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American Federalism: May in Review

"The maintenance of federalism involves 'thinking federal', that is, being oriented toward the ideals and norms of republicanism, constitutionalism, and power sharing that are essential to the federal way"

 -Daniel Elazar, Exploring Federalism (1987)


May was another significant month for federalism policy. A number of new items have been added to the Federal Policy Tracker on a range of topics, from carbon emissions to ranked-choice voting and new changes to Title IX.



Federalism in Focus


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


  1. Executive Order on the Border: After an immense amount of political pressure, President Biden may be finalizing plans to sign an executive order on immigration. Initial reports suggest that Biden will be pausing asylum requests and denying entrance to migrants after the number of people crossing the border reach a certain "daily threshold"

  2. EPA Carbon Rule: Attorneys General from at least 27 states filed a lawsuit against the EPA, seeking to block a major rule requiring reductions in carbon emissions from coal-fired power plants and new natural gas plants. Read the final rule here

  3. Federal Title IX Rule: The Biden administration finalized a set of changes to Title IX in April, adding new criteria that would expand the definition of sex and gender. Changes take effect in August. At least 24 states including Missouri, Iowa, Nebraska, North Dakota, and South Dakota have filed lawsuits challenging the new rule. The final rule is available here

  4. Relentless v. Department of Commerce: The Supreme Court may rule on whether "Chevron" should be overruled. Overruling the so-called Chevron doctrine would significantly alter the balance of power between the judiciary and the administrative agencies. A decision is expected in June. View the case here


State Roundup


The states are often called "the first branch of government." While state politics typically receive less attention in the study of US Government, they remain vital to maintaining the overall balance of power in the American federal system.


Contrary to some visions of the American government that focus only on the high-stakes battles in DC, or in the national courts, the states continue to carry out most of the important functions in our lives, from education to healthcare to welfare and crime.


As of writing, there are currently more than 127,000 bills or pre-files across the 50 state legislatures. 17 states are currently in session, 4 states have no regular session this year, and 29 states are adjourned.


The States and Federalism


Some readers may be surprised to learn that there are no organized or systematic attempts to track legislation across the states that have implications for Federalism. The Federalism State Policy Tracker is our attempt to correct this oversight.


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


  • Energy Policy Lawsuit: 19 states have filed a Bill of Complaint against 5 other states (California, Connecticut, Minnesota, New Jersey, and Rhode Island), citing federalism concerns and "junk science." They argue that these blue state governments have used "unprecedented litigation" against a number of vital energy companies, thus potentially harming the production and consumption of energy in other states. View the lawsuit here

  • State Abortion Bans: 21 states have banned abortion or restricted the procedure earlier in pregnancy than the standard set by Roe v. Wade, according to a report by the New York Times. Read the article here

  • Same-Sex Marriage Bans: Colorado became the third state this year to decide in the November elections whether or not to remove same-sex marriage bans from their state constitution. Learn more here

  • Ranked Choice Voting: Ranked choice voting is an alternative voting system that allows voters to rank multiple candidates on the ballot. So far this year, 74 pro-RCV bills have been introduced in state legislatures. At least 8 states this year have passed laws or have ballot measures involving the use of ranked-choice voting. See the chart below for a breakdown of RCV laws and usage by state.





For more on each of these actions, see our "State Policy Tracker."


Congress


Congress plays an important role in respecting the autonomy of state governments within their spheres of authority. As Federalism scholar Martha Derthick has noted, Congress "both embodies federalism and influences how federalism is put into practice."



Given that most Americans associate Congress with gridlock, readers might be surprised to learn that Congress is active - the lack of legislation is not for lack of trying!


Today there are at least 15,303 bills and resolutions currently before Congress.


Of those bills and resolutions, 464 had a significant vote in one chamber, giving them a "greater than zero" probability of passing. By our estimate, that means that roughly 3% of all Congressional activity is considered likely to have further action in the upcoming weeks or months.


13 bills were enacted during May which is up from April's count of 5.


This brings the current total of enacted bills to 228 for this session, compared to 1,234 last session.


Federalism Implications


Among the resolutions and bills more likely to pass (with more than a zero percent chance of becoming law), here are a few with federalism implications:


  • H.R.354: The LEOSA Reform Act of 2024 would permit certain state officers to carry concealed firearms and ammunition across state lines and in "school zones; in national parks; on state, local, or private property that is open to the public; and in certain federal facilities that are open to the public."

  • SB 4292: The SAVE Act would amend the National Voter Registration Act of 1993 to require proof of citizenship to register to vote in elections for federal office.

  • H.R. 8146: The Police Our Border Act would require the Attorney General to report on "the impact the border crisis is having on law enforcement at the Federal, State, local, and Tribal level."

  • H.R.8372: The Debt Per Taxpayer Information Act would "provide each American filing a tax return with information on their W-2 about federal revenues, outlays, and deficit in the latest available tax year, the total gross debt, and the estimated debt per taxpayer."


Executive


This last month, President Biden issued 0 executive orders, 1 determination, 2 memorandums, 6 notices, and 32 proclamations. President Biden is likely to pass an Executive Order on immigration around June 4.


For information on executive orders over time, see our "Executive Orders" primer.


Agencies


As of May 24th, there are 46,014 pages in 2024's Federal Register with an average of 2,191 pages added each week. Contributing to that total are 740 proposed rules and 1,265 final rules. Additionally, there are 111 pending actions across various agencies.


Here are the agencies with the most "regulatory actions" currently under review:


Some proposed and final rules that have been issued over the past month include:


  • Minimum Staffing Standards for Long-Term Care Facilities: In addition to establishing minimum staffing requirements, this final rule would also require states "to report the percent of Medicaid payments for certain Medicaid-covered institutional services that are spent on compensation for direct care workers and support staff." Read the final rule here

  • Marijuana Reclassification: The U.S. Drug Enforcement Administration is taking action to reclassify marijuana from Schedule I to Schedule III under the Controlled Substances Act. View the proposed rule here


For more on regulations and how they affect American federalism, see our Regulations primer here


Judiciary



The U.S. Supreme Court heard 0 cases in May, with 9 scheduled for the October 2024 term. They also released decisions on 8 cases. Of these, those with federalism implications include:


  • Alexander v. South Carolina State Conference of the NAACP: The case dealt with "how courts should distinguish between the roles played in redistricting by race and party affiliation." The decision overturned the federal district court's ruling and allowed the map to be used in the upcoming election. Read the decision here and an analysis here. Similarly, in an unsigned order citing the Purcell principle, the Court blocked another order allowing Louisiana to use its congressional map for this election while the appeal to the Supreme Court moves forward. Learn more here

  • Brown v. United States: Taking into account discrepancies between state and federal law, the judges were tasked with deciding whether a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of conviction. Read the decision here and an analysis here

  • Smith v. Spizziri: Dealing with the question of available options to trial courts when a case is sent to arbitration, the unanimous decision was that "the court lacks discretion to dismiss the suit." Read the decision here and an analysis here


Keep track of which cases have already been decided here and stay tuned for more on these decisions as we move into June.


State supreme courts have issued over 3,491 opinions so far in 2024. These cases cover a variety of topics including:



 

What kinds of issues matter to you most? What policies are you watching in your state? What did we miss? Let us know by following us on X, Instagram, or Facebook or by using the "Let's Chat" button on the bottom right of your screen!


Authors: Andrew Bibby and Johana Linford


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