“The maintenance of federalism involves ‘thinking federal’, that is, being oriented toward the ideals and norms of republicanism, constitutionalism, and power-sharing that are essential to the federal way” -Daniel Elazar, Exploring Federalism (1987)
April was another significant month for federalism policy. A number of new items have been added to the Federal Policy Tracker on a range of topics, from EV mandates to new FTC rules banning noncompete agreements, and State elections.
Federalism in Focus
Here is a selection of the top issues affecting states or with implications for American federalism in April:
- The US DEA appears ready to reclassify marijuana as a Schedule III drug. The move is widely acknowledged as a historical shift in federal drug policy, and also the agency’s biggest policy decision in more than 50 years. The rule must still be reviewed by the White House Office of Management and Budget.
- The Federal Trade Commission has issued a rule banning noncompetes. See the ruling here. The rule is controversial, in part, because 30 million workers – nearly one in five Americans -are subject to noncompete rules. Critics argue the rule “overrides the decision-making and oversight of state governments with a ‘one size fits all’ approach.” The US Chamber of Commerce has filed a lawsuit, alleging the FTC overstepped its authority.
- President Biden’s new EV Mandate is being challenged in court after a coalition of 25 AGs filed suit, alleging that the final rule exceeds the agency’s statutory authority and is “arbitrary, capricious, and an abuse of discretion.” Read the petition for review here.
- The Justice Department has indicated that it may take action to review what they deem “restrictive” voting laws in various states. In response, a group of 16 GOP attorneys have drafted a statement criticizing AG Merrick Garland. In the letter, the AGs write, “Your actions in the Department of Justice (“DOJ”) amount to a weaponization of the DOJ against the states, and your views about elections are not only a serious threat to the principles of federalism and separation of powers but also to democracy and the rule of law.”
- The Equal Employment Opportunity Commission has sued Sheetz, a Pennsylvania-based convenience store, over its use of criminal background checks in the hiring process. The EEOC claims the background checks are “discriminatory.” In its defense, Sheetz is likely to argue that Congress did not intend to provide equal opportunity to felons and ex-convicts when it passed the Civil Rights Act in 1964.
- Congress has passed HR 815, a supplemental appropriations bill that gives financial aid to several agencies to assist foreign nations. The bill also gives permission for various actions and sanctions against foreign entities, including a ban on TikTok, if the company fails to divest from parent company ByteDance. This move mirrors previous state action by 39 states that have already banned TikTok from government devices.
Federalism Shorts
This month, the Federalism Project introduced “Federalism Shorts,” a new series of short (30-60 second) videos to help busy readers keep up with the changing landscape of American federalism policy.
Here’s a sample focusing on Maine, which recently voted to join the National Popular Vote Interstate Compact (NPVIC):
View more federalism shorts here.
State Roundup
The states are often called “the first branch of government.” While state politics typically receive less attention in the study of US Government, they remain vital to maintaining the overall balance of power in the American federal system.
Contrary to some visions of American government that focus only on the high-stakes battles in DC, or in the national courts, the states continue to carry out most of the important functions in our lives, from education to healthcare to welfare and crime.
As of writing, there are currently more than 125,000 bills or pre-files across the 50 state legislatures. 28 states are currently in session with 1 state (North Carolina) not yet convened. 4 states have no regular session this year, and 17 states are adjourned.
The States and Federalism
Some readers may be surprised to learn that there are no organized or systematic attempts to track legislation across the states that have implications for Federalism. The Federalism State Policy Tracker is our attempt to correct this oversight.
Here are just a few of the policies attracting attention in the last few weeks:
- Florida Title IX: the Department of Education released a final rule on Title IX which will go into effect on August 1st, 2024. Florida’s DOE released a memo indicating that the Governor will resist controversial new changes.
- Pennsylvania Sheetz Lawsuit: the Biden Administration has sued a Pennsylvania convenience store chain for discrimination, arguing that its use of criminal background checks “disproportionately screened out Black, Native American/Alaska Native and multiracial applicants.” Read the lawsuit here
- Georgie Voter ID: A federal judge has dismissed a challenge to Georgia’svoter ID law. Critics of the law worry that the regulation would delay new citizens’ ability to vote. A federal judge ruled that the plaintiffs failed to prove that the voting rights of new/naturalized citizens were violated by being required to obtain a new state ID before voting
- AGs Election Integrity Statement: A group of 16 GOP attorneys have drafted a statement criticizing AG Merrick Garland for some vague comments relating to a plan to go after state election integrity laws. Read the letter here
- Arkansas Transgender Treatment Ban: a federal appeals court heard argument’s on Arkansas’transgender surgery ban. This is the nation’s first major state-level ban on gender surgery for minors. Similar restrictions have been adopted by more than two dozen other states.
- California Gas Ban: in California,the city of Berkeley has repealed what some have called the “first ever gas ban,” a measure that would have prohibited natural gas hookups in new construction. Observers have called the lawsuit a “final blow” to “dozens of California measures, which may raise questions about the fate of similar state laws
For more on each of these actions, see our “State Policy Tracker.“
Congress
Congress plays an important role in respecting the autonomy of state governments within their spheres of authority. As Federalism scholar Martha Derthick has noted, Congress “both embodies federalism and influences how federalism is put into practice.”
Given that most Americans associate Congress with gridlock, readers might be surprised to learn that Congress is active – the lack of legislation is not for lack of trying!
Today there are at least 14,460 bills and resolutions currently before Congress.
Of those bills and resolutions, 397 had a significant vote in one chamber, giving them a “greater than zero” probability of passing. By our estimate, that means that roughly 2.7% of all Congressional activity is considered likely to have further action in the upcoming weeks or months.
Five bills, H.R. 4389, S. 382, H.R. 7888, S. 2336, and H.R.815, were enacted during April. This is down from March, in which 11 bills became law.
This brings the current total of enacted bills to 182 for this session, compared to 1,234 last session.
Federalism Implications
Among the resolutions and bills more likely to pass, here are a few with federalism implications:
- HR 4563, the American Confidence in Elections Act would require proof of citizenship to vote. Learn more here
- HR 4639, the Fourth Amendment Is Not For Sale Act, “expands prohibited disclosures of stored electronic communications under the Stored Communications Act.” Read more here
Executive
In the last month, President Biden issued 2 executive orders, 1 memorandum, 3 notices, and 14 proclamations.
- EO 14121: Recognizing and Honoring Women’s History
- EO 14122: COVID-19 and Public Health Preparedness and Response
Biden has also promised to issue an executive order on the border, although no details of the plan are forthcoming.
For information on executive orders over time, see our “Executive Orders” primer.
Agencies
As of April 26th, there are 33,182 pages in 2024’s Federal Register with an average of 1,952 pages added each week. Contributing to that total are 609 proposed rules and 963 final rules. Additionally, there are 87 pending actions across various agencies.
Here are the agencies with the most “regulatory actions” currently under review:
For more on regulations and how they affect American federalism, see our Regulations primer here
Judiciary
The U.S. Supreme Court heard 10 cases in April, with none scheduled for May.
On April 24, the Supreme Court heard arguments in a Biden administration challenge to Idaho’s abortion ban. The case centers on the question of whether a federal law that requires hospitals to provide “stabilizing care” conflicts with Idaho’s abortion ban. A decision is expected later this summer.
By far the most important question this summer is whether the Courts will rule on Chevron Deference, in two related cases Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. For more, see this article posted May 1, “Constitutional Government After Chevron“?
Keep track of which cases have already been decided here and stay tuned for more on these decisions as we move into May.
State supreme courts have issued over 2,631 opinions so far in 2024.
What kinds of issues matter to you most? What policies are you watching in your state? What did we miss? Let us know by following us @FedIndex or by using the “Let’s Chat” button on the bottom right of your screen!
Authors: Andrew Bibby, Sam Hill, and Johana Linford of the Center for Constitutional Studies.