Hank McIntire via Center for Constitutional Studies. Members of the Federalism Index Project (Johana Linford, A. Bibby, Sam Hill) assemble with scholars and guests at a November workshop at UVU to discuss the importance of American federalism for civic education
The Federalism Index Project works to educate Americans on the vital significant of American federalism as part of the structure of the United States Constitution. Our research and bill tracking helps ordinary Americans understand and appreciate federalism by bringing some order to the chaotic world of intergovernmental relations. Over the year, our team has tracked hundreds of regulations, bills, executive orders, and court decisions. The following is a brief overview of our journey and a glimpse of what's on the horizon for 2024.
Launch of Federalism Policy Tracker 2.0: in February, we introduced an interactive and user-friendly version of the policy tracker
Coverage: this year we added over 250 items to our policy tracker, across all three branches (legislative, executive, judicial). This includes 70 executive (or regulatory) actions, 49 court items, and 50 legislative bills, and many more at the state level
State Tracking: we have added 78 state and local policy items that showcase the importance of states "doing federalism"
Key issues: a few major themes emerged from 2023, including reproductive rights, immigration, criminal justice, civil rights, education, elections, ESG, firearms, First Amendment rights, digital currency, land management, tribal rights, social media regulation, water resources, and water rights.
Research and publication: on November 3, the Federalism Index Project hosted a workshop with the intention of publishing a new book for legislators, teachers, and scholars titled, "Schools of Democracy: American Federalism and Civic Education."
2024: Looking Ahead
State and Local Policy Tracker: we're excited to unveil a new dedicated tracker for state and local policies that showcase federalism in action.
Website revamp: expect a fresh look with our FIP classroom and new dedicated pages for our trackers
Social Media Outreach: follow us at @FedIndex for regular updates and highlights of the latest policy actions affecting states and local government
Court Coverage: stay tuned for more analysis of Supreme Court rulings that will shape federalism in 2024 and in to the future
Regulatory Developments: we'll be keeping an even closer eye on major rules, as well as the 47 proposed and final rules from the Fall 2023 Unified Agenda
Civic Education: we are renewing our efforts to help make the study of American federalism more accessible by producing a new edited volume on the topic of American Federalism and Civic Education
Year in Review
Approaching the New Year, there are 12,148 bills and resolutions before Congress. Of the 254 which have had a significant vote in one chamber, 107 were enacted, 24 failed, and 8 were vetoed. Currently, only about 1% of legislation has been enacted this session compared to 7% in the previous (full) year.
Here are a few bills with clear federalism implications. Most bills here remain at the "introduced" stage. Bills are included here without regard to the chances of the bill becoming signed into law.
House Panel on "Weaponization of the Federal Government" (Feb 9): The first hearing for a new House panel on the "weaponization of the federal government" was held on February 9. Recently, the subcommittee released an interim staff report on December 4, available here
Parents Bill of Rights Act (March 3): House Republicans introduced a "Parents' Bill of Rights" that would require school districts to post curriculum and provide parents with a list of books in their library, among other measures
Legislation to Abolish the ATF (Jan 24): HB 450 would amend the Internal Revenue Code of 1986 to repeal the National Firearms Act
Restrict Act (March 7): Proposed legislation would give the President and Commerce Department new powers to regulate, ban, or restrict a wide range of communications and technology products, including Tiktok
Guidance Out of Darkness Act (Mar 9): "Guidance Out of Darkness" Act aims at increasing access to agency guidance documents
REINS Act (June 14): The Regulations from the Executive in Need of Scrutiny (REINS) Act passed the house. The bill would establish a Congressional approval process for Major rules and require review/approval of 20% of agency rules currently in effect. As of December 28, it remains on the Senate Legislative Calendar
Providing Accountability Through Transparency Act of 2023 (July 11): Legislation aims at increasing transparency in administrative agencies. The bill became law July 25
Voter Integrity and Defense Act (Sep 14): H.R. 5189 "Voter and Integrity and Defense Act" would amend the 2002 Help America Vote Act to condition the eligibility of States to receive Federal funds, based on that State's "having laws in effect that require voters to present a valid photo identification" in order to receive or cast a ballot
Executive Order to Expand Tribal Self Determination (Dec 16): EO 14112 aims to make it easier for Native Americans to access federal funding and have greater autonomy over how to employ federal funds
This year, President Biden issued 24 executive orders, 34 memorandums, 42 notices, 14 determinations, and 175 proclamations. 88,814 pages were added to the Federal Register with 2,068 proposed rules and 2,958 final rules.
Here is a short list of notable executive actions with federalism implications:
Title 42 Border Policy: in January, DHS began transitioning to an end to Title 42, a Trump-era policy that empowered federal authorities to turn away migrants for public health reasons. Title 42 expired in May
Justice Department to Sue Texas Over Floating Barrier in Rio Grande (July 24): On July 24, the Justice Department filed a lawsuit against Texas for deploying buoys as part of its immigration enforcement efforts
Executive Order on Voter Registration (Jan 23): Executive Order 14019, passed in March 2021, calls for federal agencies to "promote voter registration and voter participation." The order is receiving new scrutiny in 2023, with reports of a possible probe into the purpose and implementation of the EO by federal agencies
Executive Order on Racial Equality (Feb 16): President Biden's Executive Order on "Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government" is drawing criticism from legal scholars who focus on government overreach
President Biden EO on Gender-Affirming Care for Transgender Americans: in addition to President Biden's EO on Gender Affirming Care of 2022, President Biden suggested that there should be more laws forbidding opposition to puberty blockers and gender-affirming care for minors. The states have pushed back. As of June 2023, 20+ states had passed laws heavily restricting or banning gender-affirming care. 17 were passed in 2023. Most laws focus on regulating the administration of puberty blockers, hormone therapies, and surgery to transgender minors
President Biden Veto on ESG (Mar 23): President Biden issued his first veto, blocking a measure that would reverse Biden's controversial rule on the use of ESG in investment decisions. 26 Republican-led US states have appealed the rule
New Title IX Regulations for Transgender Student Athletes (April 6): The U.S. Department of Education Office for Civil Rights (OCR) has proposed new standards for clarifying participation of transgender students in school athletics. If implemented, the new rule would directly challenge 23 state laws prohibiting transgender athletes from playing sports "on teams aligned with their gender identity." As of writing, the change has not been implemented, due to a "flood of public feedback." It was unclear by the end of 2023 when schools might see the final rules from the Department of Education
President Biden Order to Protect Old-Growth Forests (March 23): The Biden administration 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
Proposed BLM Public Lands Rule (May 18): The BLM seeks to add "conservation and health" as official use for public lands. The rule has received pushback from states, including Utah, who argue it has the potential to harm the mining, grazing, and recreation that happens on BLM lands in the West
This year, the U.S. Supreme Court has heard 78 cases and issued 59 decisions. There are at present 9 cases scheduled for argument, with 24 yet to be scheduled. State supreme courts have issued over 6,516 opinions.
Listed below are some of the major federalism cases from 2023:
Biden v. Nebraska & Dept of Education v. Brown: In two related cases, six states (Biden v. Nebraska) and two student loan borrowers (Dept of Ed v. Brown) sued the federal government for violating separation of powers and exceeding Article III executive powers in their student debt relief plan. In June, the Supreme Court struck down the Biden student loan forgiveness program
Sackett v. EPA: in May the Supreme Court has allowed a new - and more stringent - test for defining and declaring wetlands for federal protection. The decision is thought to "shrink" the scope of previous laws designed to protect America's waterways
Moore v. Harper: In a 6-3 decision, the Supreme Court held that the federal elections clause does not vest "exclusive and independent authority" in state legislatures to set rules over federal elections
Affirmative Action Struck Down: The Supreme Court ended affirmative action in college admission. In two cases - Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina - the Supreme Court holds that the use of race in college admissions should end, although for different reasons.
303 Creative LLC v. Elenis: In its decision, the Supreme Court held that the First Amendment prohibits Colorado from compelling a website design service to "create expressive designs" that conflict with the conscience of the designer.
Anna Moneymaker via Getty Images
Securities and Exchange Commission v. Jarkesy: in November, The Supreme Court heard arguments in a new case that could redefine the theory of nondelegation and the proper scope of the SEC
As of this writing, there were 121,104 bills for the 2023 legislative session. Here are just a few of the major state actions that we have tracked:
Colorado Supreme Court "Trump Ban" (Dec 21): In Anderson v. Griswold, President Trump was disqualified from the presidency under the 14th Amendment. On December 27, the Michigan Supreme Court rejected a similar "insurrectionist ban" case, keeping Trump on the primary ballot
Texas Law to Arrest Migrants (Dec 17): Texas granted police powers to arrest migrants crossing the U.S. border illegally
Arkansas Law on Chinese Ownership (Nov 17): Arkansas enforced foreign-land ownership rules, ordering ChemChina to divest 160 acres of farmland
New Jersey Gas-Powered Vehicles Phase-Out (Nov 27): Legislation to phase out new gas-powered cars by 2035 was passed in New Jersey
State Regulated Cannabis Programs (2023): By the end of 2023, nearly all states allowed some legal cannabis access
Illinois Assault Weapons Ban (Dec 4): The Supreme Court declined to block Illinois' ban on assault-style rifles and large-capacity magazines
Ohio State Constitution Abortion Rights (Nov 7): Ohio voters passed "Issue 1," guaranteeing reproductive medical treatment rights, including abortion
Wisconsin Amendment to Block Church Closures (July 18): Wisconsin legislators proposed a constitutional amendment to bar "any state or local government agency" from shutting down gatherings in places of worship
Ohio School Choice Legislation: Ohio joined a "wave" of states passing pro-school choice legislation. Ohio joins Arizona, West Virginia, Iowa, Utah, Arkansas, Florida, and Oklahoma in passing similar legislation in the last 2 years
Idaho PILT funding (June 16): Idaho is now expected to receive $38 million in federal PILT funding for public lands. Money is expected to help counties maintain services because they are currently unable to collect taxes on public federal lands
Oklahoma Bill to Protect Counties from Federal Overreach (Feb 6): House Bill 1024 would require federal agencies to "inform county sheriff offices before conducting any raids or warrantless arrests within their jurisdiction"
South Carolina Bill to Express "Unwavering Support" for the Electoral College (Jan 10): In South Carolina, the legislature has introduced a bill to express “unwavering support” for the Electoral College, and to “urge the Governor and AG of South Carolina to litigate aggressively against any effort to repeal or nullify it, including the national popular vote interstate compact.”
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Authors: A. Bibby, Johana Linford, Sam Hill