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American Federalism: May Preview

April has been another interesting month for federalism policy. 11 items were added to the Federalism Policy Tracker on a range of issues from abortion drugs, federal land management of old growth forest, and new rules for Transgender student athletes.

The States

As of writing, there are currently more than 105,000 bills or pre-files for 2023 sessions across the 50 state legislatures. Over 2,400 of these are election related.

Of the 105,000 bills introduced or pre-filed for state 2023 sessions, 2,400 of these are election related.

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

  • Montana has become the first state in the US to approve a wholesale TikTok ban affecting almost all devices in the state. Governor Gianforte has hinted at expanding TikTok bans to include other social media platforms. Story here

  • Delaware became the 22nd state to legalize marijuana for recreational use. Story here

  • Abortion pill mifepristone is now banned or restricted in 13 states, despite a recent Supreme Court ruling. More here

  • Indiana lawmakers have joined other states in giving approval to Anti-ESG legislation. Story here

  • A number of states are facing legal challenges to their implementation of COVID-19 policies. The popular website Ballotpedia has published a list of lawsuits that are noteworthy and ongoing.

  • FutureEd has published a Legislative Tracker, identifying the more-than 60 parental-rights bills in 24 states. View the tracker here


There are at least 4,764 bills and resolutions before Congress. Of those bills, 66 bills and resolutions had a significant vote in one chamber, making them likely to pass.

There are at least 4,764 bills and resolutions before Congress. Of those bills, 66 bills and resolutions had a significant vote in one chamber, making them likely to pass.

By our estimate, that means that roughly 0.01% of all Congressional activity are considered likely to have further action in the next few weeks or months. Additionally there have been 115 passed resolutions during this congressional session. Among these resolutions and the bills more likely to pass (defined as more than 1%), here are a few with federalism implications:

  • H.R. 734, “Protection of Women and Girls in Sports Act of 2023” passed the House on April 20. This act would amend Title IX in athletics to state that “sex shall be recognized based solely on a person's reproductive biology and genetics at birth.” Read more here

  • H.J. Res. 7 was signed by the President on April 10th. This Resolution brings an end to the declared national emergency due to Covid-19. View resolution here

  • H.R. 1353 passed the house on April 26th. This bill would allow the Federal Communications Commission to “issue rules for the provision of emergency connectivity service, and for other purposes.” in previously unserved areas. View bill here

  • H.R. 2811, “Limit, Save, Grow Act of 2023” was introduced on April 25th. Among other things, this bill would increase the debt ceiling, repeal some energy tax credits, change requirements for SNAP, and nullify the cancellation of federal student loan debt. View the bill 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. 27, a congressional disapproval of EPA’s new WOTUS rule was vetoed, and the override attempt failed on April 18th. View resolution here

  • S. 326, “VA Medicinal Cannabis Research Act of 2023” failed cloture on April 26th. Read the bill here

  • S.J. Res. 4, a joint resolution on removing the deadline for the ratification of the Equal Rights Amendment, was added to the Senate floor’s schedule. More here

  • H.J. Res. 11, “Proposing an amendment to the Constitution of the United States to limit the number of terms that a Member of Congress may serve” was trending on More here


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 3 executive orders, 1 Memorandum, 3 Notices, and 20 Proclamations.

These orders may have significant federalism implications:

  • On April 26, President Biden signed an Executive Order on “Revitalizing Our Nation’s Commitment to Environmental Justice for All.” The order directs “each agency [to] make achieving environmental justice part of its mission.” EO here

  • On April 11, President Biden signed an Executive Order on “Modernizing Regulatory Review.” EO here

President Biden also made headlines in other areas:

  • On April 23, the Biden administration announced plans to create a new rule to protect over 175,000 square miles of old growth and mature forests on U.S. government land, an area larger than the state of California. More here and here

  • On April 20, President Biden announced the creation of an Office of Environmental Justice, laying out a plan to make environmental justice "the mission of every single executive agency." White House fact sheet here

  • As part of its energy and climate agenda, the Biden administration is reported to be moving forward with light bulb bans in coming weeks. More here

  • The U.S. Federal Reserve announced its plan to launch "FedNow," a centralized digital payment system that will become effective in July 2023. More here

  • On April 6, the U.S. Department of Education Office for Civil Rights (OCR) proposed new standards for clarifying participation of transgender students in school athletics. More here

The Courts

There were no fireworks at the Supreme Court this month, although there are a few cases to watch as May approaches.


  • The Supreme Court has unanimously held that New Jersey can unilaterally leave the Waterfront Commission Compact of 1953, despite the objections of the State of New York. This unanimous ruling applies principles of contract law to interstate compacts with no specific end date or withdrawal procedures. Recognizing that “a state does not easily cede its sovereignty,” states have the power to withdraw from such agreements at any time. Opinion here

Oral Arguments

  • On April 26, the Court heard arguments in Tyler v. Hennepin 22-166. The case considers whether taking and selling a home, while keeping the surplus value, violates the Fifth Amendment’s taking’s clause. Analysis from SCOTUSBlog


  • The court has granted certiorari in Culley v. Attorney General of Alabama (22-585), in which two women are challenging civil asset forfeiture laws - and whether they have a right to a “prompt hearing” after the state has seized their property. Analysis at Reason

Emergency Docket

  • Two birth control cases (Food and Drug Administration v. Alliance for Hippocratic Medicine, 22A902, and Danco Laboratories v. Alliance for Hippocratic Medicine, 22A901) were granted a stay during April, keeping mifepristone available while cases are ongoing. Summary at SCOTUSBlog

  • SCOTUS has upheld a 4th Circuit decision allowing transgender girls to continue competing in school sports and blocking enforcement of H.B. 3293. West Virginia v. B.P.J. (22A800). Analysis by SCOTUSBlog


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

  • Alexander v. S.C. State Conf. of the NAACP (22-807), Sauk-Suiattle Indian Tribe v. City of Seattle, Washington (22-955), Quad Graphics, Inc. v. N.C. Department of Revenue (22-890) and Tingley v. Ferguson (22-942)

State Courts

As of April 16, 2023 state supreme courts have issued 1883 opinions on issues such as horse breeding, crash injury liability, and speedy criminal prosecution rights. Track those cases here

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Johana Linford, Samuel Hill, Andy Bibby

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