Two Strategic Federalism Opportunities Available Right Now
By Jennifer Butler, February 18, 2026
The mission of State Policy Network’s Center for Practical Federalism is to make federalism more than a talking point by advancing policies that ensure governance happens at the state and local levels, not by administrative decree from Washington, D.C.
Right now, our national network of state leaders is facing a rare alignment:
An administration passionate about dismantling the deep state.
A Congress looking for tangible, near-term wins.
A growing appetite, even beyond traditional allies, to rein in Washington D.C.
There are two distinct reforms where this network can actively engage. They are separate pathways, but they reinforce one another.
Opportunity #1: A Congressional Review Act Strategy to Rein in Guidance
Federal courts consistently say guidance documents are nonbinding. In practice, agencies have used guidance as the basis for investigations, enforcement pressure, settlement leverage, and litigation posturing.
We now have a concrete opportunity to restrict the Department of Justice’s (DOJ) weaponization of guidance for future administrations.
Background
In the final days before the change in administration, President Biden’s DOJ finalized a “guidance processes” rule that permits enforcement actions based on guidance documents. The rule was finalized just days before President Trump took office.
Because the rule has not properly started the Congressional Review Act (CRA) clock, Congress has a rare opportunity to use the CRA to rescind it and prevent future administrations from reviving the same enforcement strategy.
What the Congressional Review Act Does
The Congressional Review Act allows Congress to overturn recently finalized federal rules through a simple majority vote in both chambers, followed by presidential signature.
If a rule is rescinded under the CRA, the rule is nullified and the agency is prohibited from issuing a substantially similar rule in the future without new congressional authorization.
It is one of the few tools that permanently locks in reform.
Why States Should Care
When agencies treat guidance as de facto law, states are forced into defensive litigation after the fact rather than participating in transparent rulemaking upfront. This dynamic undermines state sovereignty and expands federal leverage without statutory authority.
Recent examples of guidance being used as an enforcement lever include:
Election audits: DOJ warned certain state audits could violate federal law and signaled possible enforcement action.
Voter roll maintenance: DOJ issued new interpretations of federal law restricting the timing of basic voter roll maintenance and then relied on them in suing a state.
Environmental justice: DOJ and EPA issued “strategy” and civil rights guidance documents and tied them to investigations and lawsuits.
Climate and air permitting: Agencies issued climate and modeling guidance and then pressured states to align permitting decisions with those documents.
The CRA presents a rare chance to prevent future weaponization of subregulatory tools.
Opportunity #2: A New Executive Order on Federalism
Before issuing major regulations, federal agencies are required to follow certain procedures, including analyzing how their actions affect States. This federalism review requirement was developed under President Ronald Reagan, who emphasized that federal power should displace State authority only when clearly authorized by Congress.
That standard was significantly weakened under President Bill Clinton. His Executive Order 13132, still in effect today, reduced federalism review to a procedural exercise rather than a meaningful constraint. As a result, today the Trump administration is operating under the Clinton-era framework.
In practice, EO 13132 has become a check-the-box exercise. Agencies can:
Declare a rule has “no substantial federalism implications.”
Acknowledge State costs elsewhere in the rule.
Proceed anyway.
States are then left to challenge the rule in court.
Recent rulemakings show this pattern repeating:
OSHA vaccine mandate: The agency acknowledged limits on State authority but claimed national scope justified preemption. The Supreme Court ultimately halted the rule.
Title IX rewrite: The Department of Education concluded there were no meaningful federalism implications despite imposing new obligations on State schools. Multiple courts enjoined enforcement.
Clean Power Plan: EPA recognized major State restructuring burdens yet treated consultation as sufficient. The Supreme Court later confirmed EPA lacked authority for its core approach.
Overtime rule for State employers: The Department of Labor admitted significant payroll costs for States but concluded the rule had no federalism implications. States sued and secured injunctions.
Waters of the U.S.: Agencies characterized expanded federal jurisdiction as merely definitional. The Supreme Court later rejected the broad interpretation.
Agencies issue sweeping rules, certify federalism compliance, and courts, not the Executive Branch, end up enforcing constitutional limits.
The Solution
On the eve of America’s 250th anniversary, we have an opportunity to correct this structural weakness and reaffirm that our nation was formed by sovereign states, not the federal government.
We are encouraging the Trump administration to rescind President Bill Clinton’s federalism Executive Order and replace it with a new Executive Order that restores meaningful, enforceable federalism protections, including:
Require real, documented federalism analysis before rules move forward.
Require agencies to identify unfunded mandates on States.
Expand State flexibility and streamline waivers where allowed by law.
The administration is already focused on reining in Washington D.C., this is a practical, achievable step that would prevent future overreach before it happens, instead of relying on States to win emergency relief in court.
Interested in learning more? Contact Jennifer Butler to connect with policy experts that can assist with state-level waivers.
As a reminder, before engaging in any federal education and outreach activities, please ensure the opportunity aligns with your current strategy and seek legal counsel before weighing in on a specific piece of legislation. The IRS does not consider 501(c)(3) participation in the federal regulatory notice and comment process as lobbying.