research paper

The State of American Federalism 2017–2018: Unilateral Executive Action, Regulatory Rollback, and State Resistance

Shanna Rose* and Greg Goelzhauser†

*Claremont McKenna College †Utah State University; [email protected]

The state of American federalism in 2017^2018 is characterized by federal policy reversals, as the Trump administration and congressional Republicans continue to undo many of the Obama administration’s policies. Two themes are highlighted in this essay. First, major policy changes continue to be undertaken primarily through unilateral executive action, even with Republicans holding the presidency and both the House and Senate. Ideological divisions within the Republican Party prevented Congress from enacting major legislation, save for a tax reform measure, and resulted in policy changes on health care, immigration, and the environment being made through executive and administrative action. Another prominent feature of governance in the early part of theTrump administration has been state resistance to federal directives, taking the form primarily but not exclusively of state attorney general (AG) lawsuits. Democratic AGs filed lawsuits challengingTrump administration actions on immigration and clean energy in particular. Democratic governors and state legislators also took a variety of other actions to resist Trump administration policies. The federal courts also continue to play an active role in shaping and adjudicating controversies impacting federalism.

The state of American federalism in 2017–2018 is characterized by federal policy

reversals, as the Trump administration and congressional Republicans continue to

undo many of the Obama administration’s major policies ranging from the

Affordable Care Act (ACA) to the Clean Power Plan. This development reflects the

continuation of trends that emerged in the first few months of the Trump

administration, when “the arrival of a new administration with radically different

priorities” ushered in “broad policy reversals in arenas such as health care,

immigration, and the environment, with potentially important implications for

federalism and intergovernmental relations” (Goelzhauser and Rose 2017).

Two additional themes emerged in 2017–2018. First, unilateral executive action

continued to play a prominent role in policymaking at the federal level despite

unified Republican control of the federal government. With the exception of the

Publius:TheJournal of Federalism volume 48 number 3, pp. 319^344 doi:10.1093/publius/pjy016 AdvanceAccess publication May 24, 2018 � TheAuthor(s) 2018. Published by Oxford University Press on behalf of CSFAssociates: Publius, Inc. All rights reserved. For permissions, please email: [email protected]

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Tax Cuts and Jobs Act that passed in December 2017, widening ideological

divisions within the Republican Party prevented passage of major legislation and

resulted in significant policy change occurring primarily through administrative

action. As Republican lawmakers’ efforts to repeal and replace the ACA succumbed

to legislative gridlock, the Trump administration chipped away at the law by

withholding Obamacare subsidies and announcing a variety of new rules making it

easier for insurers to sell, and consumers to buy, insurance policies that do not

comply with ACA regulations. As immigration reform stalled in Congress,

President Trump issued a series of executive orders limiting entry to the United

States from certain countries—orders that were quickly challenged in the courts.

The administration also took steps to limit environmental protections—

withdrawing from the Paris Climate Agreement, ending the Clean Power Plan,

and suspending the Clean Water Rule—and to reduce the size of Obama-era public

lands designations.

A second emerging theme was state resistance to federal directives, primarily but

not exclusively through a surge in state attorney general (AG) lawsuits. As

discussed by Paul Nolette and Colin Provost in their article for this issue, 2017–

2018 saw the continued—and accelerated—rise of litigation brought by attorneys

general. Democratic state AGs brought scores of legal actions against the Trump

administration over issues such as immigration and clean energy, following in the

path of Republican AGs who filed lawsuits challenging Obama administration

actions in these and other areas. In several of these cases, federal judges issued

nationwide injunctions barring implementation of Trump administration actions.

In cases filed or joined by state AGs, federal judges blocked enforcement of several

of Trump’s executive orders that restricted entry to the United States from certain

countries and also blocked a Trump effort to reverse an Obama administration

policy protecting certain unauthorized immigrants from deportation. Federal

judges also sided with state AGs in ruling that the Trump administration could not

reverse or delay enforcement of certain EPA regulations and could not alter the

Obama administration’s interpretation of the scope of the ACA’s contraceptive

coverage requirement.

Democratic governors and state legislators also took a variety of actions to resist

Trump administration policies. In passing measures inconsistent with Trump

administration policies, Democratic officials embraced a course of action pursued

on a regular basis by Republican governors and state legislators during the Obama

administration, as discussed by Adam Olson, Timothy Callaghan, and Andrew

Karch in their article for this issue. California Governor Jerry Brown signed

landmark “sanctuary state” legislation, limiting the cooperation of state and local

law enforcement with federal immigration authorities—prompting a federal

lawsuit against the state. Despite the Trump administration’s rescission of

Obama’s hands-off marijuana policy vis-�a-vis the states, Vermont became the

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ninth state to legalize recreational use of the drug, and the first to do so through

the legislative process.

Blue-state lawmakers also drafted and occasionally enacted legislation making

creative end-runs around other federal policies. State officials in the Northeast have

been particularly intent on pushing back against a provision of the 2017 federal tax

law that caps state and local tax deductions at $10,000, disproportionately affecting

Democratic-leaning states. Along with contemplating lawsuits challenging this

change in federal tax law, state officials have considered various other means of

passing legislation to limit the additional tax burden that the federal law imposes

on residents of their states. States have also begun to respond to the Trump

administration’s reversal of the Obama administration’s net-neutrality regulation,

by enacting state net-neutrality laws that impose various regulations on internet

service providers and thereby achieve the goals of the now rescinded Federal

Communications Commission regulation. With Democratic control of state

government at a low ebb—including only thirteen legislatures, sixteen governors,

and twenty-two attorneys general—these actions reflect the vehement resistance of

a remarkably small minority of state officials. Nonetheless, Democratic resistance

to the Trump administration’s agenda seemed to dominate the popular and

political discourse, leading Merriam-Webster Dictionary to name “federalism” as

one of the top ten words of the year in 2017.

Public Policy The next several sections analyze federal and state policy developments in 2017 and

early 2018, focusing on the areas featuring some of the most noteworthy

federalism-related developments: health care, immigration, marijuana, education,

and the environment.

Health Care

The spring and summer of 2017 saw the repeated failure of congressional efforts to

repeal and replace the ACA, as Frank J. Thompson, Michael K. Gusmano, and

Shugo Shinohara discuss in their article for this issue. Congressional leaders had

initially hoped to push through a speedy repeal-only option following Trump’s

inauguration, but were stymied by resistance from some rank-and-file members

and administration officials who feared political fallout from eliminating popular

provisions such as the Medicaid expansion and regulations prohibiting insurance

companies from discriminating against individuals with preexisting conditions.

Throughout the spring, Congress considered a range of options including the

Better Care Reconciliation Act, the so-called Skinny Obamacare Repeal, and the

Graham-Cassidy bill, but each failed in turn. Despite controlling both chambers of

Congress and the Oval Office, the Republican Party succumbed to internal

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ideological divisions, status quo bias, and the sheer complexity of the health care

issue.

In the absence of congressional action to repeal the ACA, the Trump

administration took a series of executive actions to undermine the law’s efficacy. In

October 2017, the White House announced that it would stop making the “cost-

sharing reduction” payments to insurers that subsidize the purchase of insurance

by millions of low-income Americans. In January 2018, the administration

unveiled sweeping new rules allowing small businesses to join together to create

“association” health plans that are exempt from the consumer protections

mandated by the ACA. State officials joined with consumer groups and health

insurers to oppose the measure, arguing that the inexpensive, skimpy plans would

attract the youngest, healthiest workers—leaving older, sicker employees in

traditional health plans and contributing to rising insurance premiums. In

February 2018, the administration announced a new rule that makes it easier for

consumers to buy inexpensive insurance policies that do not comply with ACA

regulations by redefining “short-term, limited-duration insurance” as plans

covering a period of less than one year; previously, such plans were defined as

covering less than three months.

Congressional Republicans did enjoy a significant victory in their battle against

the ACA in December 2017, when Congress passed and President Trump signed

the most sweeping tax reform bill since 1986. Among other provisions, the new tax

law eliminates the penalty imposed by the ACA’s individual mandate, effective

2019. The Congressional Budget Office estimated that repealing the individual

mandate penalty will reduce federal deficits by approximately $338 billion between

2018 and 2027 and increase the number of uninsured people by 13 million in 2027

(U.S. Congressional Budget Office 2017).

Some Republican-led states also took individual actions to undermine the

ACA’s efficacy. To be sure, state officials’ actions regarding the ACA have not

always fallen along partisan lines, as Philip B. Rocco, Andrew S. Kelly, and Ann C.

Keller demonstrate in their article for this issue analyzing state participation in the

ACA’s State Innovation Models initiative. On a number of other issues concerning

ACA implementation, however, Republican state officials have been active in

undercutting the law’s effectiveness. Most notably, Idaho made headline news in

January 2018 when Republican Governor C. L. “Butch” Otter issued an executive

order instructing his state’s insurance department to allow “creative options” in

health coverage, free from “the overreaching, intrusive nature of Obamacare and its

infringement on Idahoans’ freedoms.” The insurance department subsequently

pronounced that as long as insurance companies offer at least one health plan that

complies with ACA rules, they may defy the ACA in other ways, including selling

low-cost policies that lack certain basic services, imposing yearly coverage limits,

and discriminating against people with preexisting conditions. The Trump

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administration rejected Idaho’s plan, however, explaining in a letter from CMS

administrator Seema Verma that the ACA “remains the law, and we have a duty to

enforce and uphold the law . . . although it is certainly not our preference.”

However, the letter noted that “with certain modifications,” the proposal might be

acceptable, and encouraged the Otter administration to “continue to engage in a

dialogue with [CMS] staff regarding this and other potential options” (Verma

2018).

In contrast, a number of Democrat-led states responded to federal efforts to

dismantle the ACA by replacing or shoring up the law at the state level. Following

the repeal of the federal individual mandate penalty, at least nine states considered

passing laws that would require residents to have health insurance, although

prospects for passage remained unclear at the time of writing (Armour 2018). As

the Trump administration cut back on ACA marketing and outreach, some states

invested heavily in efforts to enroll new individuals. And as the administration

paved the way for stripped-down, short-term health plans, some states looked into

tightening regulations on such plans. Whereas the ACA originally sought to reduce

health disparities among states, such actions in certain states—and their absence in

others—looked likely to further widen the health care gap (Sanger-Katz 2018).

In 2017–2018, Republican states continued to seek conservative new twists on

the optional expansion of Medicaid under the ACA through the use of waivers.

The scope for such efforts expanded in January 2018, when the Centers for

Medicare and Medicaid Services (CMS) issued a letter to state Medicaid directors

providing new guidance for waiver proposals under Section 1115 of the Social

Security Act that would impose work requirements (referred to as “community

engagement”) as a condition of Medicaid eligibility—an option that had previously

been firmly rejected by the Obama administration. Conservatives hailed the

development as pro-work and anti-poverty, while liberals saw it as a thinly-veiled

attempt to reduce coverage of vulnerable groups.

In early 2018, the Trump administration approved three states’ waiver

applications including work requirements. First, CMS approved a waiver

application from the Republican Governor of Kentucky, Matt Bevin, titled

“Kentucky Helping to Engage and Achieve Long Term Health” or KY HEALTH, in

January 2018. In addition to a work requirement, the waiver included several other

conservative provisions including premiums of up to four percent of income—

greater than the level approved in any other waiver to date—as well as coverage

“lock-out periods” for a variety of reasons including nonpayment of premiums.

Shortly thereafter, CMS approved a similar waiver application from Indiana, which

had unsuccessfully sought approval of work requirements from the Obama

administration in 2015. In March, CMS approved Arkansas’s work requirement

application, but deferred the state’s request to reduce eligibility by lowering the

income threshold from 138 percent to 100 percent of the poverty level. All three

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states planned to exempt Medicaid beneficiaries from the work requirement if they

fall into certain categories such as disabled, pregnant, or primary caregiver,

although the states’ definitions of who meets these criteria varied.

Promptly after CMS approved KY HEALTH, Governor Bevin issued an

executive order calling for the end of Kentucky’s Medicaid expansion if the waiver

were to be struck down in court. Undeterred, fifteen Kentucky Medicaid

beneficiaries filed suit against the Trump administration in the case of Stewart v.

Hargan (now Stewart v. Azar). The suit charged that Kentucky’s recently approved

waiver violates the Secretary of HHS’s authority under the Social Security Act,

because it is not an experimental project consistent with the objectives of the

Medicaid Act. As Sara Rosenbaum observed, the recently approved waivers

represent a dramatic departure from those approved by previous administrations,

which had balanced risks, such as those arising from spending curbs, against gains,

such as enrollment expansions. Moreover, this strategy for “selectively culling the

Medicaid population” was particularly striking as it was “set to unfold against

perhaps the nation’s most successful ACA Medicaid expansion”—championed by

Governor Bevin’s predecessor, Democrat Steve Beshear—under which upwards of

400,000 people gained coverage (Rosenbaum 2018).

Several other states have expressed an interest in Medicaid work requirements.

As of March 2018, seven Republican-led states—Arizona, Kansas, Maine,

Mississippi, New Hampshire, Utah, and Wisconsin—had pending waiver

applications featuring work requirements as a condition of eligibility (Musumeci

et al. 2018). Utah’s application in particular received attention because, like

Arkansas’s deferred request, it also sought to reduce eligibility from 138 percent to

100 percent of the federal poverty level while continuing to receive the same federal

contribution rate. A few other states, including Oklahoma and Florida, mulled the

possibility of following suit with work-requirement waiver applications of their

own. Meanwhile, an investigation by the Government Accountability Office found

that there has been insufficient federal and state oversight of Medicaid waivers, and

that waiver evaluations have “generally lacked rigor” and suffered from “significant

methodological weaknesses,” calling into question the growing use of waivers to

dramatically remake the Medicaid program (U.S. GAO 2018).

The ongoing opioid crisis in the United States prompted governors to join with

medical providers and health-care advocates in pushing Congress to repeal a long-

standing rule that limits states’ ability to use Medicaid to fund care for opioid

addiction. The so-called “Institutions for Mental Diseases (IMD) Exclusion”

restricts Medicaid payments to facilities with more than sixteen beds from

providing substance abuse treatment, reflecting the federal government’s efforts,

around the time of Medicaid’s enactment, to deinstitutionalize mental-health

patients and integrate them into communities. The push to repeal the rule

represents a rare instance of bipartisan consensus among governors. In the absence

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of congressional action, the Trump administration granted waivers allowing two

states (Kentucky and West Virginia) to get around the IMD exclusion, and

signaled its openness to considering additional applications.

Immigration

Immigration federalism remains at center stage in the policy arena, as described

more fully by Gary M. Reich in his article in this issue. Many of the most

pressing issues are embroiled in ongoing litigation. Federal courts enjoined the

first two iterations of President Trump’s executive orders in early 2017 limiting

entry from certain countries. The Supreme Court in June 2017 agreed to review

the validity of the second executive order, but this order expired and the case was

dismissed from the docket. Upon the second executive order’s expiration,

President Trump in September 2017 issued Proclamation 9645 (2017) limiting

entry from nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, and

Yemen (though Chad was removed in April 2018). After the U.S. Court of

Appeals for the Ninth Circuit largely upheld but narrowed a district court’s

injunction against this third version of the travel ban, the Supreme Court again

granted review and the case is set for oral argument in April 2018. The Court

granted certiorari to address several questions, including whether the claims are

justiciable, whether the proclamation falls within the president’s statutory and

constitutional authority, and whether it violates the First Amendment’s

Establishment Clause.

Policies concerning so-called “sanctuary” jurisdictions continue to raise

important federalism issues. As municipal governments continue to adopt policies

that limit cooperation with federal law enforcement officials with respect to

immigration, several states have moved to limit local government authority in this

area. Most prominently, Texas enacted legislation in 2017 preventing local entities

from passing policies that “prohibit[] or materially limit[] the enforcement of

immigration laws” (Texas Senate Bill 4 [2017]). Moreover, the bill commands local

law enforcement to “comply with, honor, and fulfill” ICE detainer requests (Texas

Senate Bill 4 [2017]). The City of El Cenizo initiated litigation alleging, among

other claims, that federal law preempts the bill; that it violates the U.S.

Constitution’s First and Fourteenth Amendments; and that it violates separation of

powers and home rule provisions of the Texas Constitution. After a federal district

court initially enjoined enforcement of parts of the law (City of Cenizo v. Texas,

No. SA-17-CV-404-OLG [2017]), the Fifth Circuit stayed part of the injunction

(City of Cenizo v. Texas, No. 17-50762 [2017]) and litigation to resolve the case on

its merits is in progress. Moving in the other direction, several cities in California

are poised to sue the state in an effort to secure exemptions from its sanctuary

policies (Holder 2018), which are discussed in more detail below.

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Litigation is also ongoing regarding Executive Order 13768 (2017), where

President Trump stated intent to deny federal funds to jurisdictions that do not

comply with federal immigration law. In the most thorough decision on the merits

to date, a federal district court in California enjoined enforcement of the order,

finding that plaintiff municipalities are likely to prevail in arguing that the order is

unconstitutional (County of Santa Clara v. Trump, 250 F. Supp. 3d 497 [2017]).

Specifically, the court indicated that municipalities were likely to succeed in

arguing that the order violated the separation of powers; usurps congressional

spending authority; violates the Spending Clause, even if the president had that

authority; violates the Tenth Amendment’s prohibition on commandeering local

officials; and violates the Fifth Amendment’s Due Process Clause as a result of

various ambiguities, including a lack of clarity on what constitutes a “sanctuary”

jurisdiction and what actions would constitute violations of the order. Aside from

the merits, this litigation poses potentially interesting justiciability questions given

that the order has not yet been enforced. In County of Santa Clara v. Trump, the

district court argued that it was sufficient that municipal policies were inconsistent

with the order, that there was expressed intent to enforce the order, and that

budgetary uncertainty constituted sufficient injury.

Meanwhile Congress continues to consider legislation aimed at thwarting

sanctuary jurisdictions. In 2017, the House passed the “No Sanctuary for Criminals

Act” (H.R. 3003). It declares that no governmental entity or individual may

“prohibit or in any way restrict” efforts to comply with federal immigration law.

While Senate passage is less likely in its current partisan configuration, President

Trump continues to lobby for action. In his weekly address on March 10, 2018, he

said, “Sanctuary jurisdictions are the best friend of smugglers, gang members, drug

dealers, human traffickers, killers, and other violent offenders. We want our cities

to be sanctuaries for Americans, not safe havens for criminals. That is why I am

calling on Congress to block funds for jurisdictions that shield dangerous

criminals.”

On March 6, 2018, the Trump administration brought suit against California

arguing that federal immigration law preempts recently enacted California

legislation limiting the ability of employers to provide nonpublic access to the

workplace without a warrant for immigration enforcement purposes, directing the

state AG to inspect facilities holding immigration detainees, and limiting state and

local cooperation with federal immigration enforcement. In its initial complaint,

the administration argued that these statutes “reflect a deliberate effort by

California to obstruct the United States’ enforcement of federal immigration law,

to regulate private entities that seek to cooperate with federal authorities consistent

with their obligations under federal law, and to impede consultation and

communication between federal and state law enforcement officials” (Complaint

2018, 2). Consistent with how changing partisan perspectives have driven recent

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federalism debates more broadly (Goelzhauser and Rose 2017), the tenor of this

litigation resembles questions resolved by the Supreme Court in Arizona v. United

States, 132 S. Ct. 2492 (2012), where the Obama administration successfully argued

that antiimmigration laws in Arizona were preempted by federal immigration law.

Judicial proceedings also continue in the dispute over the Deferred Action for

Childhood Arrivals (DACA) policy. Announced by President Obama in 2012,

DACA allowed certain individuals who entered the country as minors and

remained undocumented to receive renewable two-year permits and avoid

deportation. After President Obama in 2014 sought to expand the program, by

putting in place a Deferred Action for Parents of Americans and Lawful

Permanent Residents (DAPA) program, numerous states challenged the validity

of the DAPA order. The Supreme Court ultimately affirmed an injunction against

DAPA by an equally divided vote after Justice Scalia’s passing (United States v.

Texas, 136 S. Ct. 2271 [2017]). When President Trump moved to end DACA,

numerous states, municipalities, and other entities brought suit raising various

claims, including that the rescission violated the Administrative Procedure Act,

the Fifth Amendment’s Due Process Clause, and the Fourteenth Amendment’s

Equal Protection Clause. Finding that plaintiffs were likely to succeed on the

merits of the claim that rescission was arbitrary and capricious and thus invalid

under the Administrative Procedure Act, a federal district court mandated that

the program be continued (Regents of the University of California v. United States

Department of Homeland Security, 3: 17-cv-05211 [2018]). Subsequently, the

Supreme Court denied the government’s request for expedited review and further

litigation is pending. Simultaneously, Congress continues to discuss legislative

reform.

Marijuana

Marijuana policy was characterized by growing federal-state conflict in 2017–2018.

In January 2018, U.S. AG Jeff Sessions rescinded a triad of Obama administration

memos that had established a hands-off policy with regard to state laws legalizing

marijuana. The Obama administration memos, issued by Deputy Attorneys

General David Ogden and James Cole, had stated that although marijuana

remained illegal at the federal level, federal prosecutors should place low priority

on prosecuting growers, sellers, and consumers as long as they complied with state

laws. Calling the change in policy a “return to the rule of law,” Sessions instructed

“federal prosecutors deciding which cases to prosecute to weigh all relevant

considerations of the crime, the deterrent effect of criminal prosecution, and the

cumulative impact of particular crimes on the community” (Sessions 2018).

However, Sessions later clarified that federal law enforcement lacks the resources to

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prosecute “small” or “routine” cases, and would instead continue to focus on drug

gangs and other major cases (Gurman 2018).

Political leaders in states where marijuana is legal denounced the change in

federal guidance. California Lieutenant Governor Gavin Newsom complained that

the Trump administration had “destructively doubled down on the failed, costly

and racially discriminatory policy of marijuana criminalization, trampling on the

will of California voters” (Newsom 2018). Oregon Governor Kate Brown called the

reversal “deeply concerning and disruptive to our state’s economy,” and protested

that “voters in Oregon were clear when they chose for Oregon to legalize the sale

of marijuana and the federal government should not stand in the way of the will of

Oregonians” (Brown 2018). Many state leaders complained that they had not been

consulted or notified in advance about the change.

Sessions also sent a letter to congressional leaders in 2017, asking them to repeal

the Rohrabacher-Blumenauer (formerly Rohrabacher-Farr) Amendment, which

since 2014 has blocked the Justice Department from using federal tax dollars to

prosecute states where medical marijuana is legal. However, after two brief

government shutdowns and considerable budgetary uncertainty, Congress finally

hammered out a budget deal that preserves the amendment, at least for the time

being.

In stark contrast to the Trump administration’s efforts to crack down on

marijuana, public opinion polls indicated record high support for legalization of

the drug. According to an October 2017 poll by Gallup, 64 percent of Americans

say the drug should be legal—the highest level of support in the nearly five decades

Gallup has been polling on the topic. Although a partisan divide remains, with 72

percent of Democrats favoring legalization compared to 51 percent of Republicans,

2017 was the first time a majority of Republicans have expressed support for

legalization. The 51 percent approval rate reflects a sizeable nine percentage-point

increase relative to the previous year. As the Gallup report observed, “Attorney

General Jeff Sessions could find himself out of step with his own party if the

current trends continue” (Gallup 2017).

State and local efforts to legalize marijuana progressed in 2017–2018. Most

notably, Vermont became the ninth state to legalize recreational use of the drug—

and the first to do so through the legislative process. 1

After the state’s Democrat-

controlled legislature passed the bill, Republican Governor Phil Scott signed it into

law with “mixed emotions,” observing: “A number of states have already legalized

it surrounding us. Whether we like it or not, it’s here and it’s being utilized, so we

have to take steps to promote the general public” (Sanders 2018). Reflecting a

bipartisan compromise, the Vermont law does not go as far as those of other states

that have legalized marijuana. It allows individuals aged twenty-one years and over

to possess one ounce and to grow up to two plants at home, but does not permit a

legal retail market for the drug.

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Vermont’s law set an important new precedent that the Democratic leaders of

several other states signaled they wished to emulate. New Jersey’s new governor,

Democrat Phil Murphy, campaigned on the issue and, upon taking office,

expressed his desire to sign legislation legalizing marijuana during his first year. As

of spring 2018, a bill to legalize the possession and use of small amounts of the

drug and establish a legal retail market was under consideration in the state

legislature, but prospects for passage were murky due to ambivalence or opposition

among lawmakers of both parties. Rhode Island’s Democrat-controlled general

assembly set up a commission to study legalization, and Delaware’s Democrat-

controlled general assembly established a task force to do the same. Meanwhile,

advocates in a handful of other states including Michigan and Ohio pushed to get

recreational marijuana on the 2018 ballot.

Legalization of recreational marijuana in California, passed by ballot measure in

2016, went into full effect on January 1, 2018, when recreational sales became legal

for the first time. Although the law allows adults twenty-one and older to possess

up to one ounce of the drug and to grow up to six plants at home, the state’s anti-

tobacco laws prohibit residents from smoking the drug in public. Despite

marijuana’s new legal status within the state, some local governments moved to

regulate or ban its sale and use. Four of the state’s largest cities—Los Angeles, San

Diego, San Jose, and San Francisco—allow recreational cannabis shops, but many

other localities including Bakersfield and much of Orange County ban all

marijuana businesses. The result is “a rapidly evolving patchwork of rules that can

vary widely from one city to the next” (Staggs 2018).

Implementation of 2016 ballot measures legalizing recreational marijuana in two

other states—Massachusetts and Maine—was slower, following months of

deliberations over rules and regulations governing sale of the drug.

Massachusetts’s Cannabis Control Commission finalized its rules in March 2018,

paving the way for retail sales to begin in July. In Maine, Republican Governor

Paul LePage vetoed the legislature’s first bill to regulate marijuana sales in 2017,

arguing that it conflicted with federal law, was inconsistent with the state’s medical

marijuana program, and created “a bifurcated regulatory structure with two

Executive Branch departments regulating the market, which is almost certain to

create unnecessary additional administrative costs and confusion,” among other

concerns (LePage 2017). In 2018, state lawmakers set to work drafting a revised

bill, but its prospects for passage and avoiding another gubernatorial veto

remained unclear.

Lawmakers in several states including California, Alaska, and Massachusetts

responded to the Trump administration’s reversal of Obama-era protections for

states that have legalized marijuana by considering bills that would provide

“sanctuary status” for licensed cannabis businesses. Borrowing an idea from the

recent state and local movement to protect undocumented immigrants, the

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measures would prohibit the use of state or local resources to assist in federal drug

enforcement efforts, in the absence of a court order, targeting businesses or

individuals who are in compliance with state marijuana laws. Berkeley, California,

passed a resolution making it a marijuana sanctuary city in February 2018.

Efforts to legalize medical marijuana and decriminalize possession of small

amounts of the drug also inched forward. West Virginia became the twenty-ninth

state to legalize the use of marijuana for certain medical conditions in 2017; the

law only applies to cannabis-infused products, excluding smokable marijuana.

Several other states including Kentucky, Oklahoma, South Dakota, Utah, and

Missouri mulled legalization of medical marijuana in 2018, either through

legislation or ballot initiatives (Sanders 2018). Although decriminalization of

marijuana stalled in Alabama, several cities including Atlanta, Albuquerque, and

Kansas City decriminalized the possession of small amounts of the drug. And San

Francisco moved to automatically dismiss all marijuana misdemeanor convictions

dating back to 1975 and clear the records of individuals who faced such charges.

Education

The Trump administration’s efforts to scale back the role of the federal

government in education policy continued in 2017–2018. One area in which this

shift was particularly apparent was school accountability. The Every Student

Succeeds Act (ESSA), signed by President Barack Obama in 2015, replaced No

Child Left Behind and diminished the federal role in improving or closing low-

performing schools by allowing states to establish their own accountability systems.

In early 2017, congressional Republicans further reduced the federal role by

rescinding Obama-era regulations clarifying how states should measure schools’

performance and hold low-performing schools accountable under the law. U.S.

Secretary of Education Betsy DeVos subsequently released a scaled-back application

template for states to use in developing their accountability plans that included

fewer requirements than before, particularly with regard to soliciting input from

the education community. She said the new guidelines would allow states and

districts to implement the law with “maximum flexibility,” but a variety of

stakeholders including the National Governors Association, American Federation

of Teachers, and National PTA expressed disapproval (Klein 2017).

The process by which the Department of Education vetted state accountability

systems in late 2017 and early 2018 was turbulent. In approving thirty-five states’

plans while sending others’ back for revisions, DeVos vexed both congressional

Democrats, who accused the Education Department of rubber-stamping

inadequate plans, and Republicans eager for maximum state flexibility.

Education and civil rights groups joined Democrats in criticizing the approval of

state plans that inadequately measured the performance of certain groups such as

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minority students and inadequately enforced improvement for those groups

(Camera 2018). DeVos responded by pointing her finger back at the states for

failing to take full advantage of the new freedom they had been afforded by

innovating in educational programming. Complaining about “too many plans that

only meet the bare minimum required by the law,” DeVos nonetheless vowed not

to fall into the “trap of a top-down approach” that had been pursued by her

predecessors (DeVos 2018).

Another area characterized by federal policy reversals and federal-state conflict

was Title IX of the Education Amendments of 1972, a federal civil rights law that

prohibits discrimination on the basis of sex in any educational program that

receives federal funding. In February 2017, the Trump administration revoked an

Obama-era guidance letter specifying that public schools should allow students to

use bathrooms that align with their gender identity. In rescinding the guidance,

DeVos and Sessions said that Title IX did not compel schools to allow transgender

students to use the bathroom of their choice, and argued that states and school

districts should be permitted to determine how to best accommodate the needs of

transgender students. Civil rights groups criticized the move as leaving transgender

students susceptible to aggression and violence. One year later, the Education

Department confirmed that it had dismissed several civil rights complaints from

transgender students who had been prohibited from using school bathrooms

matching their gender identity, and clarified that it did not plan to hear or take

action on such complaints.

The Education Department rescinded another Obama-era Title IX guidance

letter when it offered new guidelines on how schools should respond to allegations

of sexual assault. In September 2017, the Trump administration replaced Obama’s

2011 “Dear Colleague” letter with a “Q&A on Campus Sexual Misconduct” stating

that to protect due process for the accused, schools could use a more rigorous

standard of proof known as “clear and convincing evidence” instead of the

“preponderance of the evidence” standard that had been advanced by the Obama

administration (U.S. Department of Education 2017). The new guidance also

allowed schools to pursue informal resolutions such as mediation if both parties

agree to it, and to establish an appeals process. The move drew both praise and

criticism from various groups, but many campuses indicated that it would have

little effect on their sexual assault policies.

Following the February 2018 mass shooting at Marjory Stoneman Douglas High

School in Parkland, Florida, public pressure mounted for new federal and state

policies to promote school safety. In March, the Florida Legislature passed

sweeping bipartisan legislation that, among other measures, funded additional

school security and mental health personnel and permitted certain staff members

to carry guns in schools. Subsequently, several other states mulled similar

measures. Florida is not the first state to allow teachers to carry guns, although

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many educational groups including the National Education Association and

American Federation of Teachers are opposed to the policy (Hobbs and Brody

2018). For its part, the White House announced a few token measures—including

the creation of a school safety commission led by DeVos and a pledge to fund

firearm training to school personnel through the Department of Justice—but

otherwise left policy changes up to states and school districts, calling school safety

“a state and local issue” (Camera 2018).

Environment

The Trump administration continues to take steps to limit environmental

protections. As David M. Konisky and Neal D. Woods explain more fully in this

issue, the federalism implications have been striking. In June 2017, the

administration announced that it would withdraw from the Paris Climate

Agreement. The agreement is a global pact to reduce emissions and manage the

global average temperature to counteract climate change. Examples of important

regulatory maneuvers include the October 2017 announcement that the

administration would end the Clean Power Plan and January 2018 suspension of

the Clean Water Rule. The former is an Obama-era regulation that seeks to reduce

carbon dioxide emissions, while the latter subjects certain waterways to regulation

under the Clean Water Act.

One emerging federalism dispute involves the Corporate Average Fuel Economy

(CAFE) standards. By regulating vehicle fuel efficiency standards, the CAFE

standards are widely considered to be an important tool for mitigating emissions

and greenhouse gases. Three recent events surrounding the CAFE standards are

notable. First, in a lawsuit brought by five states among other entities, the U.S.

Court of Appeals for the Second Circuit vacated the administration’s decision to

delay implementation of an Obama-era rule to increase noncompliance penalties,

which had eroded over time through inflation (National Resources Defense Counsel

v. National Highway Traffic Safety Administration, 17-2780 [2018]). Second, in a

move “sure to spark major political and legal battles,” the administration

announced that it would revoke Obama-era standards mandating certain vehicles

to average more than fifty miles per gallon by 2025 (Eilperin and Denis 2018).

Third, as discussed in detail in last year’s Annual Review (Goelzhauser and Rose

2017, 299–300), California’s preemption waiver to adopt more stringent emission

standards—which in turn have been adopted by numerous states—were thought to

be one of the administration’s key targets for regulatory rollback. While

announcing a plan to revise CAFE standards, Administrator Pruitt declared, “EPA

will set a national standard for greenhouse gas emissions that allows auto

manufacturers to make cars that people both want and can afford—while still

expanding environmental and safety benefits of newer cars” (Kulish 2018).

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Referring to California’s waiver specifically, Pruitt added, “Cooperative federalism

doesn’t mean that one state can dictate standards for the rest of the country”

(Kulisch 2018).

States and municipalities are combatting efforts to limit environmental

protection in several additional ways. During the Trump administration’s first year,

Democratic state attorneys general brought dozens of legal actions over issues such

as clean energy, pollution, and federal lands (Grandoni 2018). In February 2018,

for example, New York led a coalition of eleven states challenging the Clean Water

Rule’s suspension as a violation of the Administrative Procedure Act. In the

complaint, plaintiff states argued that the suspension “harms the States’ waters by

limiting the [Clean Water] Act’s protections and by making implementation of the

Act more difficult,” while also impos[ing] economic burdens and costs upon the

States and harm[ing] their proprietary interests” (Complaint 2018, 4). Litigation

over the Clean Power Plan also remains active.

Aside from litigation, states and municipalities are taking a variety of steps

toward enhancing environmental protection. After the Trump administration

announced withdrawal from the Paris Climate Agreement, numerous governmental

entities pledged support for the agreement (Jordans and Thiesing 2017). At the

state level, California continues to lead the way toward enhanced environmental

protection, aggressively pursuing emissions cuts while outlining new strategies in

areas such as renewable power and transportation (e.g., Plumer 2017). Legislative

leaders in Oregon are hoping to pass a cap on greenhouse gas emissions in 2019

(Selsky and James 2018). And while the effort failed, Washington’s Governor Jay

Inslee pursued “the nation’s first tax on planet-warming carbon dioxide pollution”

in what may have been a play for visibility as a Democratic candidate for president

in 2020 (Davenport 2018). At the municipal level, New York City sued oil

companies such as BP, Chevron, and ExxonMobil to recover for alleged past and

future injuries resulting from company actions that may have contributed to

climate change (Mooney and Grandoni 2018).

The administration’s efforts to drill for oil and gas have also generated

federalism controversies. In January 2018, the Trump administration announced a

proposal to permit drilling for oil and gas in various waters comprising the outer

continental shelf. The proposal was met with immediate disapproval from various

state leaders, and Interior Secretary Ryan Zinke emphasized that “states, local

communities and congressional delegations will all have a say” (Fears 2018). A few

days later, Secretary Zinke met with Florida’s Republican Governor Rick Scott,

who earlier announced opposition to the proposal, and declared the state “unique”

and “off the table” with respect to coastal drilling (Bousquet 2018). This exemption

led politicians from other states to seek exemptions, and several Democrats alleged

that the disparate treatment was a result of partisan divergence rather than

Florida’s unique circumstances (Daley 2018). The administration subsequently

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walked back the promise of an exemption for Florida, but the debate continues

and numerous states are exploring legal efforts to frustrate the proposal’s

implementation (Muoio and French 2018).

As John Freemuth details in this issue, public lands have also been a hotbed for

debate concerning federalism and the environment. Upon taking office, President

Trump ordered review of twenty-seven national monuments designated since 1996

under the Antiquities Act (Eilperin 2017). Several public lands designations by

President Obama proved particularly controversial. In December 2017, President

Trump dramatically reduced the size of two Obama-era designations in Utah—

Bears Ears and Grand Staircase-Escalante—citing the importance of local control

(Gonzales, Siegler, and Dwyer 2017). Subsequently, evidence from a public records

request litigated by The New York Times revealed that a desire to open certain

public lands to oil and gas drilling motivated the decisions (Lipton and Friedman

2018). While litigation over the scope of presidential power to shrink designations

under the Antiquities Act continues, the administration continues to review public

lands boundaries for reshaping.

The Supreme Court The judiciary remains an active arena for federalism. In its 2016 Term, which

spanned October 2016 through June 2017, the Supreme Court did not issue any

decisions fundamentally altering core areas of federalism jurisprudence such as

commerce or the Tenth Amendment. Nonetheless, numerous decisions have

important federalism implications. With the Court returning to full strength in

April 2017 after Justice Neil Gorsuch’s confirmation, it is poised to address a

number of critical questions concerning federalism during its 2017 Term. While

this section focuses on the Supreme Court, the reservoir of percolating issues is

well stocked. As Nolette and Provost demonstrate in their article for this issue,

state attorneys general remain active participants in the judicial arena, challenging

various executive branch actions. Immigration and environmental policymaking

are areas where important litigation is likely to reach the Court in the near future

as we discussed previously. The rest of this part of the article discusses decisions

implicating federalism from the Court’s most recently completed term as well as

important pending cases in its current term.

The 2016 Term

One consequential case joined the issues of federalism, race discrimination, and

housing policy. In Bank of America v. City of Miami, 137 S. Ct. 1296 (2017), the

Court allowed the city of Miami to bring suit against two banks for alleged

violations of the Fair Housing Act (FHA). Miami argued that Bank of America and

Wells Fargo issued riskier mortgages to black and Latino customers in violation of

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the FHA, resulting in harm to the city as a result of factors such as decreased tax

revenue and increased spending on municipal services as a result of foreclosures.

While it is common for states and municipalities to sue on behalf of their citizens

as parens patriae, Miami alleged that it was an “aggrieved person” under the FHA.

The Court held five-three that the city’s alleged injuries were within the “zone of

interests” the statute was designed to protect. Although the Court remanded the

case for reconsideration of whether the banks’ alleged discriminatory lending

practices actually caused the city’s financial injuries, allowing municipalities to seek

recovery under the FHA has important federalism implications.

The Court decided two important redistricting cases. These cases demonstrated

the Court’s willingness to grapple with redistricting and help set the stage for what

promises to be an active 2018 on this front as discussed in more detail below. In

Cooper v. Harris, 137 S. Ct. 1455 (2017), the Court held by a five-three vote that

two of North Carolina’s congressional districts were drawn to pack-in black voters

in violation of the Fourteenth Amendment’s Equal Protection Clause. North

Carolina argued that one of the district’s boundaries nonetheless satisfied strict

scrutiny because it was drawn to satisfy the Voting Rights Act (VRA)—an

argument the Court rejected. Writing in dissent, Justice Alito suggested that “if a

court mistakes a political gerrymander for a racial gerrymander, it illegitimately

invades a traditional domain of state authority, usurping the role of a state’s

elected representatives” (1490). Importantly, Justice Thomas provided a fifth vote

for the majority.

In Bethune-Hill v. State Bd. Of Elections, 137 S. Ct. 788 (2017), the Court

considered whether twelve Virginia legislative districts explicitly drawn to create a

black voting-age population of at least 55 percent violated the Fourteenth

Amendment’s Equal Protection Clause. The three-judge district court upheld the

constitutionality of each district. With respect to one of those districts, the Court

held that the state’s effort to comply with the VRA was sufficient for satisfying

strict scrutiny. With respect to the other eleven districts, however, the Court held

that the three-judge district court panel applied the wrong test and remanded for

reconsideration. Specifically, the Court clarified two points of law. First, it noted

that a plaintiff need not show actual conflict between a redistricting plan and

traditional redistricting principles; rather, racial predominance can be shown

through evidence with respect to legislative purpose or more circumstantial

evidence concerning district lines or demographics. Second, the Court held that

analyses regarding racial predominance in line drawing should be holistic rather

than limiting the consideration of racial motive to the extent that plaintiffs identify

deviations from traditional redistricting criteria specifically attributable to race.

The Court decided several preemption cases, but none make a major

contribution preemption jurisprudence. In Howell v. Howell, 137 S. Ct. 1400

(2017), the Court held that the Uniform Services Former Spouses’ Protection Act

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preempts a state court’s order treating a portion of retirement pay waived to

receive disability benefits as community property for division in divorce. In

Kindred Nursing Centers v. Clark, 137 S. Ct. 1421 (2017), the Court held that the

Federal Arbitration Act preempted a state court decision refusing to recognize the

validity of arbitration agreements executed by individuals who held power of

attorney, when federal law otherwise requires such agreements to be treated the

same as other contracts. And in Coventry Health Care of Missouri v. Nevils, 137 S.

Ct. 1190 (2017), the Court held that the Federal Employees Health Benefits Act

preempts state law prohibiting private carriers providing insurance to public

employees under the Act from seeking reimbursement (i.e., recovering payment

received from another entity) and subrogation (i.e., transfer of a right to a third-

party payment to the insurer who can then pursue recovery) after an insured wins

judgment from a third party. All judgments were unanimous except Kindred

Nursing, where Justice Thomas adhered to his view that the Federal Arbitration Act

does not apply in state court proceedings.

With respect to decisions affecting state actions and policymaking, the Court

decided several cases with First Amendment implications. In Packingham v. North

Carolina, 137 S. Ct. 1730 (2017), the Court unanimously invalidated a state law

making it a felony for registered sex offenders to access a social networking site

known to permit use by minors. Although the Court recognized the state’s

significant interest in protecting minors from sexual exploitation, it found that

North Carolina’s regulatory approach was too broad. In Expressions Hair Design v.

Schneiderman, 137 S. Ct. 1144 (2017), the Court considered the validity of a New

York law prohibiting sellers from imposing a surcharge on credit card transactions

while allowing the economic equivalent of offering a cash discount. Whereas the

lower court held that the law permissibly regulated conduct as opposed to speech,

the Court unanimously held that the law regulated speech by dictating how

businesses communicate with respect to the discount/fee. However, the Court

sidestepped the underlying constitutional question, remanding the case for

reconsideration in light of the speech versus conduct distinction. This “quarter-loaf

outcome” (1153), as Justice Sonia Sotomayor put it in a concurrence in the

judgment joined by infrequent ally Justice Samuel Alito, may have reflected

division on the underlying merits question absent a ninth justice. Turning to the

religion clauses, in Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012

(2017), the Court invalidated a state agency’s decision to categorically deny

churches access to grant money to purchase recycled tire material for playgrounds.

Although the agency argued that its refusal was dictated by a state constitutional

provision prohibiting any money from being “taken from the public treasury” and

given “directly or indirectly in aid of any church” (2017, quoting the Missouri

Constitution), the Court held seven-two that denial of access to monies otherwise

available on a general basis violates the Free Exercise Clause.

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The Court also addressed an important question at the intersection of property

rights and environmental protection—with widespread implications for states and

municipalities. At issue in Murr v. Wisconsin, 137 S. Ct. 1933 (2017), was how to

define the relevant unit of property when assessing a regulatory takings claim. As

opposed to state seizure of property in a traditional takings dispute, a regulatory

takings dispute arises when a landowner attributes government action to a loss in

property value or economic use. The plaintiffs in Murr owned two adjacent lots

abutting a river, and wanted to sell a single 1.25 acre lot. A regulation dictated that

at least 1.0 acre be suitable for development to sell one of two commonly owned

adjacent lots, but after unsuitable areas were subtracted pursuant to regulations

designed to protect the river area plaintiffs were left with a 0.5 acre lot for

development purposes. After being denied a variance by the county board,

plaintiffs sought recovery for a regulatory taking. Finding that plaintiffs retained

options for land use in the adjacent lots, the Wisconsin Court of Appeals held that

the regulations did not deprive plaintiffs of all or substantially all economic value

in the property. Plaintiffs, however, argued that the court improperly calculated

value by combining both parcels rather than focusing on the parcel they were not

allowed to sell.

States were active as amici in Murr. Eight states argued that aggregating the

adjacent lots for valuation purposes was improper, preferring to base the decision

on the fact that state law joined the parcels for development purposes. They

contended that their interests as amici were “at its apex” due to the potential

impairment of property rights for “citizens vis-a-vis the States” and “States as

against the federal government” (Brief for Nevada et al. as Amici Curiae 2016, 1).

Nine states, meanwhile, argued for aggregation, contending that their interests lie

in balancing property rights with a desire to “protect the environment” and

“ensure that development occurs in a balanced manner, benefiting both property

owners and the larger community” (Brief for California et al. as Amici Curiae

2016, 1). State and municipal interests such as the Council of State Governments,

National Association of Counties, National League of Cities, and U.S. Conference

of Mayors also filed a joint amicus brief for the respondent. In a five-three

decision, the Court ruled for the respondent and proposed a multifactor test to

guide future decisions that includes considering how property is treated under state

law, the property’s physical characteristics, and the land’s prospective value.

Writing in dissent, Chief Justice John Roberts lamented that the new test

“compromises the Takings Clause as a barrier between individuals and the press of

the public interest” (1956).

Several of the Court’s decisions have implications for how states implement the

death penalty. The Court granted certiorari in McWilliams v. Dunn, 137 S. Ct. 1790

(2017), to determine whether a prior precedent clearly dictated that states must

afford indigent defendants meaningful expert assistance independent of the

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prosecution. In what a four-justice dissent called “a most unseemly maneuver”

(1802), the five-justice majority sidestepped this question but found that Alabama’s

provision of mental health assistance during the underlying capital proceedings

“fell . . . dramatically short” of the constitutional minimum (1801). In Moore v.

Texas, 137 S. Ct. 1039 (2017), the Court vacated a Texas Court of Criminal

Appeals decision to disregard contemporary guidelines for determining whether a

capital defendant is intellectually disabled in favor of guidelines adopted by the

Texas court in 1992. And In Buck v. Davis, 137 S. Ct. 759 (2017), the Court

granted habeas relief for ineffective assistance of counsel after a psychologist

testifying for the defendant, who is black, claimed that the defendant’s race was

“know[n] to predict future dangerousness” (769), thus aiding the prosecution in

demonstrating a necessary element for a death sentence, which the jury

subsequently imposed.

The Court also continues to actively use its “shadow docket,” which refers to

“a range of orders and summary decisions that defy its normal procedural

regularity” (Baude 2015, 1), to dispose of important issues, and several of last

term’s summary decisions impact states. In Bosse v. Oklahoma, 137 S. Ct. 1

(2016), the Court unanimously vacated a decision by the Oklahoma Court of

Criminal Appeals stating that the Court had “implicitly overruled” (2) a prior

precedent holding that the Eighth Amendment prohibited the use of victim

impact evidence unrelated to the crime at a capital sentencing hearing. The Court

also unanimously vacated a decision by the Nevada Supreme Court in Rippo v.

Baker, 137 S. Ct. 905 (2017), which it deemed had applied the wrong legal

standard in declaring that a request for judicial recusal due to bias could not go

forward absent evidence of actual bias, whereas the Court had previously

indicated that such a claim could go forward under the Fourteenth Amendment’s

Due Process Clause when “the probability of actual bias . . . is too high to be

constitutionally tolerable” (907). And in Pavan v. Smith, 137 S. Ct. 2075 (2017),

the Court summarily reversed an Arkansas Supreme Court ruling that a state

requirement to list the name of a mother’s male spouse on a birth certificate need

not be applied to same-sex couples. In a six-three per curiam decision, the Court

held that this was included in the “constellation of benefits” (2078) the state

linked to marriage and was thus encompassed by the Court’s ruling in Obergefell

v. Hodges, 135 S. Ct. 2584 (2015). Justice Gorsuch dissented, joined by Justices

Alito and Clarence Thomas, arguing that “the strong medicine of summary

reversal” (2080) is not warranted where the outcome is not clearly dictated by

Obergefell. Although the dissenters did not reach a conclusion on the merits,

Justice Gorsuch’s opinion offers an early signal of his position on questions

concerning Obergefell’s application. On the other side, that Chief Justice Roberts

joined the majority disposition is notable.

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Percolating Issues

With a full Court for a complete term for the first time since Justice Antonin

Scalia’s passing, the 2017 Term promises to be a blockbuster compared to recent

years. Murphy v. National Collegiate Athletic Association, 16-476 (2016), is perhaps

the most important case with respect to core federalism doctrine. It considers

whether a federal law prohibiting states from authorizing sports betting

unconstitutionally commandeers New Jersey—in violation of the Tenth

Amendment and broader constitutional structure—in the wake of the state

partially repealing its sports betting law. Perhaps the most salient case more

generally, which also has important federalism implications, is Masterpiece

Cakeshop v. Colorado Civil Rights Commission, 16-111 (2016). After being held on

the Court’s docket for nearly a year, this case considers whether a state’s

antidiscrimination law can be used to require a custom cake maker to provide

service to a same-sex couple under the First Amendment’s Speech and Free

Exercise Clauses. In addition to the case’s First Amendment implications, it

promises to further the Court’s development of jurisprudence on issues concerning

discrimination on the basis of sexual orientation.

The Court’s 2017 Term includes several other First Amendment cases with

policy implications for the states. In Janus v. American Federation of State, County,

and Municipal Employees, No. 16-1466 (2017), the Court revisits the issue of

whether mandatory union fees violate the Speech Clause, a question on which it

deadlocked in 2016 after Justice Scalia’s passing. Thus, Justice Gorsuch’s vote will

presumably be decisive. In Minnesota Voters Alliance v. Mansky, No. 16-1435

(2017), the Court considers whether a Minnesota law prohibiting political badges,

buttons, and insignia from being worn around a polling place on election day

violates the Speech Clause. In National Institute of Family Life v. Becerra, 16-1140

(2017), the Court will address whether a California law requiring antichoice, state

regulated clinics to provide information on issues such as state-funded abortion

services violates the Speech and Free Exercise Clauses. The Court considers whether

a plaintiff alleging retaliatory arrest under Section 1983 must plead and prove the

absence of probable cause in Lozman v. City of Riviera Beach, 17-21 (2017), a

question that arises out of a long-running dispute between a resident and city

council. In Benisek v. Lamone, 17-333 (2017), the Court considers a First

Amendment retaliation claim in the context of a Maryland redistricting dispute.

Several other redistricting and voting cases are on the Court’s current docket. With

respect to voting, Husted v. A Philip Randolph Institute, 16-980 (2017), examines

whether Ohio’s decision to trigger removal from its voter file after two years of

inactivity is consistent with federal law. The most prominent redistricting cases are Gill

v. Whitford, 16-1161 (2017), which raises a variety of questions concerning a state

legislative redistricting plan in Wisconsin, and Benisek v. Lamone, which addresses

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claims of partisan gerrymandering regarding a congressional redistricting plan in

Maryland. In addition to the substantive questions presented in these cases, the Court

is considering whether partisan gerrymandering claims are justiciable—an issue that

could have important implications for future litigation. The Court turns to the subject

of racial gerrymandering in Abbot v. Perez, 17-586 (2017). Supporting Texas, seven

states filed a joint amicus brief urging the Court to note probable jurisdiction and

reverse the lower court’s decision invalidating certain state congressional districts,

warning that the district court decision could “throw[] elections into disarray” and

have “widespread implications for States entering the 2018 election cycle and the

coming 2020 redistricting cycle, destabilizing the democratic system in all States” (Brief

for Louisiana et al. as Amici Curiae 2017, 1). Aside from these docketed cases, the

Court also entered a partial stay of a lower court’s decision invalidating districts in

North Carolina. However, the Court declined to stay a Pennsylvania Supreme Court

decision invalidating the state’s congressional map under the Pennsylvania

Constitution as the product of partisan gerrymandering.

Another case on the Court’s current docket worth watching for its federalism

implications is South Dakota v. Wayfair, 17-494 (2017). In Quill v. North Dakota,

504 U.S. 298 (1992), the Court reaffirmed a long-standing precedent that a state

violates the dormant Commerce Clause when requiring out-of-state companies

with no instate physical presence to pay taxes on sales to state residents. At issue in

Wayfair is whether the physical-presence rule, which emanates from cases

concerning the mail-order industry, should be jettisoned in an era where e-

commerce plays an integral role in the marketplace. In support of South Dakota’s

effort to overturn Quill, forty-one states filed a joint amicus brief arguing that the

status quo leaves them “in an increasingly untenable position,” depriving states of

“billions of dollars in tax revenue each year, requiring cuts to critical government

programs” (Brief for Colorado et al. as Amici Curiae 2018, 1).

Conclusion The key themes that characterized the state of American federalism in 2017–2018

included federal policy reversal, executive action, and state resistance. As we

observed in last year’s annual review, “unified government is not necessarily a

panacea for increased legislative production” (Goelzhauser and Rose 2017, 308).

With the Republican-controlled Congress largely sidelined by partisan infighting,

the Trump administration stepped into the vacuum, with wide-ranging

consequences for both the Obama administration’s legacy and intergovernmental

relations. In the absence of federal legislation on health care reform, immigration

reform, and a host of other pressing issues, federal policy change emanated

primarily from the White House. In a sense, these developments reflect the

continuation of Obama-era trends; however, what is striking in the current

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political environment is that executive action continues to be so prominent in the

context of unified party control of government.

State resistance to the Trump administration’s agenda also took place largely

outside the legislative arena. Taking a cue from the Republican attorneys general

who had challenged the ACA, EPA rules, and other Obama-era policies in court,

Democratic attorneys general stepped into the fray in 2017–2018 with scores of

legal actions against the Trump administration, many of which were still making

their way through the courts at the time of writing. “Once a staid backwater

mostly seen as a political stepping stone,” the office of the state AG has emerged as

a major bulwark, playing “among the most pivotal roles slowing and stopping the

march of the Trump agenda” (Neuhauser 2017). The prominent role of

Democratic state attorneys general in fighting administration policies is, in part, a

function of the Democratic Party’s limited control of state legislatures and

governorships—something that could change following the 2018 election.

Notes The authors are listed in reverse alphabetical order but contributed equally to the article.

The authors thank John Dinan and two anonymous referees for helpful comments on earlier

drafts. S.R. thanks Ellen Lempres for research assistance and the Rose Institute of State and

Local Government for support.

1. Colorado, Washington, Alaska, Oregon, California, Nevada, Maine, Massachusetts, and

Washington, DC, legalized recreational use of marijuana through ballot initiatives.

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