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American Federalism: November preview

45 policies have been added to the Policy Tracker in a range of areas including student loan forgiveness, voting rights, and pork production. With midterm elections only days away, it seems likely that Americans will be paying closer attention to major rules, regulations, and decisions that affect states and local government.

Here are a few of the policies and cases we will be watching over the next 30 days:

  • Recently, the Supreme Court heard oral arguments in National Pork Producers v. Ross. On October 21, the National Constitution Center released a podcast on "Pork, the Dormant Commerce Clause, and Legislating Morality," which provides an excellent discussion of the road ahead for the Interstate Commerce Clause.

  • On October 26, President Biden pressed the White House's initiative on "Junk Fees and Related Pricing Practices." Businesses affected by the initiative will be watching for upcoming FTC announcements on "advance notice of proposed rules" (ANPRs).

  • Last week, President Biden predicted that student loan borrowers will start receiving relief checks "within the next two weeks." Biden's promise is overshadowed by a federal appeals court ruling that halted the loan forgiveness program a week earlier. That decision prevents the administration from disbursing checks to borrowers while the 8th Circuit Court of Appeals considers the injunction request. While Biden's promise indicates a decision within two weeks, a full consideration of the appeal could take months.

  • Last week, the U.S. Securities and Exchange Commission announced a delay in the implementation of a major rule on ESG-related disclosures. The comment period for its proposed ESG disclosure rules remain open until November 1.

  • Republican lawmakers introduced the "Safeguarding Investment Options for Retirement Act" (H.R. 919) on October 20. The bill intends to amend the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code of 1986 to "limit fiduciary consideration of non-pecuniary factors in investment decision-making." While the bill may not be acted on this year, it does set the stage for a shift in congressional priorities if Republicans regain control of the House after the midterm.

  • The Supreme Court is set to hear arguments in Axon Enterprise, Inc. v. Federal Trade Commission on November 7. The case involves the jurisdiction of federal courts over constitutional challenges to the structure of the Federal Trade Commission (FTC).

  • The Supreme Court is set to hear arguments in Mallory v. Norfolk Southern Railway Co., on November 8. At issue is whether the due process clause of the 14th Amendment prohibits "a state from requiring a corporation to consent to personal jurisdiction to do business in the state."

  • Public criticism of the "Independent State Legislature" theory (ISL) is growing, as the Supreme Court prepares to hear arguments in Moore v. Harper, scheduled for December 7. A wave of criticism of ISL theory, from an ideologically diverse set of historians and legal scholars, cast the legal fate of ISL theory in some doubt.

  • The Department of Labor is poised to release a final regulation on "Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights." The regulatory agenda indicates a December 22 date for the release of the final rule.

  • Recently, the 5th U.S. Circuit Court of Appeals invalidated a regulation written by the Consumer Financial Protection Bureau. A three judge panel also concluded that the agency's funding was unconstitutional because it violated the Appropriation's Clause and separation of powers doctrine.

  • A legal battle over state regulation of social media is also clearly on the horizon. On September 21, The Supreme Court was asked by the State of Florida to review a US Court of Appeals decision that blocked a Florida law aimed at preventing social media platforms from suspending accounts of elected leaders. Because of these conflicting court rulings, the Supreme Court may now be in a position to review social media laws in the states of Texas and Florida.

Missing a policy? Please let us know if you would like us to add any topic to the list. If you found this helpful, please share this post and add us to your bookmarks for monthly updates on the American Federalism policy world.

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