American Federalism: October 2024 in Review

“Eye of newt and toe of frog, Wool of bat and tongue of dog” – Macbeth

This month we say goodbye to the ghosts and goblins of October, while preparing for something much more haunting, the prospect of a presidential race that could be too close to call.

As autumn sets in, state legislatures and federal courts are dealing with a slew of federalism issues, from environmental regulations and reproductive rights to cannabis policy and electoral reform.

An interesting court case over the distilling of liquor in Texas could resurrect the debates over the reach of the Commerce Clause.

Incidentally, Wickard v. Filburn, which effectively removed most existing limits on the scope of the commerce power, was decided on November 9, 1942.

Happy Halloween!

Federalism Flashpoints

A number of items were added to the Federalism Policy Tracker. Major topics include gender transition laws, EPA energy rules, and a new calendar for the Supreme Court that include potential landmark cases with implications for the future of American federalism.

Here is our selection of the top seven issues affecting states or with implications for American federalism in October:

  1. Presidential Promises: Both the Trump and Harris campaigns continue to test the limits of the public’s appetite for Constitutional change and other kinds of rhetoric that threaten to undermine the stability of the American Constitutional order. For example, calls to “abolish” the electoral college gained traction in October, echoing comments from Governor Walz. In another interview, Harris appeared to be open to other proposals to pack the Supreme Court. Former President Trump, for his part, continued to provoke his audiences with vaguely authoritarian rhetoric, which included promises to investigate media companies like Comcast, NBC, and MSNBC for treason and remove them from the airwaves. In response, the FCC chair condemned Trump’s ambiguous threat to revoke the licenses for CBS.
  • Supreme Court Schedule: The Supreme Court released its schedule for the upcoming term. At least three cases could have major implications for federalism, including  “ghost guns“, the scope of the EPA, and “sex transition treatments” for minors.

Here’s what you need to know:

United States v. Skrmetti is 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. Oral argument is now set for December 4.

Garland v. VanDerStok (Argued on October 8, 2024): This case examines the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ authority to regulate “ghost guns,” which are firearms assembled from kits or parts without serial numbers. The Court’s decision will clarify federal regulatory powers over such firearms. A decision is likely in early 2025.

FDA v. Wages and White Lion: concerns the FDA’s authority to regulate flavored e-cigarettes. Wages and White Lion Investments, doing business as Triton Distribution, challenges the FDA’s decision to deny market authorization for their flavored nicotine products. They argue that the FDA acted “arbitrarily and capriciously” by failing to adequately consider the companies’ marketing plans and the adult consumer demand for flavored e-liquids. Oral arguments will be heard December 2.

Free Speech Coalition v. Paxton is another high-profile case relating to a Texas law mandating age verification for access to pornographic sites. The Supreme Court’s decision in this case will clarify how far states can go in regulating online content to protect minors without infringing on adult rights. The respondent’s brief is due November 15, which means a likely delay in oral arguments, which may have to wait until the next term.

In late October, the court also agreed to hear three new cases involving challenges to recent EPA actions under the Clean Air Act. Those cases are likely to be argued next Spring.

  • 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.” There were new developments in October, as a number of other states filed amicus briefs, urging the Supreme Court to hear the case.
  • Title IX: Attorneys general for 23 states are working with female athletes to support a Kansas-led lawsuit that challenges the Department of Education in its attempt to redefine sex to include gender identity.
  • Nullification in Tennessee: A debate over nullification drew national attention in October. HB2795 “Restoring State Sovereignty Through Nullification Act” is a controversial bill that would allow the general assembly to “nullify” certain federal statutes deemed unconstitutional.
  • Saving Privacy Act: Introduced September 25, the Saving Privacy Act would make it harder for the federal government to “surveil” or abuse individuals’ private financial information

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. This election season, a select group of swing states will play a pivotal role in determining the outcome.

As we head in to potentially heated – and potentially contested – Presidential election, it is all the more important to remember that states are not only important because they matter to the electoral college map. They continue to be more trusted, as we demonstrate in our new report on “Trust in Government.”

This graph, updated with recent data, by Federalism Index senior researcher Johana Linford, shows how trust and confidence in state government remains relatively high, even after a series of shocks to the system, including Covid-19:

The States and Federalism

As of writing, there are currently more than 158,264 bills and resolutions across the 50 state legislatures. 4 states are currently in session, 4 states have no regular session this year, and 42 states are adjourned.

Here are just a few of the policies attracting attention in the last few weeks:

  • DOJ Alabama Lawsuit: The Department of Justice is suing Alabama for its efforts to purge voter rolls of noncitizen registrations, claiming it missed the deadline.
  • Supreme Court Rejects Alabama IVF Appeal: The Supreme Court has declined to review an Alabama Supreme Court decision defining frozen embryos to be “unborn children” for purposes of civil liability. Read more here
  • California Election Misinformation: A federal judge has blocked enforcement of Gov. Newsom’s law targeting election information and “deepfake” political ads. View story here
  • Tennessee Nullification Dispute: HB2795 “Restoring State Sovereignty Through Nullification Act” would allow the general assembly to “nullify” certain federal statutes deemed unconstitutional. Learn more here
  • Gender Dysphoria Multistate Lawsuit: 17 states have joined a lawsuit against a new rule from the U.S. Department of Health (HHS) that classifies gender dysphoria as a disability. Read more here
  • Energy Standards Multistate Lawsuit: Texas’ Attorney General is joining a multistate lawsuit over a Department of Energy rule that sets efficiency standards for gas and electric stoves and ovens. Read overview here
  • Florida DOJ Lawsuit: Florida is suing the Department of Justice over claims the DOJ is unlawfully blocking Florida’s investigation into the attempted assassination of Donald Trump. Learn more here
  • Wyoming Amicus Brief Supporting Utah Public Lands: Wyoming joined with Idaho and Alaska and a number of other states , supporting Utah’s federal public lands claims, which is currently pending before the Supreme Court. Read more here

To learn more about what is occurring at the state level, view our State and Local Policy Tracker here

Congress

Newly elected members of Congress will not be in office until January 3rd at noon. Some important changes were made to the ways in which Congress certifies elections, which may help take some of the edge off January 6.

  1. The Electoral Count Reform Act of 2022 has clarified that the Vice President’s role is strictly ministerial, emphasizing that they do not possess the authority to alter or reject electoral votes.
  2. In the aftermath of the 2020 election, some members of Congress objected to certifying certain states’ electoral votes, leading to significant controversy. To address potential challenges, the 2022 reforms increased the threshold for objections: now, an objection must be supported by at least one-fifth of both the House and the Senate to be considered

Recent Activity

As of writing (October 28th) there are at least 18,294 bills and resolutions currently before Congress.

Of these bills and resolutions, 633 had a significant vote in one chamber recently, giving them a “greater than zero” probability of passing. By our estimate, that means that roughly 3% of all Congressional activity is considered likely to have further action in the upcoming weeks or months.

16 bills were enacted during October, up from September’s count of 6.

This brings the current total of enacted bills to 320 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 – often because they have passed at least one chamber), here are a few with federalism implications:

  • H.R. 5339: Protecting Americans’ Investments from Woke Policies Act, a reform ESG bill recently passed the House. Learn more here
  • H.R. 6513: COCOA Act of 2024, was enacted October 4th and requires states to “provide designated congressional election observers with full access to clearly observe all elements of administration procedures of federal elections”

Introduced

As we approach the end of this session of Congress, there are still plenty of bills that are being introduced. Those with federalism implications cover a variety of topics such as:

reproductive health (H.R. 10075), federal land usage (H.R. 10042), grant programs (H.R. 10035), business and industry (H.R. 10026 and H.R. 9963), law enforcement (H.R. 10029), and of course elections (H.R. 10032 and H.R. 9967).

S.4361: Border Act of 2024 was introduced in the Senate. This bill aims to enhance border security measures and address immigration concerns. It has garnered attention due to its potential impact on immigration policy.

Executive

On October 30, 2023, President Biden signed an executive order titled “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.”

This comprehensive directive outlines the administration’s policy goals regarding AI, including promoting competition in the AI industry, preventing AI-enabled threats to civil liberties and national security, and ensuring U.S. global competitiveness in the AI field. The order mandates federal agencies to take actions pursuant to these goals and requires major federal agencies to create dedicated “chief artificial intelligence officer” positions within their organizations.

In October, President Biden also issued 3 determinations, 3 memorandums, 4 notices, and 28 proclamations.

  • For information on executive orders over time, see our “Executive Orders” primer.

Agencies

Federal agencies create regulations through a structured process known as rulemaking, primarily governed by the Administrative Procedure Act (APA) of 1946. In theory, this process helps to ensure transparency, public participation, and accountability in the development of federal regulations.

As of October 25th, there are 85,420 pages in 2024’s Federal Register with an average of 1,987 pages added each week. According to the Competitive Enterprise Institute (CEI), agencies issued 63 final regulations in the last week of October.

This is the equivalent of a new regulation every two hours and 40 minutes.

As of October 28, the Federal Register was on pace for 103,164 pages. According to the CEI, this means the Biden administration is on pace to smash the all-time record “adjusted page count” of 96,994, set in 2016 – by Donald J. Trump.

Some recent regulations with federalism implications include:

  • Greenhouse Gas Performance Measurement Rule: A rule from the Federal Highway Administration (FHWA) regarding the measurement of greenhouse gas emissions on US highways is being challenged by Republican lawmakers, who filed an Amicus Brief in the U.S. Court of Appeals for the Sixth Circuit. Read more here
  • Biden EPA Rules to Stand: The Supreme Court declined to block President Biden’s methane and toxic mercury emissions rule. Learn more here
  • DOJ Alabama Lawsuit: The Department of Justice is suing Alabama for its efforts to purge voter rolls of noncitizen registrations, claiming it missed the deadline. View story here
  • Title IX Challenge: Attorneys general for 23 states are working with female athletes to support a Kansas-led lawsuit that challenges the Department of Education in its attempt to redefine sex to including gender identity.  Learn more here

For more on regulations and how they affect American federalism, see our Regulations primer here

Judiciary

The U.S. Supreme Court began its new term this month.

During October, the Court heard 9 cases, decided on 24 emergency applications and added 19 new cases to their schedule.

Those cases with federalism implications include:

  1. Nuclear Regulatory Commission v. Texas: The case takes up the “major questions doctrine” and applies it to a case concerning temporary storage of nuclear waste in Texas. Learn more here
  2. U.S. v. Skrmetti: Oral arguments in a potentially landmark case over transgender laws in Tennessee are set to take place on December 4. Read analysis here
  3. FDA v. Wages and White Lion Investments: Oral arguments in a major case over an FDA rule banning flavored e-cigarettes are set to take place December 2. Learn more here
  4. Oklahoma v. Environmental Protection Agency: The Supreme Court announced it will hear a challenge by Oklahoma to a recent EP rule that allows the agency transfer air pollution lawsuits to Washington D.C., instead of regional courts. Read more here

State Supreme Courts

State supreme courts have issued over 7,466 opinions so far in 2024. That is the equivalent of roughly 25 opinions per day.

These cases cover a variety of topics including:

What issues matter to you most?

What policies are you watching in your state? What did we miss?

Let us know!

Authors: Andrew Bibby and Johana Linford