“The ballot is stronger than the bullet.”
There was no shortage of major political news in September. On September 10, Vice President Kamala Harris met President Donald Trump on a debate stage, drawing a massive viewership of over 67 million, making it one of the second-most watched political events of the year, second only to the Super Bowl.
On September 15, Donald Trump survived an assassination attempt while golfing.
As the election draws close, Americans will have to continue to remind themselves of the phrase, sometimes attributed to Abraham Lincoln, that “the ballot is stronger than the bullet.”
Federalism in Focus
In federalism related news, several new and important items were added to the Federalism Policy Tracker, from Sports Betting to Tailpipe Emission Standards to a set of new Supreme Court cases that will have major implications for American Federalism in to the future.
Here is our selection of the top seven issues affecting states or with implications for American federalism in September:
- Election-Year Promises: at the debate, Vice-president Harris promised once again that she would “proudly” sign a law reinstating Roe v. Wade. She backed away from a 2019 promise to ban fracking, but also did not answer questions about how she would do anything to regulate the industry. Donald Trump, meanwhile, promised to revolutionize higher education by creating a new [national?] institution called The American Academy; he has also promised a “Day One Executive Order Ending Citizenship for Children of Illegals.” But can the next President do much on these issues? Writing with some skepticism, federalism scholar Donald F. Kettl noted in a September 24 op-ed that federalism has become a handy talking point for both politicians: “It’s good politics for presidential candidates to talk about solving problems that presidents can’t do much about.” We’ll see.
- American Federalism Today is a new book, edited by Michael J. Boskin, published by Hoover Institution Press. The book features a number of experts from “a range of disciplines, including economics, political science, history, and law,” who “lay out the key priorities in evaluating and reinvigorating America’s federal system of governance.”
- Supreme Court Schedule: The Supreme Court released its schedule for the upcoming term. 9 cases are scheduled for this month (October) and and 7 for November. The cases cover issues related to “ghost guns“, the scope of the EPA, and “sex transition treatments” for minors.
The Federalism Policy Tracker will be reporting on possible implications for states and for American federalism, as they develop. The Justices return to the bench October 7.
Among the cases we’ll be following:
- United States v. Skrmetti: a high profile case focusing on a Tennessee law prohibiting medical treatment for trans minors. It will be the first time the Supreme Court weighs in on the constitutionality of statewide bans.
- Free Speech Coalition v. Paxton: another high profile case relating to a Texas law mandating age verification for access to pornographic sites. A decision in this case could affect states’ abilities to protect minors from exposure to harmful material.
- FDA v. Wages and White Lion: a case that will evaluate the Food and Drug Administration’s decision to “deny marketing authorization for flavored e-cigarettes.” A core question is whether the FDA’s regulation is “arbitrary and capricious,” by requiring the companies’ application before the announcement of new rules on providing studies on smoking cessation.
- Utah Lands: Utah made national news in August with its filing of a major public lands lawsuit, requesting the Supreme Court to review the question of whether the federal government can “hold unappropriated lands within a state indefinitely.” State leaders have advertised the public lands lawsuit this last few weeks, in part because the case has a significant chance of making it before the Supreme Court.
- In Vitro Fertilization (IVF) Blocked: The US Senate blocked a bill aiming at establishing a nationwide right to in vitro fertilization. The push for national legislation on IVF follows a controversial ruling from the Alabama Supreme Court, which classified frozen embryos as children.
- REINS Act Update: New updates to the Regulations from the Executive in Need of Scrutiny (REINS) Act were released on September 18 by Kat Cammarck (R-FL-03) and Senator Rand Paul (R-KY). Updates include new protections for individuals, a right to sue agencies who implement an action without prior congressional approval, and a new stipulation that any rule with an impact of $100M or more needs congressional approval (like major rules). For further reading on this important initiative, see: https://cei.org/blog/congress-decides-not-agencies-the-significance-of-the-reinvented-reins-act/
- Packing the Court…Again?: this summer, the Biden administration launched what has fairly been called an “attack on the independence of the federal judiciary.” Senator Ron Wyden proposed a new bill in the last week of September that would pack the court by adding 6 justices over 12 years, and also require two-thirds of the Supreme Court and federal circuit courts of appeals to overturn any law passed by Congress. View bill 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. States continue to carry out most of the important functions in our lives, including most areas of health, safety, education and other kinds of important state and local programs.
States are also more trusted, as our new report on “Trust in Government” shows.
As of writing, there are currently more than 156,362 bills and resolutions across the 50 state legislatures. 4 states are currently in session, 1 state (California) is in a special session, 4 states have no regular session this year, and 41 states are adjourned.
The States and Federalism
Here are just a few of the policies attracting attention in the last few weeks:
- Utah Public Lands: Utah filed a major public lands lawsuit, requesting the Supreme Court to review the question of whether the federal government can “hold unappropriated lands within a state indefinitely. “In a statement, Attorney General Sean D. Reyes said that current land policy “violates state sovereignty and offends the original and most fundamental notions of federalism.” State leaders have advertised the public lands lawsuit this last few weeks, in part because the case has a significant chance of making it before the Supreme Court.
- North Carolina Digital Currency: The North Carolina Senate successfully overrode Gov. Roy Cooper’s veto of a bill to limit the state’s participation in CBDCs. The bill would prohibit North Carolina from “recognizing or accepting a Central Bank Digital Currency (CBDC) issued by the Federal Reserve or any other central bank as legal tender.”
- Texas Medical Procedures Lawsuit: Texas’ Attorney General is suing the federal government over a rule that ‘shields’ medical records of women that cross state borders to have abortions. Texas Attorney General said that the “With this rule, the Biden Administration makes a backdoor attempt at weakening Texas’s laws by undermining state law enforcement investigations that implicate medical procedures.” Speaking of the rule itself, and not the lawsuit against it, HHS reports “The Biden-Harris Administration remains committed to protecting reproductive health privacy and ensuring that no woman’s medical records are used against her, her doctor, or her loved one simply because she got the lawful reproductive care she needed”
- Kansas Voter Registration Lawsuit: A Kansas-led multi-state coalition is suing the Biden Administration over an executive order directing federal agencies to boost voter registration.
- California Reparations Veto: Two California reparations bills failed to pass the legislature. Polls have shown that more than 65% of Americans oppose the idea of the federal government providing cash payments to the descendants of enslaved people. The defeat of these bills raises questions about the viability of state action on reparations, given the relatively high support for such legislation in the state of California
- Heartland Institute “State Solutions“ Report: The Heartland Institute released its “2024 American Health Care Plan: State Solutions” report, focusing on “how states can implement reforms that would lower health care costs, increase access…and use market forces to drive a more patient-centered approach.”
Congress
Congress can’t seem to get a break – especially in the court of public opinion. See our newly released report on “Trust in Government”, which highlights (below) the relative unpopularity of the First Branch of Government in relation to the Presidency and the Supreme Court.
Despite its sad performance in recent years, Congress still plays a role – and should – in maintaining the federal balance.
As Federalism scholar Martha Derthick has noted, Congress “both embodies federalism and influences how federalism is put into practice.”
“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 was active this month – even though the vast majority of legislation are “dead on arrival.” As of writing (September 27), there are at least 18,047 bills and resolutions currently before Congress.
Of these bills and resolutions, 655 had a significant vote in one chamber recently, giving them a “greater than zero” probability of passing. By our estimate, that means that roughly 4% of all Congressional activity is considered likely to have further action in the upcoming weeks or months.
6 bills were enacted during September, up from August’s count of 0.
This brings the current total of enacted bills to 280 for this session, compared to 1,234 last session. The website GovTrack estimates that 2% of all laws were enacted this session.
Federalism Implications
Among the resolutions and bills more likely to pass (with more than a zero percent chance of becoming law), here are a few with federalism implications:
- H.R. 9747: Continuing Appropriations and Extensions Act of 2025 passed the House (341-82) and the Senate (78-18). The resolution expires December 20.
- S.1549: Congressional Budget Office Data Access Act passed by a voice vote. The bill would increase transparency at the federal level by exempting the CBO from the Privacy Act of 1974.
- H.R. 6513: the COCOA Act of 2024 passed the house. The bill provides “statutory authority for election observers designated by members of Congress.”
To keep an eye on:
- S.4869 – Saving Privacy Act, described by its sponsors as “a bill to end government abuse of Americans’ financial information.”
Executive
President Biden signed two Executive Orders in September. Biden’s September 26 EO on “Combating Emerging Firearms Threats” has major implications for federalism.
The Executive Order on Combating Emerging Firearms Threats, signed by President Biden in late September 2024, aims to address the growing concerns over gun violence and the use of advanced firearm technologies, such as 3D-printed guns and machinegun conversion devices. This order focuses on two key areas:
- School Safety: It seeks to improve the design and implementation of active-shooter drills in schools to make them more effective and less traumatic for students. The order calls for research on best practices for these drills, ensuring they are age-appropriate and developmentally suitable.
- Emerging Firearm Technologies: The order establishes a Task Force to investigate and combat the proliferation of 3D-printed guns and devices that convert firearms into machine guns. The task force will assess the legality and technology behind these devices, including tracking their production, importation, and distribution. It will also examine the feasibility of regulating 3D printing software to block the creation of these dangerous devices.
Read the full statement here.
In September, President Biden also issued 1 executive order, 3 determinations, 6 memorandums, 4 notices, and 22 proclamations.
- For information on executive orders over time, see our “Executive Orders” primer.
Agencies
As of September 27th, there are 79,368 pages in 2024’s Federal Register with an average of 2,035 pages added each week. Contributing to that total are 1,315 proposed rules and 2,351 final rules. Additionally, there are 153 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
- United States v. Skrmetti: a high profile case focusing on a Tennessee law prohibiting medical treatment for trans minors. It will be the first time the Supreme Court weighs in on the constitutionality of statewide bans.
- Free Speech Coalition v. Paxton: another high profile case relating to a Texas law mandating age verification for access to pornographic sites. A decision in this case could affect states’ abilities to protect minors from exposure to harmful material.
- FDA v. Wages and White Lion: a case that will evaluate the Food and Drug Administration’s decision to “deny marketing authorization for flavored e-cigarettes.” A core question is whether the FDA’s regulation is “arbitrary and capricious,” by requiring the companies’ application before the announcement of new rules on providing studies on smoking cessation.
Check back here in our October edition for an updated list of Supreme Court cases with federalism implications.
What issues matter to you most? What policies are you watching in your state? What did we miss? Let us know by following us on X, Instagram, or Facebook.
Authors: Andrew Bibby and Johana Linford