If you follow national politics, the "month of love"was anything but. Instead of the hoped-for bipartisanship from DC, we saw both parties digging in for a long year of gridlock, and some Congressional leaders even calling openly for a "National Divorce."
What can we expect in March?
In February, the Federalism Index Project added more than 20 policy items to the Federalism Policy Tracker. If these policies are any indication, March will be an interesting month, with major policies and court decisions expected across a range of topics from police reform, to internet regulation, and student loan forgiveness.
As of writing, there are currently more than 80,000 bills or pre-files for 2023 sessions across the 50 state legislatures. Unlike Congress, state legislatures are passing and signing bills at a fever pace - in part because there are relatively few divided legislatures. Currently there are 22 states in total Republican control. 17 states are in total Democrat control. Only 10 states are considered "divided states" (NCSL).
Unlike Congress, state legislatures are passing and signing bills at a fever pace - in part because there are relatively few divided legislatures.
It is not clear whether the current winner-take-all state legislature map is a good thing. What is clear is that states are acting, when Congress is not. Here are just a few of the policies attracting attention in the last few weeks:
As expected, legislative battles continue across the 50 state houses on abortion, post-Dobbs.
House Republicans in Virginia rejected efforts to force a vote on a constitutional amendment that would enshrine abortion rights in law. Story here
Montana legislators advanced legislation that would increase restrictions on abortion. Story here
Texas is suing the Biden administration in response to an executive order that requires pharmacies to supply abortifacients. Story here
Meanwhile, recent polls suggest that abortion could play an increasingly important role in the 2024 presidential election.
New Hampshire legislators have made progress on a bill that would prohibit the deployment of the New Hampshire National Guard absent a declaration of war by Congress. More here
In South Carolina, the legislature has introduced a bill to express “unwavering support” for the Electoral College, and to “urge the Governor and AG of South Carolina to litigate aggressively against any effort to repeal or nullify it, including the national popular vote interstate compact.” Bill here
As of the first day of March, there were 2,001 bills and resolutions before Congress (Govtrack.us). Only 33 bills and resolutions had a significant vote in one chamber. That means that roughly 0.02% of all Congressional activity are considered likely to have further action in the next few weeks or months.
While few bills have any hope of moving forward, here is a sample of laws with federal implications that were introduced in the month of February:
On February 9, a one sentence bill was introduced to “terminate the Department of Education.” Bill here
In late January, legislation was introduced to “Abolish the ATF.” More here
On February 14, Housing and Urban Development (HUD) passed a new rule that would require program participants to submit an “Equity Plan” to HUD every five years, in order to be eligible for future funding. More here
On February 10, the new House panel on “the Weaponization of the Federal Government” convened for its first hearing. The subcommittee report is not due until 2025.
January-February has been a snoozy start, although things may be heating up, with important cases that have significant implications for states and local governments.
The Supreme Court heard over three hours of oral arguments on Feb 28 on the combined cases of Biden v. Nebraska and Department of Education v. Brown to determine the fate of President Biden’s $400 billion student loan forgiveness program. The outcome of this case will not only affect student loan borrowers but may also affect “when and how states can go to court to challenge federal policies.” Analysis at SCOTUSblog.
The Supreme Court has agreed to a hearing on the constitutionality of the funding mechanism for the Consumer Financial Protection Bureau (CFPB), after the Biden administration requested clarification of the appropriations and non-delegation principles in the 5th Circuit’s decision CFPB v. Consumer Financial Services Association of America (22-448). Arguments are scheduled for the October 2023 Session.
The Supreme Court issued a unanimous opinion today in Delaware v. Pennsylvania and Wisconsin (22O145) finding that hundreds of millions of dollars in unclaimed money orders rightly belong to the state where they were purchased. Read the opinion here
Title 42 of the Public Health Services Act is no longer being used to keep migrants out over COVID concerns, but nineteen states are seeking standing to sue the Department of Homeland Security to keep the mechanism in place as “makeshift immigration policy”. Oral arguments for Arizona v. Mayorkas (22-592) are expected during the March session.
Texas is suing the U.S. Department of Health and Human Services to block the Biden administration from penalizing pharmacists and pharmacies that refuse to provide abortifacients in states that have banned their use. This is one of many state-level actions in response to the Dobbs decision. Texas v. Becerra
The President / Executive Branch
There have been relatively few executive actions this year so far, relative to other years. In February there was: 1 Executive Order, 1 Determination, 3 Memorandums, 5 Notices, and 4 Proclamations issued by the President of the United States. The total number of Presidential Documents is 14, up from 12 in January 2023 (Federalregister.gov)
EO 14091 was issued on February 16, titled “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” The order lays a basis for a “multigenerational commitment” to advance equity through all agencies across the Federal Government. The “whole-of government approach” to racial equity promises to “embed equity” into “all aspects of Federal decision-making.”
On February 10, President Biden signed a Notice titled “Continuation of the National Emergency Concerning Coronavirus Disease Pandemic.” The Notice continues the national emergency declared on March 13, 2020, but also makes plans for “an end to the national emergency.” The Notice anticipates a termination of the COVID-19 national emergency on May 11, 2023.
On February 28, the Biden administration announced new funding and subsidies for semiconductor manufacturers, although in exchange for promises to ensure affordable child care for their workers, to limit stock buybacks, and other requirements. Story here
On the day of writing (March 1), there were 8 proposed rules, 11 final regulations, 85 agency notices, and 5 significant documents published - adding 262 pages to the Federal Register. (Federalregister.gov; see also @RegoftheDay) The Federal Register Index now sits at 6,608 pages.
Of those, 36 rules are classified as having “Federalism Implications” (Reginfo.gov).
In mid-February, 24 Republican-led states joined together in a lawsuit against the Biden administration, claiming that the new “Waters of the United States” rule violates the U.S. Constitution and creates “regulatory chaos” for states. The lawsuit aims at preventing the new rule from taking effect this March. Story here