How is federalism faring in the face of Trump’s executive orders?

Authored by Tony Woodlief

Much of the coverage of President Trump’s flurry of Executive Orders in the first 48 hours of his return to office focuses on whether the outcomes intended by these orders are desirable. In light of the beating federalism has taken for decades, we at the Center for Practical Federalism decided to take a different approach, and ask not whether the desired outcomes are good or bad, but how specifically they affect state and local authority. Here is our assessment of the Executive Orders President Trump has issued that have an impact on federalism.

Initial Recissions of Biden Administration Executive Orders: Previous Executive Orders rescinded by this Order sparked federal policies that burdened states in numerous ways, like requiring more extensive data collection, mandating changes to state environmental plans, demanding adoption of expansive transgender policies, expanding OSHA workplace safety requirements, and placing numerous strictures on federal grants that incentivized states to pursue different priorities than they would have otherwise chosen. Insofar as their recission alters such federal agency practices, this move shifts more authority to states and communities.

👍🏼 👎🏼 Unleashing American Energy: Key provisions concerning states in this order reduce subsidies that had unduly distorted states’ markets and governmental budgets, require federal agencies to review whether their policies and practices have suppressed energy development in the states, and order a review of public lands withdrawals. This last is especially important in states where large swaths of land are controlled by federal agencies.

The order’s directive to terminate “state emissions waivers that function to limit sales of gasoline-powered automobiles” re-opens a long-running dispute about whether Clean Air Act (CAA) provisions enabling California to enact more stringent air-quality regulations—and for other states to subsequently adopt those measures—extend beyond meeting the needs of the state’s “compelling and extraordinary conditions” to the broader goal of reducing greenhouse gas emissions. Federal agencies will have to proceed with caution to ensure that in terminating certain waivers, they don’t overstep Congress’s intention, in crafting CAA, to allow California and other states flexibility and autonomy to pursue more stringent standards. The best outcome, from the standpoint of both clarity and maintaining a proper state-federal balance, would be for Congress to determine whether CAA’s waivers extend to global-warming mediation, as well as to set a boundary for how much impact such waivers are allowed to have on other states and affected industries.

Realigning the Refugee Admissions Program: This not only aims to reduce the burdens placed on states and communities by large influxes of migrants in recent years, it promises to give states “greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions.”

👍🏼 👎🏼 Altering California Water Management Practices: This order directs the federal departments of Commerce and Interior to resume plans proposed during the first Trump Administration to channel more northern California water to central and southern parts of the state. These decisions are within the purview of the agencies’ authorities, though agencies are also directed in a variety of Congressional statutes to work wherever possible in a cooperative manner with state and local authorities and private stakeholders.

The California governor sued to stop this plan when it was last attempted, but the competency of California’s water management practices have been under heavy scrutiny, so it will be interesting to see if the state sues again to block federal agencies from implementing this order.

👍🏼 👎🏼 Restoring the Federal Death Penalty: Many provisions in this Order seek to empower states to more easily apply the death penalty if they so choose, like expediting consideration of state requests for federal certification of their appeals processes, and ensuring they have access to drugs necessary for executions. It also calls, however, for the U.S. Attorney General to seek Federal jurisdiction for every capital crime committed against a law-enforcement officer, or by an illegal alien. In this it contributes to a decades-long trend of federal agencies expanding their prosecution of crimes that are the purview of state courts.

Beautifying Federal Architecture: This Order requires that federal public buildings “respect regional, traditional, and classical architectural heritage,” which implies greater deference to the architectural designs and practices of American communities.

👍🏼 👎🏼 Declaring National Energy Emergency: By invoking, among other powers, the Defense Production Act, this order seeks to facilitate increased energy production on federal lands, and directs federal agencies to expedite petitions for exemptions from Endangered Species Act rules by state governors and others seeking to expand energy production. A provision in this order could be interpreted by agencies to mean that they’re authorized to expand energy production not just on federal lands, but through use of eminent domain on state and local landholdings.

👍🏼 👎🏼 Penalizing and Deporting Illegal Immigrants: Immigration policy is a federal matter, and this order tightens previously permissive federal practices. Its provisions also abide by the legal precedent that while federal laws pre-empt state laws, federal agencies cannot compel state or local officials to implement those laws. Some agencies may interpret this order’s goal of restricting federal funds from flowing to “sanctuary cities” as license to cut off funding to the point that they transgress federal law that restricts the ability of agencies to attach conditions to federal grants. This law requires, for example, that the grant’s conditions be made known before it’s disbursed, and that these conditions be germane to the Congressional statute that authorized the spending.

Unleashing Alaskan Resources: This Order draws heavily on a set of recommendations prepared by Alaska Governor Mike Dunleavy’s team to give state officials greater authority over the management of their state’s resources, and thus constitutes a clear advance of federalism in the Last Frontier.

The Trans Alaska Pipeline makes it way across the many miles of Alaska. The pipeline carries oil from Northern Prudoe Bay to the Port of Valdez in the South.

👍🏼 👎🏼 Re-Establishing a Two-Sex Understanding of Gender: The chief effect of this Order on state authority is to eliminate a wide swath of federal regulation and guidance that pressured public schools and other state and local programs receiving federal funds to follow practices like allowing biological males to play in women’s sports and access women’s locker rooms, prison facilities, and abuse shelters. While the Order focuses on eliminating these pressures, there is the possibility it will foment regulatory changes that pressure state officials not to continue such practices even if they want to, such as the Order’s directive to the Department of Housing and Urban Development to “submit for public comment a policy protecting women seeking single-sex rape shelters”—which implies a future rule may bar state recipients of federal shelter funding from allowing biological males to shelter with women. The Order also directs the U.S. Attorney General to formulate rules for workplaces and other entities falling under the domain of the Civil Rights Act of 1964 that would protect “the freedom to express the binary nature of sex and the right to single-sex spaces,” which likewise could restrict the authority of state and local governments to pursue Progressive policies.

👍🏼 👎🏼 Altering Historic Names: This Order establishes procedures for naming federal properties after “visionary and patriotic Americans.” It also immediately changes two names. One renames the Gulf of Mexico as the Gulf of America. This is a matter of international cooperation that is the federal government’s purview. The other restores Alaska’s Denali to the name it held from 1917-2015: Mount McKinley. This is also within the federal purview, because this is a national park. While the federal government has the legal power to name national lands, it’s worth noting prior efforts by Alaska’s elected representatives to recognize Denali, a name they also apply to state park lands in its vicinity. It will be interesting to see if Alaska’s current elected officials likewise prefer to keep the Denali name. The order does direct the Secretary of the Interior to “work with Alaska Native entities and state and local organizations to adopt names for landmarks to honor the history and culture of the Alaskan people,” which indicates willingness to take local desires into account.

Ending Race-Conscious Practices: This order directs federal agencies to eliminate race-conscious requirements attached to a variety of federal regulations, consent orders, and grants directed at states. The order also rescinds Biden Administration EOs that had been the basis for multiple agencies’ policies and guidance focused on “environmental justice,” and the imposition of race, ethnicity, and gender preferences in federal hiring, among federal contractors, and in grant distributions. The order also directs agencies to identify “potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”

Likewise, state educational institutions, from public schools to universities, may be investigated if they appear to employ race-conscious practices that run afoul of the 2023 Supreme Court decision ending affirmative action. Notably, the Order does not prohibit state or local governments or employees of their educational institutions from “advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.” Because the order aims to enforce Congressionally-created statutes prohibiting discrimination, rather than impose an agency- or administration-created preference, it is consistent with the practice of federalism.

Tony Woodlief is State Policy Network’s senior executive vice president and senior fellow for SPN’s Center for Practical Federalism.

[Editor’s note: Some content in this article was revised and updated on Feb 14, 2025.]

Authored by:Tony Woodlief

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