After a sleepy Spring, June turned out to be a blockbuster month for the federalism policy world. 13 items were added to the Federalism policy tracker on a range of issues from student loans, free speech, to the "Greater Idaho" movement to relocate the Oregon/Idaho state line. A group of landmark decisions by the Supreme Court at the end of June will continue to dominate the discussion of state and federal authority going forward.
The States
As of writing, there are currently more than 118,615 bills or pre-files for 2023 sessions across 50 state legislatures. Of the 50 state legislatures, 11 are still in session, with another 2 in special session and 1 suspended.
Here are just a few of the policies attracting attention in the last few weeks:
Greater Idaho Movement: Voters in 11 rural counties of Oregon approved measures to "secede" from Oregon and join Idaho. Proponents view the vote as "emboldening" the movement.
Texas and Title IX: Texas has filed a lawsuit challenging the Biden administration's interpretation of Title IX, arguing that administration's guidance is coercive and puts federal funding at risk. This marks Texas' 50th lawsuit against the Biden administration. Read more here
Idaho PILT: Idaho is expected to receive $38 million in federal PILT (Payment in Lieu of Taxes) funding for public lands. The funding will help counties maintain services as they cannot collect taxes on federal lands. Story here
Michigan cracks down on pronouns: a Michigan bill plans to criminalize "wrong pronouns." Michigan's state House passed HB 4474, making it a felony to intimidate someone by using the wrong gender pronouns. Critics argue the bill lacks clarity in defining harassment and poses a potential threat to First Amendment rights. View bill here
"Independent State Legislature": in Moore v. Harper, the Supreme Court ruled 6-3 against North Carolina, holding that state legislatures do not have exclusive authority over federal election rules. This is a landmark decision that signifies a total rejection of "independent state legislature theory."
Congress
There are at least 7,694 bills and resolutions before Congress. Of those bills, 119 bills and resolutions had a significant vote in one chamber, making them likely to pass.
There are at least 7,694 bills and resolutions before Congress. Of those bills, 119 bills and resolutions had a significant vote in one chamber, making them likely to pass.
By our estimate, that means that roughly 2% of all Congressional activity are considered likely to have further action in the next few weeks or months. Among those bills more likely to pass (defined as more than 1%), here are a few with federalism implications:
"RESTRICT Act": bill would require federal actions to identify and mitigate foreign threats to information and communication technologies in the United States. The proposed legislation would empower the Department of Commerce to investigate and mitigate threats from foreign adversaries. View bill here
"Fiscal Responsibility Act": proposes to increase the federal debt limit, establish new discretionary spending lemons, rescind unobligated funds and expand work requirements for federal programs. Read bill here
There is a long list of bills that have no chance of passing, but may be significant for other reasons. Here are three that captured public attention recently:
"REINS Act": the "Regulations from the Executive in Need of Scrutiny" (REINS) Act passed the house. The bill establishes a Congressional approval process for major rules and requires review of 20% of agency rules currently in effect. Read bill here
H.Res.57: proposes to "impeach Joseph. R. Biden...for abuse of power by enabling bribery and other high crimes and misdemeanors." View bill here
H.J.Res.45: would nullify a Department of Education rule "that suspends federal student loan payments and discharges debt" was vetoed on June 6th, with Congress failing to override the veto. View resolution 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, 5 Memorandum, 3 Notices, and 12 Proclamations.
At least one of the orders may have significant federalism implications:
On June 28, President Biden signed an Executive Order on “Protecting Access to Reproductive Healthcare Services." The order directs agencies to "take action to protect access to reproductive services, including contraception and abortion." EO here
Federal agencies under the direction of President Biden made headlines in other areas:
BLM Public Lands Use: In June, the Bureau of Land Management (BLM) moved forward on adding "conservation and health" as official uses for public lands. The rule would also put recreation on par with other land uses. The BLM received thousands of comments on the rule, including some concerns over potential conflicts and interpretation of "unusable lands." The Bureau has extended the deadline for public input to July 5. Story here
EPA Waters of the United States: June 26, the EPA announced its intention to issue a new Waters of the United States (WOTUS) rule by September 1, 2023. The new rule will not seek public comment and is expected to be consistent with the Supreme Court holding in Sackett v. EPA. Learn more here
EPA Vehicle Emissions Standards: In June, the EPA moved forward on Corporate Average Fuel Economy (CAFE) standards. The EPA proposes new emissions standards for light and medium-duty vehicles. If finalized, the standards would be the most stringent ever issued in the United States. Read more here
Department of Energy Battery Charging Rule: On June 22, the U.S. Department of Energy proposed a new rule to change the energy conservation standards for battery chargers. Some critics of the legislation argue it would "compel" small businesses to redesign their products and "incur the costs of retooling their production lines," increase capital expenditures by "up to 75% annually over the next two years." More here
Supreme Court
Haaland v. Brackeen - By a vote of 7-2, the Court found that custody requirements imposed by the Indian Child Welfare Act (ICWA) are constitutional, and do not violate the 10th Amendment.
United States v. Texas – In an 8-1 decision, SCOTUS held that Texas and Louisiana lack Article III standing, and may not sue the Biden administration for prioritizing specific groups for deportation.
Mallory v. Norfolk Southern Railway Co. – In a 4-1-4 decision, SCOTUS held that out-of-state entities may have to submit to jurisdiction in the state of PA if they wish to do business there. The decision leaves PA open to later challenges based on the application of the dormant commerce clause to issues of interstate federalism.
Moore v. Harper - SCOTUS ruled 6-3 that the federal elections clause does not vest state legislatures with “exclusive and independent authority” in setting rules over the management of federal elections.
Arizona v. Navajo Nation – In a 5-4 decision, SCOTUS held that the 1868 treaty establishing the Navajo reservation does not require the United States to secure water for the tribe.
Authors:
Andy Bibby, Sam Hill, Johana Linford