Category: State Talk

A new grant program will provide Minnesota youth and young adults who were in the foster care system with financial aid to attend participating public, private or tribal colleges and universities.

The Fostering Independence Grant program is funded with $3.8 million authorized in the state’s 2021-22 budget (HF 7 of the 2021 special session). Awards can be used to cover tuition and fees, books, housing and transportation.

Students must be Minnesota residents under age 27 who are either already eligible for the state’s Education Vouchers for Former Youth in Foster Care program, or have been in the state’s foster care system at any time from age 13 whether that means placement in, or adoption from the system.

To be considered, students just fill out the Free Application for Federal Student Aid or the Minnesota Dream Act applications. Students who self-identify as having been in foster care (and who meet all eligibility requirements) will automatically have the Fostering Independence Grant factored into their financial aid packages.

In a June 9 press release from the Minnesota Office of Higher Education, Hannah Planalp, foster advocates program manager, said the new grant funding changes the calculation for the 80 percent of foster youths who want to go to college.

“That dream can be real now,” she said. “These grants will ease the burden of meeting basic needs so that fosters can follow the pathway that is right for them.”

The Ohio Reach scholarship program has similar eligibility for youth exiting the state’s foster system. It provides a $1,000 award per semester, renewable for two semesters, up to four years. The award can be used for tuition and fees, and books and supplies.

All states (and the District of Columbia) manage the federal Chafee Education and Training Voucher program, which offers students from foster systems up to $5,000 annually for post-secondary education or training. Those funds may be used for tuition and fees, books and housing. The Family First Prevention Services Act of 2018 made youth from foster care eligible from ages 14-26, and allows ETV funds to be used for 5 years total.

In passing HB 1123 last year, Indiana legislators gave themselves statutory authority to call an “emergency” session to address bills related to a governor-declared state of emergency.

Gov. Eric Holcomb vetoed the bill, saying the state’s constitution gives the governor sole authority to call a special session. When the General Assembly overrode his veto, Holcomb then sued the legislature, saying the bill “purports to grant the General Assembly, through its Legislative Council, a constitutional power granted exclusively to the governor.”

The legislature argued the bill was a permitted exercise of its constitutional authority to set its own schedule.

In June, the Indiana Supreme Court unanimously sided with Holcomb, ruling that HB 1123 was unconstitutional.

“Under our constitution, the General Assembly simply cannot do what the challenged law permits absent a constitutional amendment,” Chief Justice Loretta Rush wrote in the bench’s June 3 opinion.

Justices ruled the law violated the constitution’s separation of powers by allowing an emergency session to be set at a time when the legislature is out of session, which is “an authority conferred only upon the governor”; and further violated its “fixed-by-law” requirement by allowing a special session to be called via a simple resolution rather than a “properly enacted bill.”

The Indianapolis Star reported that in a related dispute, Holcomb hired private attorneys to handle his lawsuit — a move that Indiana Attorney General Todd Rokita tried to block, arguing only his office could represent the state in legal disputes. A lower court rejected Rokita’s position, but ruled HB 1123 constitutional, setting the stage for Holcomb’s appeal to the Supreme Court.

Justices rejected that reasoning, saying to do so would violate the constitution’s separation of powers. “The Attorney General’s authority, statutorily granted by the General Assembly, simply cannot trump the Governor’s implied power to litigate in executing his enumerated powers …,” their decision says.

Indiana joins Michigan and Minnesota as states where only the governor can call the legislature into a special session (Wisconsin’s special sessions can run concurrently with regular sessions).

In all other states, both the governor and legislature can call a special session, although North Dakota legislators can do so only if they have not exceeded their constitutional cap of 80 session days per biennium.

A new Illinois program to increase the availability of fresh food in the state’s “food deserts” — areas where there is a lack of fresh food vendors — will begin in 2023.

HB 2382, the “Healthy Food Program Development Act,” which became law in June, directs the Department of Human Services to expand access to health food in historically under-utilized business zones (as defined by federal law) using a combination of grants, loans, tax credits or other financial assistance, plus equipment or technical aid, to qualified vendors who agree in writing to sell produce “or other healthy foods” for at least three years.

The department must appoint a “grocery ambassador” to work with such vendors, which may include grocery stores, neighborhood corner stores, farmers’ markets or other “small food retailers.”

Participating vendors will be “strongly encouraged” to accept benefits from the federal Supplemental Nutrition Assistance Program (SNAP) and Women, Infants and Children (WIC) program, and employ Illinois residents.

While food deserts and food insecurity are problems predating the COVID-19 pandemic, the national health crisis exacerbated the problem, according to an August 2021 Brookings Institution report, “Beyond ‘food deserts’: America needs a new approach to mapping food insecurity.” In 2019, the report said, 10.5 percent of all U.S. households faced food insecurity, and that rate doubled from February to May 2020.

Some states try to fill food deserts through schools. Nebraska’s Farm to School Program Act (LB 396 of 2021), for example, helps local school districts connect with local farmers and ranchers to provide fresh food in schools. It arose from a 2020 interim session study (LR 337 of 2020) which recommended establishing a statewide farm-to-school program and the creation of two full-time positions to coordinate statewide farm-to-school activities. That study was an update of a 2009 interim study (LR 42 of 2009) of the potential for such programs.

The Michigan Department of Education administers the “10 Cents a Meal” program that uses state grants to match what schools spend — up to 10 cents per meal — on Michigan-grown fruits, vegetables and legumes. The state’s fiscal year 2023 budget doubled spending on the program from $4.5 million to $9.3 million.

The U.S. Supreme Court’s late June decision overturning Roe v. Wade triggered an electoral earthquake in Kansas, a new law in Indiana and may have opened myriad future constitutional questions about how states interact with each other.

Kansas voters on Aug. 2 decisively defeated a proposed constitutional amendment which would have specified the state’s constitution does not protect abortion access.

Days later, Indiana enacted a new law (SB 1) tightening such access to very limited circumstances. And Michigan voters might consider a proposal to constitutionally protect access in the Nov. 8 general election.

As of August in the Midwest, abortion access is:

• Illegal, with narrow exceptions in Indiana, North Dakota (whose law banning abortion was stayed by a court injunction), South Dakota, and Wisconsin, where trigger laws or pre-Roe bans took effect with the Supreme Court’s Dobbs v. Jackson Women’s Health Care Organization decision.
• Constitutionally protected via state Supreme Court rulings in Illinois, Kansas and Minnesota; and
• legal and available to varying degrees in Iowa, Michigan, Nebraska and Ohio.

Every state that has banned or sharply restricted abortion makes an exception for the life of the mother. Indiana and North Dakota also allow abortions in cases of rape or incest; Indiana also allows it for fatal fetal anomalies. In states where abortion remains legal, the procedure is subject to various restrictions and/or mandates (see chart).

For example, Kansas requires counseling on fetal pain, negative psychological effects and potential links to breast cancer. Iowa, Kansas, Michigan, Nebraska and Ohio ban abortion services via telemedicine.

And except for Illinois and Minnesota, all Midwestern states where abortion is legal require parental consent or notice for minors seeking the procedure.

Those laws, however, govern what takes place within their states’ borders. No Midwestern legislature has considered criminalizing traveling out of state for abortion services, but Missouri’s did earlier this year. While SB 1202 did not advance, it raised questions about whether such a law could be constitutional.

A draft paper, “The New Abortion Battleground,” scheduled for publication in 2023 in the Columbia Law Review, predicts such legislation and ensuing litigation are probable as states wrestle with the Dobbs decision, and the availability of telemedicine and abortion-inducing medications.

“Given the underdeveloped and contested jurisprudence, the competing fundamental constitutional principles involved, and the complex web of factual scenarios that could possibly arise, the post-Roe judiciary will soon be mired in interjurisdictional complexities that will make the workability of the previous era look simple in comparison,” the paper states.

Constitutional questions

Kansas’s referendum on whether the state constitution protects abortion access rights was the first post-Dobbs election result.

A proposed amendment would have specified that the constitution does not provide a right to abortion, and undone a 2019 ruling by the state Supreme Court that the document does. Voters in the Aug. 2 primary election defeated the proposal 59 percent to 41 percent, leaving abortion legal (though subject to restrictions).

Michigan voters may get the next chance to constitutionally enshrine abortion access. A citizen-initiated amendment, the “Michigan Right to Reproductive Freedom Initiative,” would add new language that “every individual has a fundamental right to reproductive freedom” that “shall not be infringed upon unless justified by a compelling state interest achieved by the least restrictive means.”

In late July, organizers said they had turned in 753,759 signatures to the Michigan secretary of state for verification (425,059 valid signatures are required to get an initiative on the ballot). If approved by voters in the Nov. 8 general election, it would take effect 45 days after the election.

Iowa legislators in 2021 passed a proposed amendment declaring the state’s Constitution does not protect abortion access. That came in reaction to a 2018 Iowa Supreme Court decision that abortion is constitutionally protected.

But in June, the court reversed itself to undo that protection, and also reversed a lower court’s decision invalidating a 2020 law requiring a 24-hour waiting period.

If legislators pass the amendment again in 2023 or 2024, the proposal will go to Iowa’s voters in ’24.

Supreme courts in Illinois and Minnesota have also ruled that abortion access is protected by their respective state constitutions.

Post-Dobbs legislation

Indiana legislators in an early August special session passed new restrictions on abortion, which Gov. Eric Holcomb signed into law.

As reported by the Associated Press, the law bans abortions, with exceptions for cases of rape and incest; to protect the life and physical health of the mother; or if the fetus is diagnosed with a lethal anomaly.

Abortions may be performed only in hospitals or outpatient centers owned by hospitals, meaning all abortion clinics will lose their licenses.

Nebraska Gov. Pete Ricketts in mid-August canceled plans to call a special session of the Unicameral Legislature to consider tighter restrictions on abortion after falling three votes short of a filibuster-proof majority.

In contrast, Illinois legislators in 2021 passed the Reproductive Health Act, which became law in December of that year. The law makes abortion access a “fundamental right”; eliminated felony penalties for doctors who perform abortions; and removed waiting periods and a requirement that a married woman get consent from her husband. The law also states a “fertilized egg, embryo or fetus does not have independent rights.”

Abortion in Canada

In Canada, abortion is legal, but access varies among the provinces, which can regulate or restrict access based on gestational limits and set “bubble” or access boundaries around abortion clinics in which protests are banned (see table)

Abortion was illegal until a 1969 law legalized therapeutic abortions in cases where a panel of doctors agreed it was necessary. That stood until the Canadian Supreme Court ruled in 1988 that the law violated Section 7 of the Canadian Charter of Rights and Freedoms.

In November, Kansans will decide whether a second kind of veto should be added to its century-and-a-half-old state Constitution: the power of the Legislature to repeal or suspend rules and regulations from executive branch agencies and officers.

The legislatively referred constitutional amendment has been years in the making in Kansas, says state Rep. Barbara Wasinger, who serves as vice chair of the Joint Committee on Administrative Rules and Regulations.

Ever since a state Supreme Court ruling from 1984, the Legislature has only been able to review and voice concerns about administrative rules and regulations, through the joint committee that Wasinger now helps lead and has served on since joining the House.

“I remember my first meeting as a committee member, and I got done and said [to the committee chair at the time], ‘Am I getting this right? We listen to everything they’re going to do, but if we don’t agree with it, if we think they’re doing something wrong, we can tell them, but they don’t have to listen to us?’ “ Wasinger recalls asking.

Her surprise at the lack of legislative controls soon turned to concern about the impact of new rules coming from the executive branch — from an additional regulation on hair salons that she says forced some smaller operations in rural Kansas out of business, to big changes to the workers’ compensation system.

Prior to the state Supreme Court ruling from 38 years ago, Kansas had a statute allowing the Legislature to pass a concurrent resolution that revoked or modified administrative rules.

Governors are powerless to act on concurrent resolutions, a fact that has led courts in Kansas and several other states to overturn “legislative vetoes” as unconstitutional on the grounds that they violate separation-of-powers principles, says Northern Illinois University law professor Mark Falkoff.

The best course of action for Kansas legislators, Wasinger says, was to ask voters to change the Constitution.

To get the amendment on the ballot, Wasinger and supporters first needed to secure a two-thirds vote in the House and Senate. That occurred earlier this year. Under the language of HCR 5014, the Legislature would have the authority to establish a process for revoking or suspending administrative rules through a majority vote of the members of each legislative chamber.

“This is not about discrediting anyone who works for the government [agencies], and I would say a majority of them want to do a good job for Kansas,” Wasinger says. “This is about accountability.”

The power of a joint committee in Illinois

State legislatures have varying levels of oversight authority of administrative rules and regulations (see map).

Illinois has been cited as having one of the strongest such legislative checks because of the statutory powers granted to the General Assembly’s 12-member Joint Committee on Administrative Rules.

Democrats and Republicans are equally represented on the bicameral committee. A three-fifths vote of this committee can block agency rules. Earlier this year, for example, the committee stopped an attempt by the Illinois Department of Public Health to reinstate a mask mandate in schools.

Falkoff, though, believes the powers granted to the Joint Committee on Administrative Rules are on constitutionally shaky grounds.

“Illinois is kind of an extreme version of the legislative veto in that it doesn’t even require two houses, or even one full house,” he says. “It’s just this one committee that can do it. When you look at court rulings across the country, with the lone exception of Idaho, any type of legislative veto [of administrative rules] has been deemed unlawful [minus a change in the state constitution].”

Capital Closeup is an ongoing series of articles focusing on institutional issues in state governments and legislatures.