Circuit of Appeals. District courts appear set to hear arguments in March

  • Oklahoma, Ohio, and Minnesota are at the top the list of various states"likely" to enact marijuana legislation in coming months

The Courts

  • In October 2022, the Supreme Court announced it would hear two cases that could dramatically affect the future of internet regulation under Section 230 of the Communications Decency Act. Justices are expected to hear arguments in Gonzalez v. Google and Twitter, Inc. v. Taamneh in February

  • Several states are seeking standing to sue the DHS to keep COVID-related Title 42 restrictions on immigrants at the southern border in place. The Supreme Court has agreed to hear arguments in late February or early March

  • The Supreme Court has rejected requests to block New York Gun-Control laws restricting concealed carry in sensitive places. The Court has decided instead to allow legal challenges to the law to play out in the Second Circuit of Appeals. District courts appear set to hear arguments in March

  • The Supreme Court has agreed to hear arguments in two cases relating to the Biden administration's student-loan debt relief program. Biden v. Nebraska and Department of Education v. Brown may help to decide if the student-debt relief program violates separation of powers and exceeds Article III executive powers. Both cases are likely to be heard in late February or early March

  • On January 26, a Colorado appeals court ruled against Masterpiece Cakeshop owner Jack Phillips, on grounds that he violated anti-discrimination law by refusing to make a cake in celebration of a customer's gender transition. Phillips reportedly seeks to appeal the rule in coming months /weeks


  • On January 31, House Republicans approved legislation to end the COVID-19 public health emergency. The measure is said to have "dim prospects" in the Senate, even despite President Biden's vow to end the emergency declarations by March - April

  • H.R.. 374 "A bill to abolish the Bureau of Alcohol, Tobacco, Firearms, and Explosives" was introduced on January 17. The bill was referred to the Judiciary Committee

  • A new provision in the House rules package, adopted in January, may make it easier for Congress to transfer lands to the states

Executive Branch

  • In January, the EPA and DOD issued a new rule on "Waters of the United States," in advance of the Supreme Court's decision in Sackett v. EPA. Since then, 25 Governors have asked the Biden administration to delay WOTUS implementation until a decision is issued, potentially in March or April

  • Rumors over a federal "gas stove ban" appear to have died down, although some now think that new ban efforts are "alive and well" and are likely to be revived in coming months at the state and local level.

  • President Biden's "California waiver" has drawn scrutiny from conservative groups, who question the President's use of an old waiver program originally designed to allow California to address its unique air-quality issues

  • The Department of Education has published a new "ambitious" regulatory agenda for 2023. This sets up a busy Spring session as states (and future presidential nominees?) jockey to outline their own plans for accreditation, state authorization, distance education, and other higher education hot topics

  • President Biden appears to be in the process of drafting an executive order on federal space regulations. The order could be finalized as early as February - March

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