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5 Ways the Tensions of Federalism Will Play Out in 2023

From public health to climate change to immigration, there will be plenty of challenges for our federal system to contend with. But the tensions will be more about social policies and regulation than about money.

Lake Mead's low water level
Lake Mead’s “bathtub ring” shows how far the level of the lake, which supplies water for 40 million people in the West, l has dropped in recent decades. States missed a federal deadline to come up with a plan to deal with the region’s water crisis.
(Luis Sinco/Los Angeles Times/TNS)
The year that just ended proved to be a wild and woolly one for federalism, with some issues and policies percolating down to states and localities from Washington while others boiled up through our federal system. The year began with yet another COVID-19 wave, which severely taxed state and local public health agencies without providing them with more cash. Meanwhile, however, state and local governments welcomed billions of dollars flowing from the Treasury for infrastructure and a host of other programs. And then there was the Supreme Court’s Dobbs v. Jackson ruling, pushing the fundamental and explosive decisions about abortion back to the states.

As we ring in the new year, one thing is clear: 2023 is sure to be another wild one as we continue the endless effort of trying to sort out the roles each level of government will play. Here are five predictions for this year; I’ll let you make your own — and keep score on mine:

1. COVID-19 will surge, but this time it’s bringing its friends. In early December, hospital beds were more full than at any time in the entire pandemic, except for January 2022 when omicron overwhelmed the health care system. This time, though, it was from the combination of COVID-19, influenza and the respiratory syncytial virus.

So state and local governments are starting off their year struggling to manage yet another surge in hospitalizations, especially after holiday gatherings spread the triple threat of all three viruses. So I predict that 2023 will prove an important lesson for the future: Just as exhausted local public health officials struggle to get back on their feet after three years of COVID-19, they’ll need to develop a long-term plan for dealing with what is now a long-term problem, and they’ll be doing it without much help from Washington.

2. SCOTUS will be back. This time, however, the U.S. Supreme Court won’t be shaking up state governments as much as it did with Dobbs. In late spring, the court will issue its ruling in Moore v. Harper, a case set up to trigger a review of the power of state legislatures over redistricting and other election-related matters. In North Carolina, the state Supreme Court tossed out the redistricting map drawn by the Republican-controlled Legislature as an illegal gerrymander. Republican legislators took the case to the U.S. Supreme Court in an attempt to overturn the state ruling, arguing that, constitutionally, only the legislature has the power to set the rules for elections.

The SCOTUS liberal block was united in opposition to the state legislators, because they would remove a check on legislative power. That was expected. But Chief Justice John Roberts, as well as conservative Justices Amy Coney Barrett and Brett Kavanaugh, also signaled that they might not be willing to sign on to the state Republicans’ position. So 2023 will, I predict, see the court backing off of the revolution-to-precedent that came with Dobbs.

3. The East gets wetter. It’s far too early to predict the 2023 hurricane season. That won’t begin until spring. But we’re deep into a big and longer-term change in major storms. As NASA’s Global Climate Change Center reports, since the 1980s “there have been more storms, stronger hurricanes, and an increase in hurricanes that rapidly intensify.” This was, of course, just what happened to Hurricane Ian, which went from a tropical storm on a Sunday to a Category 3 hurricane on Tuesday, and then to nearly a Category 5 by Wednesday morning.

If anything, the oceans aren’t going to get cooler any time soon, and that means that the relentless march of big storms will only continue. I predict that 2023 will see the transformation from merely responding to individual storms to building capacity for dealing with this new and inescapable reality. That means a more agile federal strategy and a shift at the state and local level to more resilience, with new thinking about zoning, construction standards and integrated planning across all local functions. Big storms can’t be approached simply as a one-off from routine functions.

4. The West gets drier. Over the last generation, the West has seen less rain and snow. The flow of the Colorado River is down by roughly 20 percent in the last century. Reservoirs are only a third full, and Lake Mead, which supplies water for 40 million people, is down 150 feet, enough to reveal corpses believed to have been dumped into the once-full lake by the Mafia. A bit farther west, the forest fire season has become virtually year-round.

J.B. Hamby of California’s Imperial Irrigation District was asked how the region was going to deal with the water crisis. “I think the honest answer is right now there is no plan,” he replied. The federal government set a deadline for the states to come up with one last year, but the states missed it. I predict that they won’t do any better in 2023.

5. Immigration heats up — again. The incoming chair of the House Committee on Oversight and Reform, Rep. James Comer (R-Ky.), has signaled that immigration — specifically, control of the southern border — will be near the top of his list of investigations. In a Wall Street Journal op-ed, he criticized the Biden administration for creating “the worst border crisis in U.S. history” and failing to prevent “the flow of deadly drugs such as fentanyl into American communities.”

That leads to a two-part prediction for 2023: The new Republican-controlled House will turn up the heat on immigration issues. But Republican governors, especially Texas’ Greg Abbott and Florida’s Ron DeSantis, will jostle for control of the spotlight. Not much will happen, but the glare of the klieg lights will be blinding.

And here’s a bonus prediction about something else that won’t happen: The good old days where budget battles dominated state legislatures and local governments will take a back seat in 2023. It’s not that they won’t be important — it’s always a good time to fight about money. But it will be a year when Republicans at every level of government will line up instead behind social policies, from abortion to immigration to library books to crime. Democrats, meanwhile, will try to advance policies like California’s positions against big oil and “forever chemicals.” Rules, not money, will be the basic currency in 2023.

So next year about this time, get out your scorecards and see if I’m right. But one prediction is sure to be correct: With the presidential race gearing up and governors looking to nose their way into both parties’ fields, with mayors seeking to make their own national mark, and with the Supreme Court once again in the middle of federalism battles, 2023 is sure to be a big year for sorting out federal, state and local politics and policies.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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