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American Federalism: May in review

Eight new items have been added to the Federalism Policy Tracker on a range of issues including prayers in public schools, immigration policy, natural gas usage, and hormone therapy treatment for minors.

The States

As of writing, there are currently more than 110,479 bills or pre-files for 2023 sessions across the 50 state legislatures. Of the 50 state legislatures, 17 are still in session, with another 4 in special session and 1 in recess.

Of the 50 state legislatures, 17 are still in session, with another 4 in special session and 1 in recess.

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

  • New York will become the first state to ban natural gas in new buildings. Read more here

  • Florida passed a ban on Central Bank Currency, with other states considering similar legislation

  • Nebraska becomes the 17th state to pass restrictions on access to services like hormone replacement therapy for minors, signaling an increase in momentum to use greater caution in providing hormone therapy and gender-transition surgeries to minors. Learn more here

  • Idaho’s federalism commission met to discuss the Bureau of Land Management’s new public land rule. Read more here

  • Idaho’s federalism commission met to discuss the Bureau of Land Management’s new public land rule. Read more here

  • NCSL has recently released their 2023 forecast


There are at least 6,316 bills and resolutions currently before Congress. Of those bills and resolutions, 88 of them had a significant vote in one chamber, making them likely to pass.

Of the 6,316 bills and resolutions before congress, 88 of them had a significant vote in one chamber, making them likely to pass.

By our estimate, that means that roughly 1.4% of all Congressional activity is considered likely to have further action in the upcoming weeks or months. Among the resolutions and bills more likely to pass (defined as more than 1%), here are a few with federalism implications:

  • H.Con.Res. 40 “Expressing support for local law enforcement officers” passed the house on May 18, despite two of its original sponsors voting against it. Reps. Biggs and Buck ultimately voted against the measure due to objections over a last-minute addition of an amendment, saying that it “federalizes… certain aspects of local police enforcement.” Learn more here

  • H.R.467: HALT Fentanyl Act passed the House on May 25th. It would permanently place fentanyl-related substances as a class into schedule I of the Controlled Substances Act. Learn more here

  • S.J.Res. 23 rescinds an earlier rule that limited the ability of the National Marine Fisheris Service to designate an area as a “critical habitat.” It passed the Senate on May 11th. Read more here

  • H.R. 1163 “addresses fraud and overpayments of pandemic unemployment insurance (UI) benefits, including by providing incentives for states to investigate and recover overpayments of these benefits.” It passed the house on May 11th. View bill here

  • S.J.Res. 11 provides congressional disapproval for the EPA’s new air pollution rule regarding new motor vehicles. It was presented to the President on May 23. View resolution here

  • H.J.Res. 45 nullifies a rule by the Department of Education that “suspends federal student loan payments and discharges debt.” It passed the House on May 24th. Read resolution 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.J.Res. 42 would nullify a D.C policing reform act, which bans practices like chokeholds and includes greater public access to office disciplinary records. This resolution was vetoed on May 25th.

  • H.R. 3191: Defund the OTF Act of 2023 would ban “all federal taxpayer funds or grants to the Open Technology Fund.” It was introduced on May 10th. View bill here

  • H.Con.Res.44 urges “the establishment of a U.S. Commission on Truth, Racial Healing, and Transformation.” It was introduced on May 17th. Read bill here


May has been a very busy month for regulations and presidential actions. In May there were: 2 determinations, 3 executive orders, 3 memorandums, 5 notices, 30 proclamations, and an average of 1,639 pages added to the federal register each week (these pages included an average of 43 proposed rules and 53 rules issued).

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

  • On May 25th, President Biden exercised his presidential veto power for the fourth time during his presidency by vetoing H.J.Res. 42. This congressional disapproval aimed to challenge the approval of the Comprehensive Policing and Justice Reform Amendment Act of 2022 by the District of Columbia. Learn more here

  • The Department of Education updated its guidance on school prayer and religious activity. Read more here

  • A Trump Era regulation regarding “gainful employment” in universities receiving federal funding was overturned, returning to similar standards that were proposed during the Obama administration. Learn more here

  • Title 42 Immigration Policy expired, leading to significant changes in immigration policy. Read more here

  • The Environmental Protection Agency proposed new greenhouse gas emission standards for vehicles made in 2027-2032. The intention of the new rule is to create a greater push for the manufacture of electric vehicles. Learn more here

  • The Department of Energy issued new rules regarding energy and efficiency standards for dishwashers. This latest rule joins new standards affecting refrigerators, clothes washers, and stoves. View story here

  • The DOE also proposed a rule that would affect performance standards for power plants. Experts debate whether this new rule will survive upcoming litigation. Learn more here

The Courts

May proved to be an eventful month for the Supreme Court, with the release of multiple decisions and new cases added to the pipeline.


  • National Pork Producers Council v. Ross was decided on May 11th in a 5-4 decision (in favor of California) that “touched on constitutional issues of interstate trade and splintered the justices outside of their usual liberal-conservative blocs.”

  • The opinions for two similar cases were issued on May 11th for Ciminelli v. United States and Percoco v. United States which were reversed and remanded. Learn more here

  • Sackett v. Environmental Protection Agency was decided on May 25th in a 9-0 decision, which narrowed the definition of “Waters of the United States”. Read more here

  • On May 18th, Gonzalez v. Google LLC was decided 9-0. The case was vacated and remanded in a per curiam opinion. Learn more here

  • Tyler v. Hennepin County, Minnesota was decided on May 25th in a 9-0 decision in favor of Geraldine Tyler. Read more here

  • Ohio Adjutant General’s Department v. Federal Labor Relations Authority was decided on May 18th 7-2, which held that “a state National Guard acts as a federal agency for purposes of the Federal Service Labor-Management Relations Statute when it hires and supervises dual-status technicians serving in their civilian role.” Learn more here


  • The court granted certiorari for Loper Bright Enterprises v. Raimondo on May 1st, which will examine “whether the court should overrule Chevron v. Natural Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” Learn more here

  • Certiorari was granted for Alexander v. South Carolina State Conference of the NAACP on May 15th which examines racial gerrymandering by South Carolina’s General Assembly. Read more here

  • Two cases were consolidated, Brown v. United States and Jackson v. United States, and granted certiorari on May 15th.

Emergency Docket

  • An emergency application for injunction was denied on May 17th for National Association for Gun Rights v. City of Naperville. View case here


Several petitions have been made for the next conference, among them several cases with potential federalism implications, including:

  • Sauk-Suiattle Indian Tribe v. City of Seattle, Washington (22-955), Quad Graphics, Inc. v. N.C. Department of Revenue (22-890), Tingley v. Ferguson (22-942), Mazo v. Way (22-1033), Prime Insurance Company v. Wright (22-1006), and Frese v. Formella (22-939)

State Courts

As of May 28, 2023 state supreme courts have issued 2,754 opinions on issues such as horse breeding, gender/reproductive issues, crash injury liability, law enforcement, manufacturing, and speedy criminal prosecution rights. Track those cases here

As of May 28, 2023 state supreme courts have issued 2,754 opinions

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