September in Review
American Federalism in an Age of Polarization
September was not boring. We continued a trend toward increasingly contentious disputes over the boundaries of federal and state authority. Election administration, immigration, energy policy, environmental regulation, federal grants, Medicaid, higher education, and emerging technologies all generated intense conflict - and with it, an unprecedented legal blitz, with tracking outlets recoding more than 365 active ongoing lawsuits challenging the Trump administration's executive actions and sweeping federal orders.
according to one estimate, in 547 active cases, courts have allowed the administration's sweeping executive actions to remain in effect while litigation continues, while federal judges have halted policies in at least 159 active cases.
we continue to recommend the Lawfare Litigation tracker for details on specific active cases
At the same time, federalism continues to be a subject of renewed institutional and scholarly attention. Governors adopted (or rather "reaffirmed") principles for state-federal relations, state attorneys gene continued on their aggressive, in some cases controversial, role as institutional checks on federal power, and a number of new books, articles, conferences continued to press forward on educating the public as to why "Federalism Matters."
AT A GLANCE
Election administration continues to be a focus, especially as we draw near the midterms
States continue to challenge federal action involving immigration, energy, environmental policy, Medicaid, and aviation.
Governors adopted updated principles for state-federal relations.
New scholarship and books examined nationalization, presidential power, and state constitutionalism.
Below are some of the most interesting and relevant events drawn from our Federal Policy Tracker. Let us know if you have items to add!
⚠️ indicates an action or policy that remains contested, or that has raised significant federalism concerns.
Elections
⚠️ On September 5, the D.C. Circuit ruled 2–1 that the administration could not use DHS’s SAVE database to provide citizenship information for state voter-roll verification in the manner challenged in the case, limiting federal use of national databases as a mechanism for intervening in state voter-registration systems. Then on September 25, 2026, the U.S. Supreme Court ruled in a 6–3 decision to allow the Trump administration to resume using its revamped version of the Department of Homeland Security's (DHS) Systematic Alien Verification for Entitlements (SAVE) database.
A federal judge has ruled that the Trump administration can not withhold 20 percent of roughly $1.1 billion in counterterrorism grants from jurisdictions that refused to adopt federally requested election-administration changes. Judge Amir Ali found that FEMA lacked congressional authority to attach election conditions to the grants, while the Department of Homeland Security maintained that voter-roll verification and election audits were intended to protect elections from foreign interference and cybersecurity threats. Judge Ali explicitly noted that while election security may be a "laudable goal," it is fundamentally not a counterterrorism goal, and federal law does not permit agencies to force states to implement costly federal policy goals on their own dime. Reuters
On September 10, the First Circuit refused to let a new Postal Service mail-ballot rule take effect before the midterms. The court said the rule likely regulated the “manner” of holding elections under Article I, Section 4—authority assigned to the states and Congress—while the Justice Department argued that the rule governed envelope design and postal barcodes rather than election administration. Then the Supreme Court The Supreme Court denied the federal government's emergency request to lift a lower-court injunction. This means the USPS mail ballot rule will not be in effect for the upcoming November 2026 midterm elections, allowing voters to cast their mail-in ballots under existing state guidelines. Reason / Volokh
On September 10, the U.S. Supreme Court stayed a federal district court order involving Missouri’s 2025 mid-decade congressional map, leaving in force a Missouri Supreme Court ruling that the map could not take effect unless voters approved it. The dispute places federal Elections Clause doctrine alongside state constitutional rules governing redistricting and referendum authority. In a unanimous, unsigned decision issued on September 25, 2026, the high court blocked a last-minute push by Missouri Republicans to reinstate a newly redrawn, Trump-backed 2025 map. The justices explicitly warned that forcing a map transition while absentee voting was already actively underway would "usher in electoral chaos".
Immigration, Education, and State Authority
⚠️ On September 10, the Department of Justice filed lawsuits against Hawaii, Arkansas, Utah, and Washington, D.C., challenging laws that provide in-state tuition or financial assistance to certain students regardless of immigration status. DOJ said those suits completed its effort to challenge every jurisdiction maintaining such a policy, bringing the total to 25 lawsuits; the litigation pits federal immigration authority against state control over public higher education and state educational benefits. In the Utah case, the lawsuit against Utah specifically targets House Bill 144, a law passed in 2002. For over two decades, HB 144 has allowed undocumented students to qualify for in-state rates at public universities—such as the University of Utah or Utah State University—if they attended a Utah high school for at least three years and graduated. The DOJ contends this directly violates federal statutory law. Higher education officials in Utah responded by stating that while they defer to the Legislature, they will continue to abide by current state law until ordered otherwise by a court. DOJ
what to watch: a few states (Minnesota and Oregon) appear to be resisting the measures, while other states have already withdrawn their policies. It is possible we might see states like Utah potentially preempt a final court order by drafting a full repeal of HB 144.
⚠️ A coalition of 22 states and the District of Columbia has sued the Trump administration to block a sweeping Department of Homeland Security (DHS) expansion of the "public charge" rule, which would give immigration officers broader discretion to consider use of public benefits such as food assistance and health coverage when deciding certain immigration applications. The states argue that DHS exceeded its statutory authority and shifted administrative and financial burdens onto state and local governments. Despite the legal challenges, the DHS rule officially took effect on September 18, 2026.
what to watch: possible fast track to the Supreme Court? Some state governments claim they stand to lose billions of dollars in federal funding and face increased healthcare strains as panicked residents cycle off safety-net programs out of fear. A state coalition has asked a Manhattan federal judge to issue an immediate nationwide block on the rule while the full case is litigated. Watch for a ruling on this injunction request in the coming weeks.
Meanwhile, an interesting new debate is emerging on who has the right to inspect U.S. Immigration and ICE detention facilities. States including New Jersey pressed during September to inspect privately operated federal immigration detention facilities and enforce state health and safety requirements. The federal government has relied on the Supremacy Clause to argue that states cannot regulate federal detention operations, while the states contend that private contractors remain subject to generally applicable state laws. Stateline
what to watch: The Trump administration previously implemented a policy requiring members of Congress to give a 7-day notice before visiting ICE facilities. Federal appeals courts have repeatedly blocked this, ruling that lawmakers have a right to unannounced oversight visits. Watch for the administration to petition the U.S. Supreme Court to permanently ban lawmakers from conducting surprise walkthroughs.
On September 12, a federal judge issued a preliminary injunction halting construction of an ICE facility in unincorporated Santa Clara County after California and county officials argued that the project bypassed environmental review and local consultation requirements. California OAG
Energy Federalism: Controlling the Grid
⚠️ A federal appeals court has dealt what some think is a major blow to the Trump administration’s efforts to keep Michigan's last coal plant running. On September 11, 2026, the U.S. Court of Appeals for the D.C. Circuit ruled that the U.S. Department of Energy (DOE) overstepped its legal authority when it used emergency powers to repeatedly halt Consumers Energy's planned retirement of the J.H. Campbell coal-fired power plant.
what to watch: a potential domino effect. The D.C. Circuit's ruling establishes that the DOE cannot use "emergency orders" as a routine tool to delay nationwide coal retirements. Watch how this immediately affects a parallel federal lawsuit in Colorado, where the state is fighting a similar DOE emergency mandate that forced the Craig coal plant to stay open past its retirement date.
An eight-state East Coast coalition has sued the Trump administration to block a series of massive, multi-billion-dollar federal "buyout" deals designed to permanently cancel offshore wind projects.
what to watch for: this case is highly complex, and will take some time to settle. The administration may be looking for more opportunities to "buy out" more Atlantic wind leases. Courts will have to figure out how to handle the logistics - if they rule against Trump - to force developers "back" into wind production if the buyouts are ruled illegal. States will continue to argue The states argue that the federal government is using leasing and spending authority to frustrate state energy policies, while the administration says its actions advance national energy priorities. AP
Environmental Federalism
The Trump administration has enacted sweeping regulatory rollbacks to the Endangered Species Act (ESA). Some think that these dangerously narrow habitat protections, elevating economic interests over state control, triggering explosive multi-state lawsuits.
⚠️ On September 9, a coalition of twenty states and the District of Columbia sued to block federal revisions to Endangered Species Act regulations, including a narrower interpretation of habitat-related “harm.” The administration asserts that these changes restore the original statutory intent, improve predictable land use, and remove unnecessary permitting burdens for landowners, farmers, and energy developers. Environmental groups, native tribes, and Democratic state leaders argue that the changes are a "prescription for extinction" that fundamentally dismantles America's primary wildlife safety net.Reuters
what to watch: some argue that the most radical shift is in the definition of "harm." Moving forward, it appears that it is only illegal to injure or kill a protected animal if the act is intentional. The lawsuits are arguing that the administration completely lacked scientific backing for the changes and violated the Administrative Procedure Act and National Environmental Policy Act. The 20 states and conservation groups are aggressively pushing for a federal court in San Francisco for an emergency preliminary injunction.
Meanwhile, two separate federal courts have struck down New York's landmark Climate Change Superfund Act, permanently blocking the state from enforcing it. Enacted in late 2024, the law aimed to establish a $75 billion climate adaptation cost-recovery program, funded by retroactive assessments on major fossil fuel extractors. Both courts determined that the federal Clean Air Act (CAA) preempts New York’s program, and that the law unlawfully infringes on the federal government's exclusive authority over foreign affairs. Governor Kathy Hochul's administration has indicated that the state will appeal the rulings.
The Spending Power and Medicaid
The intersection of the federal government's constitutional spending power and Medicaid funding has emerged as one of the most volatile battlegrounds in modern American federalism.
Under Article I, Section 8 of the U.S. Constitution (the Spending Clause), Congress can attach strings to federal funding, essentially treating programs like Medicaid as a "contract" between Washington and the states. However, the federal government cannot cross the line into unconstitutional "coercion"—a legal limit famously established in the landmark 2012 Supreme Court case NFIB v. Sebelius, which ruled that the federal government could not threaten to strip a state's entire existing Medicaid budget to force them into expanding the program.
The biggest flashpoints today stem from H.R. 1 (the "One Big Beautiful Bill Act"), which slashes federal Medicaid funding by an estimated $911 billion over 10 years and institutes strict federal mandates, including work requirements. A coalition of 25 Democratic-led states and Washington, D.C., filed a massive federal lawsuit to block a new Centers for Medicare & Medicaid Services (CMS) rule implementing these guidelines. The rule requires non-disabled adult enrollees to document 80 hours of monthly work or community service starting in 2027. The states are arguing that CMS unlawfully narrowed exemptions for the "medically frail". They contend that threatening a state's federal matching funds over an overly restrictive administrative barrier violates the Spending Clause and the Administrative Procedure Act (APA)
what to watch: advocates will be pushing for fast court interventions to try to block the rules before they take full effect on January 1, 2027.
New Frontier: Drones and State Regulatory Space
⚠️ The commercial drone delivery landscape in the United States is currently facing a massive regulatory and localized dispute. The dispute revolves around a multi-state legal battle against federal approvals and intense community pushback over noise, safety, and privacy. A coalition of 15 states and a Texas county has sued the Federal Aviation Administration (FAA) to block a nationwide expansion of commercial drone package deliveries.
On September 28, a coalition of 15 states and Harris County, Texas, sued the Federal Aviation Administration over its environmental review of proposed rules allowing expanded commercial drone operations beyond operators’ visual line of sight. The states, led by California AG Rob Bonta, have argued that the agency violates the National Environmental Policy Act, and also that the agencies failed to evaluate the cumulative noise pollution, safety risks (such as lithium-ion battery fires), and privacy disruptions of thousands of daily drone flights.
what to watch: the FAA found that there was. no "significant impact" on local jursidictions. Will the courts allow this to stand? Meanwhile, companies will have to navigate local zoning rules - many local governments have found themselves unable to stop incoming Amazon Prime Air expansions because state level laws have preempted local city rules. In short, this is a battle of multiple jurisidictions. States will be claiming the federal government has ignored state interpretations of "impact," while local suburbs are finding out their cities may not have legal authority to keep drones out of their backyards.
Federalism Accountability Units
In an interesting development, Virginia Attorney General Jay Jones created a new Federal Accountability Unit in September, establishing a four-attorney team dedicated to identifying and challenging federal actions that the office believes exceed federal authority or injure Virginia’s interests. Virginia OAG
The Federal Accountability Unit is described as the first cross-functional team of its kind inside the Virginia Office of the Attorney General. Rather than reacting to federal policies piece by piece, its mandate is to actively anticipate, identify, and mount rapid legal challenges against federal actions that threaten Virginia's economic or constitutional interests.
Thinking About Federalism
A few interesting developments at conferences and in the states.
On September 18, Washington and Lee University held Litigating Federalism: The Role of State Attorneys General at America 250, bringing together current and former state solicitors general and other practitioners to examine state litigation as a mechanism for contesting federal policy and defending state authority. Washington & Lee
A Bipartisan Federalism Statement
On September 4, the National Governors Association approved updated Principles for State-Federal Relations, emphasizing constitutional limits, state autonomy, consultation with governors, flexibility in implementing federal programs, and resistance to federal actions that shift costs or responsibilities to the states without adequate authority or resources. NGA
“Governors are committed to a vibrant, strong, and constitutional partnership with the federal government, which is necessary to preserve freedom and the rule of law.”
Counties Ask: What Comes Next?
From September 2–4, the National Association of Counties and the National Council of County Association Executives held their Federal-State Policy Exchange, including a September 4 session titled The State and Future of Federalism. The session examined changes in federal, state, and county responsibilities following the pandemic, political polarization, and shifts in the federal government’s role. NACo
Nationalization and the Way We Think
Finally, while we do not focus on academic federalism, here's a selection of interesting readings from this month.
On September 9, B. Kal Munis published “Thinking Nationally is Thinking Abstractly: A Cognitive Effect of the Nationalization of Politics in the United States” in Publius: The Journal of Federalism. The article asks whether nationalization changes not merely what citizens think about politics, but how they think about it, linking national political orientation to greater abstraction in political thinking. Publius
Donald F. Kettl’s Federalism, Trumpism, and Democracy in America, issued in print by Cambridge University Press on August 31 and highlighted by the Center for the Study of Federalism on September 23, examines federal funding and executive authority in national-state relations. Center for the Study of Federalism
Lisa K. Parshall and Jim Twombly’s Presidential Federalism: The Enduring Role of Presidents in Shaping National-State Relations was highlighted on September 25. The book examines presidents as federalism actors through executive action, administrative policy, rhetoric, and implementation. Center for the Study of Federalism
A September scholarly roundup from State Court Report surveyed new work on state-federal conflict and independent state constitutionalism. A recurring theme is resistance to constitutional “lockstepping”—the practice of interpreting state constitutional guarantees identically to comparable provisions of the U.S. Constitution. State Court Report
On September 13, Troy E. Smith of Utah Valley University’s Center for Constitutional Studies published a Constitution Day essay in the Deseret News defending federalism as a central feature of the American constitutional system. Deseret News
“The American constitutional system does not administer one people in one way. It is a union in which power is divided, rights are secured and the people govern themselves through multiple constitutional communities.”
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