American Federalism: November 2024 in Review

Federalism Index Project

It is perverse to hail devolution as a revival of American federalism…  -Martha Derthick, Keeping the Compound Republic, p. 160

We hope everyone had a happy and meaningful Thanksgiving holiday. There is a lot to be thankful for, including this federal system, which serves to protect Constitutional liberty, enhance democracy, and manage diversity within an increasingly large and heterogeneous society.

There was no shortage of news this month. Among a number of important items, the incoming Trump administration announced the creation of a DOGE department, just one of many initiatives that could have real consequences for the current balance of power moving forward into 2025.

 

Federalism Flashpoints

A number of items were added to the Federalism Policy Tracker. Here is our selection of the top 7 issues affecting states or with implications for American federalism in November:

  1. Education Shakeup: on November 22, a bill was introduced to “eliminate the Department of Education.” Lawmakers defended the bill because of concerns over whether the agency is “indoctrinating young people with inappropriate racial, sexual, and political material.” The bill provided more specifics beyond simply eliminating the DOE. It would redistribute federal programs to other departments, including state, labor, HHS, and interior. Expect for the “Returning Education to Our States” bill to be re-introduced in the first weeks of the 119th Congress
  2. Transgenderism and States Rights: a group of cases are working their way through the courts on the topic of Transgender sports bans, which include a set of problems related to disputing the sex of athletes, and whether those procedures violate the equal protection clause of the Fourteenth Amendment. The US Supreme Court will hear legal arguments in a potentially landmark case. U.S. v. Skrmetti, a high profile case concerning a Tennessee law enacted in 2023 that bans gender surgery and hormone treatment for patients under the age of 18. Arguments are set for December 2-4
  3. Presidential Powers and Mass Deportation: A Truth Social post from November 21 indicated that President Trump would “declare a national emergency and will use military assets to” to carry out mass deportation. Trump responded, “TRUE!!!” Commenters point out that President Trump would have a few likely Constitutional options, including the use of the Insurrection Act or other emergency powers, like requesting National Guard assistance. The ACLU responded on the same day, saying they are “preparing for litigation.”
  4. Dismantling DEI: in late November, the “Dismantle DEI Act” passed out of the House Oversight Committee. It would eliminate DEI practices within the federal government. More recently, there are reports that indicate that activist Christopher Rufo will be advising President-elect Donald Trump’s team on strategies to withhold federal funding from universities that continue DEI practices and to end affirmative action in federally affiliated institutions.
  5. Louisiana and the Ten Commandments: In June 2024, Louisiana enacted House Bill 71, mandating the display of the Ten Commandments in all public school classrooms by January 1, 2025. This legislation required each classroom to exhibit a poster or framed document, at least 11 by 14 inches, featuring the Ten Commandments as the central focus in a large, easily readable font. After a series of complications, the law remains unenforced, with further legal proceedings anticipated in December. The Fifth Circuit has scheduled arguments for January 23, 2025, to address the state’s appeal.
  6. “Hurrah for States Rights”: an article in The Verdict, published on November 11, encourages Democrats and Progressives to use “whatever tools they can,” including the “Jim Crow relic” of Federalism, to ensure that Trump has trouble implementing his plans. It will be worthwhile watching for developments in the Progressive Federalism literature, which received a boost in 2016 with Donald Trump’s first presidential victory. This is in line with another article, by Ray Nothstine, who had made a case earlier in November that American Federalism could be strengthened, regardless of who wins the Presidential election.
  7. First Day Executive Orders: President-elect Trump has outlined an ambitious agenda for his first day in office, including a number of major executive actions. The agenda includes resuming construction of the border wall, initiating mass deportations, and perhaps attempting to end birthright citizenship, though this is likely to face legal challenges. In the energy sector, he aims to boost fossil fuel production and withdraw from the Paris Climate Accord. Social policies will see a rollback as he seeks to eliminate diversity, equity, and inclusion initiatives within federal agencies and revoke protections for transgender individuals, particularly in educational settings. Trump is also targeting the federal bureaucracy with measures to reduce the influence of career officials, potentially reintroducing policies like “Schedule F” to reclassify civil servants. Stay tuned for more developments. We’ll be tracking President Trump’s plans on Executive Actions as we get closer to the inauguration.

State Roundup

The states are often called “the first branch of government.”

Studies show that Americans pay less attention to state politics than they did only a few years ago. This is of course true during a Presidential election cycle. Yet, states 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.

As we head into January, it is all the more important to remember the role that states play in preserving liberty, enhancing democracy, and managing conflict. We like to remind readers that states are also trusted more – as demonstrated in our new report on “Trust in Government.”

The States and Federalism

As of writing, there are currently more than 159,287 bills and resolutions across the 50 state legislatures. Only 3 states are currently in session. 1 state (Louisiana) is in special 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:

  • California Special Session: California lawmakers convened a special legislative session to “Trump-proof” state laws against anticipated federal challenges under President-elect Donald Trump. Governor Gavin Newsom urged legislators to allocate additional funds to the attorney general’s office to prepare for legal disputes concerning civil rights, climate change, immigration, and abortion access. The session aims to safeguard state policies, including sanctuary provisions and state-funded healthcare for all low-income residents, amid potential federal threats.
  • Mass Deportation and Sanctuary Cities: In response to President-elect Donald Trump’s announced plans for mass deportations of undocumented immigrants, several states and local jurisdictions and cities have declared their intent to resist cooperation with federal enforcement efforts. Los Angeles passed a “sanctuary city” ordinance prohibiting the use of city resources and personnel to enforce federal immigration laws, reinforcing its commitment to protecting immigrant communities. In Massachusetts, Governor Maura Healey has stated that Massachusetts State Police will not participate in federal deportation activities, emphasizing the state’s commitment to protecting its residents and maintaining public safety. Boston Mayor Michelle Wu has affirmed that the city will not comply with the planned mass deportation operations, highlighting concerns about inducing fear and economic consequences within immigrant communities. In Colorado Denver Mayor Mike Johnston has expressed strong opposition to federal deportation efforts, stating he would risk incarceration to protect migrants in the city. Denver, a sanctuary city, has invested substantial resources in services for migrants and aims to uphold its protective policies. In Illinois Governor J.B. Pritzker has pledged to protect immigrant communities and oppose federal deportation initiatives, aligning with other Democratic governors in preparing legal defenses against anticipated federal actions.
  • Tennessee Trans Bill: In March 2023, Tennessee enacted Senate Bill 1 (SB1), prohibiting medical treatments such as puberty blockers and hormone therapy for minors diagnosed with gender dysphoria. The law, effective July 1, 2023, aims to prevent minors from making irreversible decisions they might later regret. Violations can result in penalties up to $25,000. The U.S. Department of Justice challenged SB1, arguing it violates the Equal Protection Clause of the Fourteenth Amendment by discriminating based on sex and transgender status. A federal district court initially blocked the law’s enforcement; however, the Sixth Circuit Court of Appeals later allowed it to take effect, stating the state is likely to succeed on appeal. The case, United States v. Skrmetti, is scheduled for oral arguments before the U.S. Supreme Court on December 4, 2024. The Court’s decision could set a significant precedent regarding the legality of similar laws across the nation.
  • Ohio Bathroom Ban: On November 27, 2024, Governor Mike DeWine signed Senate Bill 104 into law, restricting transgender individuals from using bathrooms aligning with their gender identity in educational institutions. The law mandates that facilities in higher education institutions be designated by “biological sex” as listed on birth certificates, with limited exceptions for single-use and family facilities. The law is set to take effect in 90 days, pending any legal challenges.
  • Louisiana Ten Commandments: In June 2024, Louisiana Governor Jeff Landry signed House Bill 71 into law, mandating the display of the Ten Commandments in all public school classrooms by January 1, 2025. The law requires each classroom to exhibit a poster or framed document, at least 11 by 14 inches, featuring the Ten Commandments as the central focus in a large, easily readable font. Additionally, it mandates a contextual statement highlighting the historical significance of the Ten Commandments in American education. The legislation faced immediate legal challenges. On June 24, 2024, a coalition including the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, and the Freedom From Religion Foundation filed a lawsuit, Roake v. Brumley, on behalf of parents of Louisiana public school children. The plaintiffs argued that the law violated the Establishment Clause of the First Amendment by promoting a specific religious doctrine in public schools. On November 12, 2024, U.S. District Judge John W. deGravelles granted a preliminary injunction, ruling that the law was “unconstitutional on its face.” He stated that the mandate was “coercive to students” who “cannot opt out of viewing the Ten Commandments when they are displayed in every classroom, every day of the year, every year of their education.” Judge deGravelles emphasized that requiring the display of a religious text, without similar mandates for secular documents like the Constitution or the Bill of Rights, rendered the law overtly religious and in violation of the First Amendment. Louisiana Attorney General Elizabeth Murrill announced plans to appeal. As of writing, there is a block on the law’s enforcement while litigation continues.
  • State Trifectas: big changes to the state trifectas map after the election. In 2023, there were 40 state government trifectas in the United States, with 23 Republican trifectas and 17 Democratic trifectas. Following the 2024 elections, the number of state government trifectas has decreased to 38. Democrats lost trifectas in Michigan and Minnesota

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.

As of writing (November 27th) there are at least 18,697 bills and resolutions currently before Congress.

Of these bills and resolutions, 635 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.

30 bills were enacted during November, up from October’s count of 16.

This brings the current total of enacted bills to 362 for this session, compared to 1,234 last session. The website GovTrack estimates that 2% of all laws were enacted this session.

Federalism Implications

Here are a few “Most-Viewed” Bills according to Congress.gov that have federalism implications:

Education: In November 2024, legislative efforts to abolish the U.S. Department of Education (DOE) gained renewed momentum: Returning Education to Our States Act, introduced by Senator Mike Rounds (R-S.D.) on November 21, 2024, proposes eliminating the DOE and reallocating its functions to other federal agencies. For instance, programs under the Individuals with Disabilities Education Act would move to the Department of Health and Human Services, while the Department of Labor would oversee career, technical, and adult education programs. The bill has obvious implications for federalism because it aims to decentralize federal control over education, granting more authority to state and local entities.

No Kings Act: this legislative proposal was introduced in August 2024 by Senate Majority Leader Chuck Schumer, alongside over 30 Democratic senators. The bill aims to reaffirm that U.S. Presidents and Vice Presidents are not immune from criminal prosecution for actions that violate federal law. It seeks to clarify that Congress holds the authority to determine the applicability of federal criminal laws to these high offices. The controversial legislation proposes removing the Supreme Court’s appellate jurisdiction over cases challenging the constitutionality of this Act. Instead, such cases would be adjudicated by the U.S. District Court for the District of Columbia, with appeals directed to the U.S. Court of Appeals for the D.C. Circuit. The No Kings Act has been read a second time and placed on the Senate Legislative Calendar under General Orders (Calendar No. 494). The bill awaits further deliberation and voting in the Senate.

Border: The most recent significant legislative effort on immigration was the Border Act of 2024 (S.4361), introduced in May 2024, which aimed to enhance border security measures. This bill has not advanced past the introduction stage.

Executive

In November, President Biden did not sign any Executive Orders with implications for federalism. In total this month, his office issued 1 determination, 1 executive order, 3 memorandums, 4 notices, and 19 proclamations.

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

Agencies

Federal agencies create regulations through a structured process known as rule making, which is 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 November 22nd, there are 92,786 pages in 2024’s Federal Register with an average of 1,974 pages added each week. According to the Competitive Enterprise Institute (CEI), agencies issued 66 final regulations in the last week of November. This is the equivalent of a new regulation every two hours and thirty-three minutes.

This is the equivalent of a new regulation every two hours and thirty-three minutes.

As of November 25th, the Federal Register was on pace for 102,638 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.

Here is an updated graph of agencies with the most regulatory actions currently under review:

We’ll be tracking regulations under the Trump administration as well as any attempts to control the pace and scope of regulations under the new administration. For more on regulations and how they affect American federalism, see our Regulations primer here

Judiciary

In November 2024, the U.S. Supreme Court heard oral arguments in seven cases over five days. The argument session began on November 4 and concluded on November 13. None of these cases look like they have “blockbuster” potential, although it will be worth waiting for the decisions to see what comes of them. Cases with possible federalism implications include:

As an aside, it is worth noting that the Court, on November 22, granted a challenge to FCC subsidies based on the nondelegation doctrine. The Consumers’ Research group says that the FCC subsidies program to phone and internet service to rural areas, public schools, and low-income homes may violate the the Constitution by “improperly delegating Congress’ power to the FCC.” No word yet on when the case might be heard.

State Supreme Courts

State supreme courts have issued over 8,301 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 by following us on X, Instagram, or Facebook

Contact the PCC at Bruce.Lee@Phoenix-Correspondence-Commission.gov.

Authors: Andrew Bibby and Johana Linford