American Federalism: November in Review
- Andrew Bibby
- 6 days ago
- 11 min read
In This Edition
Can the Federal Government preempt state laws regulating AI?
How the shooting in D.C. will impact the question over the administration's Federalization of the National Guard
Redistricting: why the Supreme Court may weigh, soon
Federalism Flashpoints
Thank you to everyone who has been following as we make updates. Each month we highlight a selection of the most important questions and controversies relating to states, federalism, and the the precarious federal-state balance. Our focus will continue to be on monitoring federal laws that have implications for the principles of federalism.
Record Shutdown
The U.S. federal government finally reopened after the longest shutdown in U.S. history. The shutdown has prompted a number of high-level discussions about the future, follies, strengths and weaknesses of the U.S. federal system.
The Federal Shutdown: The Broader State and Local View
Was the shutdown paradoxically good for the discussion of reviving American federalism?
Without attempting to resolve that question here, it can be argued - at the very least - that this kind of event does, once in a while, help perform a diagnostic function.
For those who fear that federalism is worsening inequality and deepening (not resolving) our partisan ills, the shutdown can be seen as an illustrative example of the weaknesses of fractured government. The shutdown, after all, affected different states unequally. States with larger federal workforces, major national parks or public lands, and those more dependent on federal or defense spending seemed to have been hit harder - worsening the impression that federalism is a driver of inequality, not a solution to it.
On the other side, the shutdown has also been viewed as a negative lesson in over-dependence on federal spending and national politics. The shutdown helped to expose, for example, how dependent states have become on federal funding streams. Gridlock, partisanship, and dysfunction at the national level might also be fairly interpreted as a warning sign - if Washington can't get it done, states need to be prepared to take up the slack. Some have gone further and suggested that the shutdown is proof that states need to be more aggressive in pushing for more fiscal autonomy and more capacity to handle their own affairs. Far from being a token of the failures of modern federal theory, the shutdown can also be used to strengthen the intellectual and political arguments for rebalancing the system.
Watch: Can Washington's shutdown revive federalism?
November in Review
Shutdown politics aside, November was eventful in a number of ways. Here, we cover new developments in AI "preemption," federalization of the national guard, and an update on redistricting and what to expect with upcoming Supreme Court decisions.
We start with the most explosive and potentially transformative development in the last few months, on the question of federal preemption of AI regulations at the state level.
On Wednesday November 19, a leaked memo was released, with a highly revealing title that indicates the administration's intentions to "Eliminate state law obstruction of National AI Policy."
Summary
If you have not seen the leaked draft, here is a quick overview.
First, the leaked draft proposes to establish a Department of Justice “AI Litigation Task Force” charged specifically with challenging state-level artificial intelligence regulations.
The Task Force would initiate litigation against states whose AI rules are deemed to “stifle innovation,” rely on “speculative risks,” or otherwise obstruct national AI priorities. The draft further authorizes the federal government to leverage funding -particularly broadband and BEAD-related grants -to pressure states that adopt what the administration defines as “restrictive” AI policies.
Finally, the order declares the need for a “minimally burdensome national standard” that would explicitly preempt divergent state AI laws.
The six page document then goes on to outline the need to promote economic security and dominance across various AI domains. Following on Executive Order 14179, the new draft order seeks to end the "paralyzing" barriers to American AI leadership.
Sources and Status
The text of the draft, dated November 19, 2025, was first brought to our attention through a Reuters report on November 20, which reviewed the document for authenticity. Here are a few quick facts:
To date, no White House official has denied its legitimacy.
Reports differ on the question of whether the draft is "paused" or whether it is still in progress, as part of a larger push to modernize America's AI infrastructure. Some accounts suggest the White House placed the draft on hold as of November 21, while others indicate that an updated order could still be announced soon
The full draft is accessible online and is now circulating through dozens of media outlets. Read the draft: https://ari.us/wp-content/uploads/2025/11/FILE_4783.pdf
Purpose and Framing
On its surface, the draft EO does not look menacing to states' interests or existing state laws on AI. Instead, the draft frames AI development as essential to maintaining U.S. economic and national security “dominance.” It argues - not unreasonably - that a rapidly expanding “patchwork” of state AI rules threatens that dominance by imposing complex or inconsistent regulatory burdens. As evidence, the document cites the introduction of “over 1,000 state AI bills” as evidence of regulatory overreach.
We note, however, that there are some questionable examples. This figure (1000 state AI bills) is technically accurate but also misleading. The vast majority of these bills have not been enacted. (A more precise picture can be found through the NCSL AI Legislation Tracker, which shows relatively few adopted or enacted state laws).
As examples, the draft singles out two states as especially problematic:
California, whose new disclosure and risk-reporting law (“SB 53") is described as burdensome and based on speculative catastrophic risk scenarios; and
Colorado, whose AI and algorithmic-bias statute imposes transparency and safeguards on high-risk AI systems.
According to the draft, these laws are a threat because they compel developers to alter outputs or disclose proprietary information in ways that may interfere with national innovation, and/or violate the First Amendment.
Mandate and Legal Strategy
How would the order be carried out? If implemented, the order would direct Attorney General Pam Bondi to establish an AI Litigation Task Force within 30 days. The Task Force would challenge state AI laws under several theories:
Commerce Clause and Dormant Commerce Clause, arguing that state rules impose "impermissible burdens" on interstate AI development;
Federal preemption and the Supremacy Clause, asserting federal authority over national AI policy;
First Amendment and related constitutional claims, including arguments against compelled disclosures or restrictions on “truthful outputs”; and
Other categories of “unlawful” state action.
Observers have noted the similarity between this legal strategy and a September white paper from Andreessen Horowitz, which argued that the Dormant Commerce Clause should function as a barrier to state-level AI restrictions.
Timeline
The draft order outlines the following implementation schedule:
Within 30 days: formal creation of the DOJ Task Force.
Within 90 days: a federal evaluation of state AI laws, focusing on statutes that allegedly require AI systems to alter “truthful outputs” or compel reporting that might violate First Amendment protections.
Within 90 days: potential funding restrictions, to be executed through the Secretary of Commerce, particularly by redirecting or withholding broadband and BEAD funds from states deemed non-compliant.
We should also note that this strategy is not entirely new. It mirrors earlier legislative proposals to condition BEAD and broadband funding on state acceptance of federal AI preemption. Readers will recall efforts by Sen. Ted Cruz in 2025 and later the push to insert similar provisions in the “One Big Beautiful Bill Act” and the NDAA. Those proposals ultimately failed (including a 99–1 vote against AI preemption in the Senate).
Going Forward
It is pretty clear that the draft EO is an attempt to achieve through executive action what Congress has declined to authorize. While it is true that some states such as California and Colorado have moved aggressively to regulate AI risks, it is also pretty clear that the draft EO represents a significant escalation in federal efforts to restrain state policymaking in a domain that is currently legally unsettled.
Conclusion: The "Genesis Mission"
As of writing on November 28, the EO appears to be on pause.
That does not mean dead.
The EO does seem to be part of a larger initiative, including President Trump's “Genesis Mission” EO to advance AI development.
Watch: Trump signs executive order launching Genesis Mission AI project
We will see, as the Genesis Mission goes forward, if the draft EO may become one of its principal regulatory pillars.
On November 26, 2025, two members of the West Virginia National Guard - one a 20-year-old Army Specialist, the other a 24-year-old Air Force Staff Sergeant -were shot in downtown Washington, D.C., just blocks from the White House.
Officials describe the incident as a targeted ambush: the gunman opened fire suddenly as the Guardsmen were on patrol near a metro station.
Leaving aside the political issues of federalization, the incident clearly has intensified scrutiny over the presence of National Guard troops in major U.S. Cities.
A federalization order, in this context, is a directive by which the President transfers state-controlled Guard units (ordinarily operating under Title 32 of the U.S. Code) to federal status under Title 10, thereby making them part of the active-duty armed forces under presidential command.
As one example of how this escalation may play out in practice, in response, the administration has announced plans to send an additional 500 Guard troops to the capital.
Legal Arguments
Proponents of Trump's deployment of federal troops appear to have a few strong arguments on their side. They argue that that the authority to call out the guard is rooted strictly in Article II’s Commander-in-Chief power and 10 U.S.C. § 12406, which allows the President to call the Guard into national service “to repel invasion” or “enforce the laws of the United States.”
Read: Explaining the two historical acts in the National Guard controversy
As further justification, the president has pointed to surging crime rates in affected cities, alongside the need to protect federal buildings and federal officials involved in immigration enforcement. As one example, attorneys arguing in defense of President Trump's actions before the United States Court of Appeals for the Ninth Circuit have argued that the condition of "rebellion" applies in Portland. They contend that in cases of national emergency, state consent is not required, and that unified command ensures efficiency, discipline, and national security.
Challenges
Critics of the administration's use of executive power have pointed out that the power to federalize the guard is not a blank check. They point back to the Posse Comitatus Act, which when created, outlawed the "willful use" of any part of the Army or Air force as a "posse comitatus" to execute the law - unless expressly authorized by either the Constitution or an Act of Congress.
Critics further argue that the routine use of the National Guard could represent a dangerous expansion of executive power- one that blurs the constitutional boundary between state militias and federal armed forces. Other skeptics and opponents have argued that the Constitution does not, in fact, grant the president authority to call military troops into domestic federal service (pointing instead to Congress' power to "call forth the Militia to execute the laws of the union, suppress Insurrections and repel Invasions.") They believe that Congress should issue the call first, and only then would the president have the authority to command the troops under Article 2.
Still others have argued that federalization violates the Tenth Amendment and the Militia Clauses (Art. I, § 8, cls. 15–16), which reserve substantial authority to the states over their Guard units except in narrowly defined circumstances.
Updates:
Where this goes next could depend on a number of factors. A lot will depend on the context, and exactly how the federalization orders have been carried out state by state.
On November 20, deployment in Washington, D.C. was ruled to be "unlawful" according to a district court ruling. Enforcement of the D.C. ruling is delayed until December 11.
Deployment in Los Angeles is currently proscribed, after an injunction that blocks further Guard deployment, pending appeal.
The Oregon National Guard remains under federal control following appeals court order
Deployment in Chicago is also temporarily blocked, although the administration petitioned the Supreme Court to overturn the ruling.
Another open question is whether public opinion may evolve as tensions escalate between governors, mayors, and administration officials. A recent poll shows that 38% of Americans support deploying National Guard troops to a major city for law enforcement efforts.
It remains to be seen how the tragic shooting will affect Americans' opinion of the use of military force in domestic policing contexts.
Conclusion
Is this going to the Supreme Court? The answer continues to be...a strong "maybe." The Supreme Court asked for more information on the federalization issue in late October, and gave challengers as well as Trump's Justice Department until November 10 to file written briefs.
As we mentioned in the last newsletter, it seems unlikely that SCOTUS will decline. If they did, a patchwork of lower-court rulings would stand for some time, with deployment blocked or restricted in some places, while not in others.
As trials proceed and appeals unfold across multiple states, it is worth insisting that -quite apart from the constitutional questions-the deployment and federalization of the National Guard ought not become routine. The President's authority to call out the Guard is significant, but it is not a blank check.
Further Reading
Explaining the two historical acts in the National Guard controversy
Trump's National Guard deployments raise worries about state sovereignty
The president's power to deploy troops domestically: an explainer
D.C Ambush exposes risks for National Guard on Capital's Crime Patrols
Finally on redistricting, a question on many Americans' minds: is the Supreme Court poised to weigh in on partisan gerrymandering? And if so, could the decision reshape the next 3 election cycles?
The answer is that this seems more likely every day- especially now that the Supreme Court is set to rule on Texas's controversial congressional map. As of writing, a decision on Texas' redistricting controversy is likely before December 8, the filing deadline for candidates in Texas.
Background
In June 2025, the administration floated a plan for a mid-decade redistricting in Texas. Greg Abbot called a special session with a plan that would ostensibly add five republican seats.
Read more: Explainer: Understanding the mid-decade redistricting push in Texas
The Controversy
The redistricting controversy matters for politics for obvious reasons. But it also takes on special significance for American federalism because it sits right at the intersection of state power over elections and federal constitutional oversight. Unlike many other gerrymandering controversies, the Texas case forces the country to think about a foundational question: Who ultimately controls how state maps are drawn and redrawn - and what role does the Federal government play in overseeing this process?
Federalism scholars Wesley Leckrone and Joseph Marbach identify three important areas that remain controversial even today.
Reapportionment: after each census, districts must be drawn equally so that each person's vote counts. There is some debate, however, over whether to count all individuals - including prisoners - or only eligible voters excluding prisoners and those unable to vote.
Racial Gerrymandering: Section 2 of the Voting Rights Act of 1965 prohibits the creation of maps that discriminate by race. Some debates remains on whether states using race-neutral approaches to redistricting count as discrimination.
Political Gerrymandering: currently SCOTUS has no standards relating to political gerrymandering.
Read more: Controversies in Redistricting: Apportionment and Gerrymandering in America's Federal System
Why this might go to the Supreme Court
Supporters of Texas’s plan argue that the redrawn map (enacted in 2025 at the urging of the former president and state Republican leadership) represents a legitimate exercise of state legislative authority over congressional districts. They contend that the plan should survive because, in general, courts are expected to respect state legislatures’ primacy in election law. That respect matters even more, especially so close to an election.
In Purcell v. Gonzalez the court ruled that last-minute changes could risk confusing voters - making it harder for officials to administer elections. Under this principle, federal courts are urged to avoid making last-minute changes to election rules once the bureaucratic machinery has begun, to avoid chaos or voter confusion.
Critics argue, on the other hand, that there is enough substantial evidence that the 2025 map amounts to unlawful racial gerrymandering - a violation of the Equal Protection Clause and the protections of the Voting Rights Act of 1965.
Update:
In November, the state of Texas filed an emergency petition to the Court after a three-judge federal panel blocked its 2025 map for likely racial gerrymandering.
The Court - through Justice Samuel Alito - has granted a temporary stay, allowing Texas to use the map for now while the Court decides whether to accept full review.
Conclusion
Will the Supreme Court weigh in?
The Court could act at any time. Doing nothing, of course, is an action in itself. As one legal scholar has put it:
"At this point, it doesn't really matter [if the Court does nothing] because it's as if the order of the federal court in El Paso doesn't exist...Unless and until the Supreme Court does something different, either by way of confirming Justice Alito's stay or by way of deciding the case, the stay is in effect. And so, as things sit right now, the districts that were carved up by the legislature in special session this summer are the districts that people will run in. The ball is now squarely in the Supreme Court's corner for them to decide what to do."
The ball is now squarely in the Supreme Court's corner for them to decide what to do.
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