For most of the United States’ history, politicians, political philosophers, and voters themselves have argued for, and against, the notion of states’ rights – the constitutional argument that, despite the existence of a national government, state governments should retain and possess a degree of sovereignty and autonomous governing power. While the history of federalism is the subject of volumes of anthologies, in the modern political era, one truth has been indisputable: Republicans tend to support states’ rights while Democrats generally favor a stronger federal government.
But then in a 2012 speech at Princeton University, the late Supreme Court Justice Antonin Scalia offered a curious observation. “Wringing your hands about states’ rights, forget it,” Scalia said. “They’re gone. Basically the federal government can do whatever it wants. Who’s going to protect the states? My court? Ha — we’re feds!”
Scalia declared states’ rights dead 13 years ago, and three legislative developments on Capitol Hill in recent years may demonstrate that the Republican lawmakers who are in control of Congress, along with the Trump administration, have no desire to bring them back — at least when it comes to matters of technology and environmental policy.
Data Privacy: GOP Bill Expected To Preempt State Laws
Back in February, House Committee on Energy and Commerce Chair Brett Guthrie (R-Ky.) and Vice Chair John Joyce (R-Penn.) announced the creation of a Republican-led working group that will draft federal data privacy legislation. The post-Memorial Day recess legislative session is likely to be taken up by debates over taxes and spending, but Reps. Joyce and Guthrie have promised to introduce data privacy legislation in the current Congress.
They could drop their bill sometime late this summer or early fall.
Of course, introducing legislation is much different than approving it in both chambers of Congress. In fact, Republicans and Democrats have been working to pass a data privacy bill for the better part of the last two decades. They have been unsuccessful because the two parties disagree on two major components.
The first is preemption. Republican lawmakers somewhat counterintuitively prefer a strong national regime for data privacy regulation that would limit the laws and regulations state policymakers can enact related to this matter. Indeed, when launching the group, Reps. Guthrie and Joyce said, “We strongly believe that a national data privacy standard is necessary to protect Americans’ rights online and maintain our country’s global leadership in digital technologies, including artificial intelligence.” (More on artificial intelligence in a moment.)
Republicans, and the industry advocates who have supported them, believe compliance for businesses across 50 different state frameworks is impractical, if not impossible.
Democrats, meanwhile, have been reluctant to embrace a national standard since they think it could weaken robust existing state regimes, including California’s, which many Democrats regard as the gold standard for U.S. data privacy law. Consumer groups and privacy advocates have sided with Democratic lawmakers.
The second issue on which the two parties disagree concerns lawsuits. As The Hill explained in February, “Democrats have long pushed for including a private right of action, which permits consumers to seek financial damages through court, but GOP leaders were concerned it could lead to too many attacks against small businesses by trial lawyers.”
In the meantime, according to the IAPP, which tracks data privacy legislation, “State-level momentum for comprehensive privacy bills is at an all-time high.” At last count, at least 19 states — from California to Nebraska to New Hampshire — have comprehensive data privacy laws already on the books. Several other states are considering them.
If Republicans are successful, these laws would be null and void.
Artificial Intelligence: State Regimes Create Confusion
As suggested above, Republicans also have demonstrated their intent for the federal government to override state laws when it comes to another matter of technology policy: artificial intelligence (AI).
As USA Today explained, nestled in the reconciliation package the House passed last week, also known as the One Big, Beautiful Bill Act (OBBBA), is a provision that would prevent implementation of new AI regulations in the U.S. states and would block dozens of states that already have laws on the books from enforcing them. According to USA Today’s count, more than 30 states and U.S. territories have approved legislation concerning AI and more than a dozen new regulatory proposals have been introduced in statehouses across the country in 2025.
Republicans’ arguments regarding state AI rules are similar to the ones they have made regarding data privacy: varying state laws are confusing and burdensome for technology companies to follow if they operate in multiple parts of the country. “Right now, there are over a thousand bills on the topic of AI regulation pending in state legislatures across the country,” Rep. Jay Obernolte (R-Calif.) argued during a committee markup of the proposal. “Imagine how difficult it would be for a federal agency that operates in all 50 states to have to navigate this labyrinth of regulation when we potentially have 50 different states going 50 different directions on the topic of AI regulation.”
Republicans also argue they need to guard against overregulation that could erode U.S. innovation into AI.
Not all Republicans are on board, however. Sen. Josh Hawley (R-Mo.) pushed back — on the grounds the provision would defy states’ rights. “I would think that, just as a matter of federalism, we’d want states to be able to try out different regimes that they think will work for their state,” Sen. Hawley told the Business Insider. “And I think in general, on AI, I do think we need some sensible oversight that will protect people’s liberties.”
Sen. Marsha Blackburn (R-Tenn.) also has expressed opposition to the OBBBA AI provision.
Sen. Hawley and Blackburn’s opinions on this issue may matter. Senate rules state that a budget reconciliation bill may concern only three types of issues: taxation, the federal debt and deficit, and government spending. The ban on AI regulation does not seem to have anything to do with any of those issues and, if the Senate parliamentarian rules as such, the AI provision would have to be taken out of the OBBBA in the Senate … unless Republicans are able to convince a majority of the chamber to keep the provision in.
That’s right: a simple majority vote can overcome the Senate’s budget reconciliation rules. Stay tuned on this issue, which will come up on the Senate floor in June.
California Emissions Mandates: Protecting Consumers Against State Bureaucratic Overreach
Republicans also have shown a willingness to override state laws regarding environmental regulation. In a 51 to 44 vote last Thursday, GOP lawmakers in the Senate approved legislation that would revoke a waiver the Environmental Protection Agency previously approved that allowed California to implement and enforce a de facto ban on the sale of gasoline-powered cars by 2035. The bill already has been approved by House lawmakers and it is expected to soon be signed into law by President Trump,
As Vox explained, “For nearly 60 years, California has enjoyed the ability to set its own standards governing air pollution from automobiles, as long as they’re more stringent than the federal government’s. This rule, written into the Clean Air Act, was meant to recognize the state’s long-standing leadership in regulating air emissions.”
GOP senators said they overturned the rule in order to protect California consumers from state government overreach.
“Despite the best efforts of unelected bureaucrats in California, the Biden administration, and congressional Democrats to shield this electric vehicle mandate from the will of the people, Congress has rejected California’s attempt to impose a mandate that would have eliminated consumer choice, increased prices, and killed jobs across the country,” argued Senate Environment and Public Works Chairwoman Shelly Moore Capito (R-W.Va.) in an op-ed.
Every Republican voted for the measure. One Democrat, Sen. Elissa Slotkin, a Democrat from Michigan who represents automakers and millions of autoworkers, voted with Republicans.
EPA Administrator Lee Zeldin made it clear exactly how far the legislation goes. As the Detroit Free Press reported, his office issued a statement noting the resolution “not only prevents California from implementing their attempt at EV mandate actions but ensures that they can never do something similar again.”
It appears Justice Scalia was right. At least when it comes to states’ rights to regulate technology and environmental matters, “they’re gone.”