American Federalism: October in Review

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In October, federalism issues dominated a number of headlines, from elections to sanctuary cities and environmental law. Of note, the United States Supreme Court commenced its 2026-27 term on Monday, October 5, setting up what some consider to be an expansive docket of upcoming federalism showdowns over climate torts, state election mechanics, tribal sovereignty, local gun regulations, and the limits of executive power.

Read more on the 34 cases the court has agreed to hear during its 2026-27 term.

AT A GLANCE

Elections and Democratic Governance: Federal courts continued to push back on executive-branch "interventions" ahead of the midterms—freezing DHS door-to-door citizenship probes across nine states. The case of Alaska’s "Two Dan Sullivans" could have implications beyond the contest in Alaska, setting up questions over how far the federal government can intervene to block a state from certifying its election results.
Federal Law Enforcement and Local Authority: A federal judge invoked the Tenth Amendment's anti-commandeering doctrine to dismiss a challenge to New York City’s sanctuary policies, while the DOJ filed suit to overturn Denver’s local ban on tactical masks and unbadged federal agents.
Environmental and Energy Federalism: The Supreme Court heard oral arguments in Suncor Energy v. Boulder County to decide if federal law preempts municipal climate torts, as the DOJ moved to strip habitat destruction from the Endangered Species Act’s definition of "harm."
Federal Spending and Administrative Power: Seven states sued the White House over an $810 million end-of-year "pocket rescission," while a federal judge blocked the USDA from reprogramming congressionally appropriated funds to shutter regional offices and relocate staff.
Constitutional Federalism and the Courts: The Ninth Circuit ruled in Newsom v. Trump that urban protests do not constitute a "rebellion" authorizing the unilateral federalization of California’s National Guard, as a federal judge enjoined Utah's attempt to enforce age-verification mandates against encrypted VPN traffic.
Thinking About Federalism: October scholarship and academic gatherings examined how federal republics manage hyper-polarization, cross-sovereign law enforcement task forces, and state-level AI regulation. A newly released 2026 Federalism Scorecard was published evaluating state fiscal autonomy.

⚠️ indicates a contested action, policy, or significant federalism dispute.

Elections and Democratic Governance

⚠️ As the midterms draw near, federal and state officials continued to clash over the administration of elections. On October 22, the Justice Department filed a lawsuit seeking to prevent Alaska from certifying a Senate election under specified circumstances involving potentially confusing candidate names - the now notorious "Two Dan Sullivans." Under Alaska’s top-four nonpartisan primary and ranked-choice voting system, all candidates run on a single primary ballot regardless of party. In the August primary, both the incumbent senator and Daniel J. Sullivan finished among the top qualifiers, advancing them both to the four-candidate general election. Republicans filed legal challenges attempting to remove Daniel J. Sullivan Jr. from the ballot, but the Alaska Supreme Court declined to disqualify him.

What to watch: the federal lawsuit seeks to block the certification if Senator Dan Sullivan loses by a narrow margin. The case raises questions about the extent to which federal officials can intervene in state election certification and administration. It's not clear how or whether there will be a legitimate "federalism" defense. State attorneys and counsel will argue that under the U.S. Constitution's Elections Clause, candidate qualification and election administration are strictly state matters, while others are skeptical of whether this will protect the defendants from federal subpoenas. A broad question is raised in this case with long-term implications: does the federal executive have statutory authority to police ballot confusion and halt state certification, or is it usurping both Congress's legislative power and the state's administrative role?

⚠️ Earlier this year, the Department of Homeland Security (DHS) and federal law enforcement agencies launched an initiative aimed at identifying noncitizens registered to vote across multiple states. In mid-July, federal officials sent a letter to California election authorities claiming that over 190,000 registered voters in the state were suspected noncitizens. In the first week of October, federal agents began conducting field visits and door-to-door inquiries at the residences of registered voters across nine states (including California, Nevada, Pennsylvania, and Georgia) to investigate citizenship status. From October 7-10, Civil rights groups and local governments filed emergency lawsuits in federal court challenging the field operations. Around October 12, a federal judge issued a temporary restraining order halting unannounced home visits and door-knocking operations by federal agents regarding voter eligibility through Election Day. The 9th U.S. Circuit Court of Appeals declined emergency administrative stays, keeping the freeze on field operations in place. Later, on October 19, Federal prosecutors announced criminal election charges against 28 individuals in California identified from a previous 20,000-name list, formally requesting an emergency restraining order to halt the counting of ballots tied to the list. As of writing, the U.S. District Judge has denied the federal government's emergency request, ruling that forcing local election offices to set aside ballots while voting is actively underway would disrupt election administration, violate federalism principles, and risk disenfranchising naturalized U.S. citizens.

What to watch: On October 30, the 9th Circuit upheld court-ordered restrictions barring federal agents conducting door-to-door voter eligibility investigations across nine states through Election Day, finding the last-minute enforcement surge threatened lawful voters with intimidation. It will be interesting to see how, or whether, these cases will end up placing federal voting-rights enforcement and investigative authority alongside states' traditional responsibilities for voter registration and election administration.

On October 21, the top two Democrats in Congress—Chuck Schumer and Hakeem Jeffries—filed a sweeping federal lawsuit (or rather a counter lawsuit) in Washington, D.C., directly against President Donald Trump, Attorney General Todd Blanche, and DHS Secretary Markwayne Mullin. The suit accused the administration of mounting an unconstitutional, nationwide campaign to intimidate voters and usurp state control of elections via DHS door-to-door probes and voter-purge ultimatums in violation of the National Voter Registration Act's 90-day quiet period.

What to Watch: Chief Judge James Boasberg ordered the administration to immediately reveal which state and local election officials had been targeted with federal letters. It is unclear whether congressional leaders will be able to argue, successfully, on standing. We have to wait and see how, or whether, there will be any emergency injunctive relief, and beyond that, whether there might be an emergency appeal to the D.C. Circuit and Supreme Court.

Federal Law Enforcement and Local Authority

⚠️ Earlier this year, the Department of Justice sought to invalidate local New York City laws that restrict municipal agencies and police from detaining individuals solely on immigration detainers or sharing custody information and release dates with U.S. Immigration and Customs Enforcement (ICE). Prosecutors argued these policies obstructed federal enforcement and violated the Constitution's Supremacy Clause. On October 15, a federal judge dismissed the Trump administration's lawsuit challenging New York City's sanctuary policies, arguing that the DOJ lacks standing. In the ruling, the judge argued that independent New York state laws already bar local police from holding individuals exclusively on civil immigration detainers. In an interesting move, Judge Reyes invoked the anti-commandeering doctrine under the Tenth Amendment. The court emphasized that the federal government cannot conscript local officials or commandeer municipal resources to execute federal enforcement programs, leaving the city in legal control of its own personnel and facilities.

What to Watch: The legal and political battles over "sanctuary" laws have become central to modern constitutional federalism, and so, are obviously worth watching. So far this year, federal direct challenges, like the one above, have had a low jurisdictional win rate. In general, courts have held that simply refusing to dedicate state jail cells, police officer hours, or notification systems to federal civil deportation operations is a valid exercise of sovereign non-cooperation under the anti-commandeering doctrine, not federal obstruction. The federal government has succeeded on narrower grounds, as in the case of state laws attempting to restrict federal inspection of facilities directly. The federal government has also repeatedly failed to "defund" sanctuary jurisdictions by withholding grants or homeland security funding. Federal courts have also repeatedly held that ICE administrative detainers are not a judicial warrant. Where sanctuary city policies seem most vulnerable are in cases when they are challenged by their own state legislatures. As of writing, at least 12 states have passed statewide bans on local sanctuary policies.

On October 8, the Justice Department sued Denver over ordinances restricting when federal law-enforcement officers may wear masks and requiring them to display identification. DOJ argues that the measures violate the Supremacy Clause by regulating federal officers and interfering with federal operations. As the DOJ stated upon filing, states and localities lack the constitutional authority to dictate the operational tactics, protective gear, uniforms, or identification methods of federal officers carrying out their statutory duties under federal law. City officials and immigrant-rights advocates backed the rule to prevent voter and resident intimidation, protect public safety, and ensure transparency. Local leaders argued that unidentifiable, masked agents conducting enforcement sweeps created widespread fear because residents could not tell whether they were interacting with legitimate law enforcement officers or armed vigilantes:

"Denverites deserve to know who is arresting them and what they’re being arrested for. This is about basic transparency and accountability, and we believe our ordinance is both commonsense and constitutional." - Jon Ewing, Spokesman for Denver Mayor Mike Johnston

What to Watch: The DOJ's Civil Division is seeking a preliminary injunction to halt Denver from enforcing the mask ban (D.R.M.C. §§ 28-300–28-303) and its identification requirements against federal agents while the lawsuit proceeds. A similar rule was struck down in other states, including California, Virginia, Philadelphia, and New York. Watch for the case to make its way to the 10th U.S. Circuit Court of Appeals.

Environmental and Energy Federalism

⚠️ In October, states continued to challenge federal environmental policy while courts addressed the limits of state regulatory authority. On October 8, the Justice Department defended the administration's rollback of Endangered Species Act regulatory definitions in four cases, arguing that the revised rules reflect the statute's intended scope. State governments and environmental advocates are challenging the changes, including on statutory and administrative-law grounds.

What to watch: the core conflict rests on the definition of "harm," i.e., whether destroying an endangered animal's habitat counts as breaking the law if the animal itself is not directly touched. This will be complicated to sort out, as there are currently a number of parallel lawsuits in at least three federal district courts. Legal experts have noted that some of these cases span both the Ninth Circuit (possibly more protective of environmental regulations) and the Fourth Circuit, setting up a possible split, which could then land back at the Supreme Court. If that happens, the Court would likely decide whether to overturn Babbitt v. Sweet Home, the older understanding of harm. The larger federalism question is whether individual states get to decide how to manage local wildlife, land use, and zoning within their borders.

⚠️ On October 1, New York and a coalition of states and local governments sued over the EPA's repeal of federal greenhouse-gas emissions standards for coal and natural-gas-fired power plants. The litigation concerns federal environmental obligations and the states' interests in controlling pollution that crosses jurisdictional boundaries.

Meanwhile, Arizona joined a lawsuit concerning the federal government's proposed Colorado River water-allocation framework, challenging proposed reductions affecting southwestern states.

On October 5, the U.S. Supreme Court heard oral arguments in Suncor Energy v. County Commissioners of Boulder County, No. 25-170.

What to watch: The U.S. Supreme Court heard oral arguments in Suncor Energy v. Boulder County, which some say is a landmark federalism contest. The case centers on a lawsuit from 2018 in which Boulder County and the City of Boulder sued fossil fuel companies, including Suncor Energy and ExxonMobil, in Colorado state court. Boulder brought claims under state common law—including public nuisance, private nuisance, trespass, unjust enrichment, civil conspiracy, and deceptive trade practices. Boulder asserted that the energy companies knew for decades that producing and selling fossil fuels drove catastrophic climate change, actively misled the public about those dangers, and worsened local impacts like wildfires, droughts, floods, and infrastructure decay. The city asked for monetary damages. In response, the energy companies moved to throw out the lawsuit, arguing that state courts and local tort law have no authority over global climate change. They contend that letting 50 individual state courts impose billions of dollars in tort damages on energy producers creates a chaotic patchwork of de facto emissions regulations that intrudes on the federal government's authority over interstate commerce, energy security, and foreign affairs. In May, the Colorado Supreme Court let the suit go through to advance to trial, and then in October, the U.S. Supreme Court granted cert to "definitively resolve" whether federal law precludes state-law climate torts. The case is worth watching as there are, by some counts, more than 30 similar lawsuits brought by states and major cities currently advancing nationwide. Commentators agree that the stakes could be high. If the Supreme Court rules for the energy companies, that could shut down almost all state-level climate accountability lawsuits across the country, arguably, a blow for federalism. If the Court rules for Boulder, on the other hand, energy giants will face full evidentiary trials and potentially billions of dollars in liability across multiple state jurisdictions.

Federal Spending and Administrative Power

⚠️ On October 1, California and six other states sued the Trump administration over its attempt to withhold approximately $810 million in congressionally approved funds through a pocket rescission. [A "pocket rescission" is an executive branch maneuver where the President uses statutory timing loopholes to cancel congressionally appropriated money without Congress ever voting to approve the cut]. The states argue that the withholding violates federal spending law and constitutional limits on executive authority, raising questions about the president's discretion over appropriations that Congress has authorized.

"OMB is an agency of the executive branch. It does not get to decide which programs are worth funding when Congress has enacted bipartisan appropriations into law." - U.S. Senator Susan Collins (R-ME)

What to watch: the states are seeking a Declaratory Judgment, an explicit ruling that "pocket rescissions" and unilateral end-of-fiscal-year budget pauses violate the Impoundment Control Act and the Constitution.

On October 14, a federal judge blocked a planned USDA reorganization, which would involve shuttering regional offices and relocating civil service employees outside their commuting areas. In the ruling, the judge argued that the department had redirected congressionally appropriated funds without authorization. The case addresses the limits of executive discretion to reorganize agencies and redirect funds without congressional approval.

The 2026 Federalism Scorecard has been released. The 2026 Federalism Scorecard assessed how states oversee federal grants, review agency regulations, and prepare for potential reductions in federal funding. Users can now compare results from 2026 with 2025. Its findings offer a comparative framework for understanding how states manage fiscal dependence on the federal government.

Constitutional Federalism and the Courts

⚠️ On October 23, the Ninth Circuit issued a decision in Newsom v. Trump concerning the federalization of California National Guard troops, finding that the administration had not established the statutory prerequisites for federalization under 10 U.S.C. § 12406(3). The dispute concerns the president's authority to federalize state National Guard forces and the statutory limits on federal intervention in state military resources.

"The Ninth Circuit made clear that the federal government cannot simply commandeer state military assets at will. The Constitution preserves the Governor's role as commander-in-chief of state guard units to protect public safety within our sovereign borders." - Rob Bonta, California Attorney General

What to watch: The court ruled that protest activity is not "rebellion," and that the President had unlawfully encroached on Congress's constitutional powers and "trampled" on state sovereignty. Some argue that this decision could create a binding circuit precedent, sharply limiting the use of the Insurrection Act or National Guard federalization statutes as a police force against state wishes during urban protests.

On October 16, the Tenth Circuit upheld the EPA's decision granting Oklahoma authority to regulate environmental matters on tribal lands without requiring tribal consultation as a condition of approval. The majority concluded that the governing statute required approval of Oklahoma's qualifying application, while the dissent argued that Congress must clearly authorize any displacement of tribal sovereignty.

Federal courts also addressed the scope of state regulatory authority in other areas, including Utah's restrictions affecting VPN users and Minnesota's firearm-purchase laws.

Read more on Utah's debate over the use of VPNs to get around age-verification laws

Thinking About Federalism

October was an interesting month in a few ways, for federalism scholarship, institutional research, and academic debate.

On October 16–17, the London School of Economics' Phelan US Centre hosted Taming Polarization: Reforming the American Federal Republic, examining federalism, political representation, fiscal equalization, and state autonomy. The conference considered whether decentralized governance can help manage political disagreement and institutional polarization.

New research highlighted during October addressed several emerging questions:

AI and Federalism: Catherine Powell's work on AI federalism examined how artificial intelligence may affect democratic self-government and the allocation of regulatory authority between federal and state governments.
Cross-Sovereign Policing: Nadia Banteka's research explored federal deputization and joint law-enforcement task forces, focusing on overlapping jurisdiction and accountability.
Population Health: Jennifer Karas Montez and Jacob M. Grumbach examined the relationship between contemporary federalism and population-health outcomes.
Understanding Federal Democracy by Arthur Benz: Published on October 29, 2026, by Edward Elgar Publishing, this book offers an argument for how federal democracy can solve the dilemma of balancing effective government with democratic legitimacy.
Federalism in a Turbulent Era author discussion: Prominent scholars Nicholas Aroney, Renato Costa, and Terefe Gebreyesus hosted a discussion on October 13, 2026, via the Center for the Study of Federalism detailing how various federal nations have navigated contemporary economic and social instability.
2026 Federalism Scorecard: Released this month, the 50-state analysis ranks state vulnerability to federal agency pressure, highlighting new "REINS-style" legislative oversight laws spreading across multiple states.