A new Arkansas law effective March 6, 2023, will limit the maximum length of unemployment insurance benefits from 16 weeks to 12 weeks starting Jan. 1, 2024. The bill passed with veto-proof majorities in both chambers (29-3 in the Senate and 79-15 in the House).
The law will also reduce the new employer unemployment insurance tax rate from 2.9% to 1.9% in 2024 and reduce the solvency surtax—an additional fee intended to ensure stable reserves in the state unemployment trust fund—from 0.2% to 0.1% by fiscal year 2025.
Unemployment insurance is a joint federal and state program that provides temporary monetary benefits to eligible laid-off workers who are actively seeking new employment. Qualifying individuals receive unemployment compensation as a percentage of their lost wages in the form of weekly cash benefits while they search for new employment.
The federal government oversees the general administration of state unemployment insurance programs. The states control the specific features of their unemployment insurance programs, such as eligibility requirements and length of benefits.
For information about unemployment insurance programs across the country, click here.
El Paso voters will vote on a charter amendment, titled Proposition K, to declare “[reducing] the city’s contribution to climate change” and “[advancing] the cause of climate justice” of paramount importance on May 6, 2023.
The charter amendment would also:
require El Paso to use energy generated by renewable sources (defined as “energy generated without burning carbon or releasing greenhouse gasses”), with a goal of 100% by 2045;
require El Paso to use available efforts to covert El Paso Electric to municipal ownership;
prohibit the sale or transfer of water for fossil fuel-related activities outside of the city limits;
prohibit fees and fines “that limit the purchase, use, or generation of renewable energy;”
create the appointed position of Climate Director, who would be charged with fulfilling the amendment’s goals, creating an annual Solar Power Generation Plan, producing a climate impact statement for proposals before the El Paso City Council, and leading a new Climate Department;
have the City Manager and Climate Director collaborate on creating climate jobs, defined as jobs that help meet the amendment’s goals, and creating a Climate Disaster Mitigation and Preparedness Plan
create a five-member Climate Commission to make legislative recommendations to the El Paso City Council that would advance the amendment’s goals and investigate matters regarding the city’s implementation of the charter amendment.
In July 2022, organizers for Sunrise El Paso and Ground Game Texas submitted 36,360 signatures to get the initiative on the ballot. El Paso city officials verified that more than 20,000 valid signatures were submitted on Nov. 11, 2022, and qualified the initiative for the ballot.
Sunrise El Paso said, “We are working to bring green jobs to El Paso, build solar power, conserve water and protect its quality, address pollution head-on in our communities, fight against environmental racism and inequity, encourage a municipalized electric utility, and so much more through this people-led initiative.”
Opponents to the amendment include the El Paso Chamber of Commerce, El Paso Electric, and Borderplex Alliance.
El Paso Electric said, “While we share the same goals of an environmentally sustainable future for our region, we are embedding and evaluating all possible technology and generation to achieve these goals. We believe the (climate charter) proposition is too limited and does not include the wide array of customer solutions and technology to affordably achieve the agreed upon goals.”
The El Paso Chamber said, “Climate change is real, and we are committed to common-sense reforms that push for a comprehensive approach to the matter. However, we must do so in a way that considers the cost to the region – especially to those whose livelihood is dependent upon jobs that would no longer exist under the passage of the proposed amendment.”
Miguel Escoto, an organizer with Sunrise El Paso, said that the amendment would create jobs. Escoto said, “By law, the municipal government will be legally mandated to find climate jobs. This would increase the amount of jobs. It would increase the amount of job security.”
Election day in El Paso is on May 6, 2023. Voters will also decide on 10 other charter amendments.
New Orleans Mayor LaToya Cantrell (D) filed two lawsuits on March 14, 2023, to challenge a consent judgment that was agreed upon by Louisiana Secretary of State Kyle Ardoin (R) and the organizers of the recall effort against Cantrell. The consent judgment, announced by Ardoin on March 1, 2023, revises the number of registered voters in the Orleans Parish down to 224,876 for the purpose of the recall effort. That lowers the requirement to put the recall election on the ballot to 44,975 signatures, down from 49,975.
Cantrell’s attorneys argue in the first lawsuit, filed with the Orleans Parish Civil District Court, that Ardoin lacked the authority to retroactively lower the signature threshold for a recall petition that had already been submitted. The lawsuit also states that Orleans Parish Civil District Court Judge Jennifer Medley, who approved the consent judgment, had a vested interest in the outcome of the litigation, based on reports that Medley was a signatory to the recall petition.
Cantrell also filed a petition with the 19th Judicial District Court for East Baton Rouge Parish seeking a Writ of Mandamus against Ardoin. If approved, that court order would direct Ardoin to show by what authority he negotiated the consent judgment.
The signature requirement for recalls in Louisiana is based on the number of people in the recall target’s district. For districts of 100,000 eligible voters or more, signatures equal to 20% of eligible voters are needed. Completed petitions must be submitted within 180 days of being filed with the Louisiana Secretary of State. Once signatures are handed in, the registrar of voters has 20 working days to certify the recall petition. If enough signatures are certified by the registrar of voters, the petition is forwarded to the governor who has 15 days to issue an election proclamation.
When petitioners began gathering signatures in August 2022, the signature requirement was expected to be 53,353. The number of required signatures was adjusted to 49,975 after a recalculation of registered voters in the parish. On February 16, recall organizers filed a lawsuit, contending that 30,000 voters have relocated from the parish and should be excluded from the voter rolls. With the consent judgment in place, the signature requirement for the recall effort against Cantrell was modified without the need to purge any names from the voter rolls.
Recall organizers said that more than 49,000 signatures were submitted by the deadline on February 22, 2023. Orleans Parish Registrar of Voters Sandra Wilson has until March 22, 2023, to verify the signatures.
The recall effort was initiated by New Orleans residents Eileen Carter and Belden Batiste. Petitions listed Cantrell’s “failure to put New Orleans first and execute responsibilities of the position” as the reason for recall. Carter has highlighted an increase in crime rates, deteriorating infrastructure, and a lack of interaction between Cantrell and city officials.
Cantrell responded to the recall effort during an interview with WGNO. She said, “I’ve chosen to do the hard things. That doesn’t mean that comes without the ability to please everyone. I cannot do that. I strive to but I cannot but I choose to do the hard things. I continue to make history around here.”
As of March 14, there have been eight state supreme court vacancies or vacancy announcements in 2023 for judges whose replacements are chosen via appointment instead of election. Alaska, California, North Dakota, and Tennessee each have one state supreme court vacancy. Delaware and Missouri each have two state supreme court vacancies.
Two judges vacated their seats after being appointed to different offices. The remaining six judges retired or plan to retire in 2023. Two vacancies have been filled, and two appointments have been made but the replacement judges have not yet taken office. The remaining four vacancies have not yet been filled.
Three vacancies are in states where a Democratic governor makes the appointment. Five vacancies are in states where a Republican governor makes the appointment.
From 2019 to 2022, there were 89 state supreme vacancies for judges whose replacements are chosen via appointment instead of election. The vacancies were created when five judges were appointed to different offices, 79 judges retired, four judges died, and one judge lost a retention election. During those years, 37 vacancies were filled by a Democratic governor, 48 vacancies were filled by a Republican governor or Republican-controlled state legislature, and four vacancies were filled by a nonpartisan state supreme court.
Three states are holding gubernatorial elections in 2023, and four states are holding regularly scheduled legislative elections in eight of the country’s 99 state legislative chambers. As a result, five states’ trifecta status is at stake this year:
Mississippi—one of 22 states with a Republican trifecta,
New Jersey—one of 17 states with a Democratic trifecta, and
Kentucky, Louisiana, and Virginia—three of 11 states with divided government.
A state government trifecta occurs when one party holds the governorship and majorities in both state legislative chambers. Ballotpedia’s annual trifecta vulnerability ratings estimate the chances of trifectas breaking and forming. Our assessment of gubernatorial races is based on race ratings from the Cook Political Report, Sabato’s Crystal Ball, and Inside Elections. For legislative races, we use the absolute number of seats and the proportion of seats that would need to change control. Both chambers in a state’s legislature are evaluated individually.
New Jersey’s Democratic state government trifecta is moderately vulnerable in 2023, according to this methodology. New Jersey does not hold its gubernatorial election in 2023, but all seats in both state legislative chambers are up for election. If Republicans gain five seats in the Senate or six seats in the House, they will win a majority in one chamber or the other and would break the Democratic trifecta. Democrats will retain their trifecta if they lose fewer than five seats in the state Senate and six seats in the General Assembly. New Jersey will hold legislative elections using districts enacted after the 2020 census for the first time. Democrats have held partisan control of both chambers of the New Jersey legislature since 2004.
Kentucky, Louisiana, and Virginia all have a possibility of becoming Republican trifectas.
In Louisiana, Gov. John Bel Edwards (D) is term-limited and national election publications rate the race to replace him as Leans Republican. All state legislative seats in Louisiana are up for election, with Republicans having an eight-seat majority in the state Senate and a 20-seat majority in the state House.
Kentucky’s Gov. Andy Beshear (D) is running for re-election. National publications rate that race as Leans Democratic. The last five Kentucky governors—since 1995—have alternated between Democrats and Republicans. Republicans hold majorities in both chambers of the Kentucky legislature, and the state does not hold legislative elections until 2024.
Virginia will not hold gubernatorial elections until 2025, and the current governor is Republican Glenn Youngkin. All 140 legislative districts in the state are holding elections. Democrats have a two-seat majority in the state Senate and Republicans have a two-seat majority in the House of Delegates. Virginia, like New Jersey, will hold legislative elections using districts enacted after the 2020 census for the first time.
Mississippi’s Republican trifecta is rated not vulnerable according to this analysis. The governor’s race is rated as Likely Republican and Republicans have a 12-seat majority in the state Senate and a 20-seat majority in the state House.
Trifecta control affords a political party the opportunity to advance its agenda. Gaining or breaking trifectas—or in some cases, maintaining divided government—thus often becomes a major priority for a party heading into each election cycle.
The 2022 elections resulted in changes to the trifecta status in six states. In Maryland, Massachusetts, Michigan, and Minnesota, divided governments became Democratic trifectas. In Nevada, the Democratic trifecta became a divided government, and in Arizona, the Republican trifecta became a divided government. Between 2010 and 2022, 79 state government trifectas were broken or gained.
Nationally, governors issued 10 executive orders from March 6-12. Minnesota Gov. Tim Walz (D) led the field with two. Governors in 41 states issued the fewest orders with zero.
Governors use executive orders to manage executive branch operations. Last week’s executive orders account for 3% of the year-to-date total of 319. Georgia Gov. Brian Kemp (R) leads with 80 orders issued since Jan. 1, followed by Florida Gov. Ron DeSantis (R) with 49 and New Mexico Gov. Michelle Lujan Grisham (D) with 37.
Georgia and Florida lead in the number of executive orders issued for two reasons: unlike most states, in Georgia, the governor uses executive orders to appoint and reappoint members of state boards and judges. In Florida, also unlike most states, the governor uses executive orders for state attorney executive assignments.
Governors in 21 states have issued fewer than five opinions since the start of the year, and those in 15 states have yet to issue any orders so far. In states with a Republican trifecta, governors issued 192 orders, while governors in states with a Democratic trifecta issued 89. A trifecta is when one political party holds the governorship and majorities in both chambers of the state legislature. In states where neither party holds trifecta control, governors issued 38 orders.
Arkansas Gov. Sarah Huckabee Sanders (R) signed House Bill 1419 (HB 1419), which increases the signature distribution requirement for citizen-initiated ballot measures, on March 7. Under HB 1419, campaigns will be required to collect signatures from 50 of 75 (67%) counties. Previously, the requirement was 15 of 75 (20%) counties. For citizen-initiated state statutes, the signature requirement is equal to 4% of the votes cast for governor in each of at least 50 of 75 counties. For citizen-initiated constitutional amendments, the requirement is equal to 5% of the votes cast for governor in these counties.
In the House, HB 1419 was approved 79 to 19. In the Senate, the legislation was approved 21 to eight. Senate Republicans and 79 House Republicans voted to pass HB 1419, while legislative Democrats, along with two House Republicans, voted against the change.
State Sen. Jim Dotson (R-34), a co-sponsor of the bill, said, “The purpose of this would be to ensure that we’re getting representation from all across the state, not just large urban areas but rural counties as well, and having a lot of input into the process.” State Sen. Greg Leding (D-30), an opponent, stated, “The voters have made it absolutely clear that they do not want the Legislature making it harder for them to get things on the ballot, and I think we should listen to them.”
State Sen. Bryan King (D-28) and the League of Women Voters of Arkansas sued Secretary of State John Thurston (R), asking the 6th Judicial Circuit Court to rule HB 1419 unconstitutional. Plaintiffs noted that Article V of the Arkansas Constitution provides for the 15-of-75 counties requirement, while HB 1419 is a statute. According to the plaintiffs, this means that HB 1419 is effectively modifying the state constitution, which a bill cannot do. Amending the constitution would require voter ratification.
Of the 26 states that allow for state initiatives or referendums, Arkansas is one of 16 with a signature distribution requirement. The other 10 states do not have distribution requirements.
As of March 15, two other bills related to ballot measures have been signed into law in Arkansas during the 2023 legislative session. HB 1027 required voter approval for a county government to enact a new or increase an existing local sales tax. Under HB 1027, a simple majority vote of the electorate is required for the tax to take effect. HB 1320 required initiative sponsors to submit drafts to the Arkansas Attorney General, rather than the Board of Election Commissioners. Under HB 1320, the attorney general is responsible for approving, rejecting, or substituting the ballot title and popular name for each initiative within 10 days of receiving a draft.
The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process, and the rule of law.
In this month’s edition of Checks and Balances, we review the landscape of judicial and legislative challenges to the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA); oral argument before the United States Supreme Court on the Biden administration’s proposed student loan cancellation plan; and President Biden’s veto of a Congressional Review Act (CRA) resolution aiming to nullify the U.S. Department of Labor’s rule allowing retirement plans to consider certain environmental, social, and corporate governance (ESG) factors in investment-related decisions.
At the state level, we take a look at a proposal in the Idaho State Legislature aiming to modify the legislative approval process for state administrative rules as well as activity in Alabama and Ohio seeking to reduce state administrative regulations.
We also highlight new scholarship from law professor Allison M. Whelan on what Whelan refers to as executive interference in scientific agency decisionmaking. We wrap up with our Regulatory Tally, which features information about the 167 proposed rules and 227 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
Judicial, legislative challenges seek to limit federal water regulation
What’s the story?
The Biden administration earlier this year finalized an updated version of the Waters of the United States (WOTUS) rule, effective March 30, 2023, which spurred new legal and legislative challenges to the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The challenges argue in part that the inclusion of certain wetlands and streams in the definition of navigable waters—an interpretation of the CWA promulgated by the Obama administration, narrowed by the Trump administration, and largely reinstated by the Biden administration—exceeds the scope of the EPA’s regulatory authority.
A coalition of 24 Republican-led states on February 16 filed suit in the United States District Court for the District of North Dakota Eastern Division challenging the lawfulness of the Biden administration’s final WOTUS rule. The suit argues, among other claims, that the rule exceeds the EPA’s statutory authority under the CWA “by encompassing waters with no reasonable connection to ‘navigable waters.’”
Meanwhile, a ruling from the United States Supreme Court is forthcoming in Sackett v. EPA, a 14-year legal challenge that questions the EPA’s regulatory scope under the CWA. In Sackett, the court will decide whether to articulate a standard for recognizing the extent of the EPA’s regulatory jurisdiction over the nation’s navigable waters.
At the same time, a Congressional Review Act (CRA) resolution seeking to nullify the Biden-era WOTUS rule was pending in the United States Senate as of March 17 with support from Democratic Senator Joe Manchin (W. Va.) and 49 Republican senators. The CRA resolution, sponsored by Rep. Sam Graves (R-Mo.) and 170 Republican cosponsors, passed the House on March 9 by a 227-198 vote in which nine Democrats voted with Republican colleagues.
President Biden released a statement on March 6 indicating that he would veto the CRA resolution if it reaches his desk. Biden argued that the resolution would result in an “uncertain, fragmented, and watered-down regulatory system.”
SCOTUS hears oral argument in case challenging Biden administration’s student loan cancellation plan
What’s the story?
The United States Supreme Court on February 28, 2023, heard oral argument in Biden v. Nebraska—a case challenging the U.S. Department of Education’s authority to cancel up to $20,000 of federal student loan debt per borrower under the national emergency provisions of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).
Six states (Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina) on September 29, 2022, filed a lawsuit arguing in part that the debt-cancellation program overstepped the department’s emergency authority under the HEROES Act and that the department could not lawfully stop collecting student loan payments without congressional approval. A district court in October ruled that the states, which further argued that the plan would harm their investments and reduce their tax revenues, did not have standing to sue because they had not demonstrated sufficient harm from the program. The United States Court of Appeals for the Eighth Circuit later blocked the plan from taking effect while the case progressed through the courts.
While “the court’s liberal justices were dubious about the states’ right to sue,” according to SCOTUSblog analyst Amy Howe, “the court’s conservative justices appeared just as skeptical about whether the Biden administration could rely on the HEROES Act to adopt the loan-forgiveness program.” Howe further observed that “a majority of the justices appeared unconvinced that Congress intended to give the secretary of education the power to adopt the program,” adding that “[s]ome of the conservative justices also suggested that the loan-forgiveness program might fail under the ‘major questions doctrine.’”
Biden vetoes CRA resolution seeking to nullify ESG rule
What’s the story?
President Joe Biden (D) on March 20, 2023, vetoed a Congressional Review Act (CRA) resolution passed by Congress that aimed to nullify a rule from the U.S. Department of Labor (DOL) allowing retirement plans to consider certain environmental, social, and corporate governance (ESG) factors in investment-related decisions.
The U.S. House of Representatives voted 216-204 on February 28 to pass the resolution, with Democratic Representative Jared Golden (Maine) joining Republican colleagues. The U.S. Senate passed the resolution on March 1 by a 50-46 vote. Democratic Senators Joe Manchin (W. Va.) and Jon Tester (Mont.) joined Republican senators in supporting the measure.
Manchin described the rule as “another example of how our administration prioritizes a liberal policy agenda over protecting and growing the retirement accounts of 150 million Americans,” according to The Hill.
Nullification of the ESG rule would have resulted in the DOL reverting to a Trump-era regulation requiring that retirement plans only consider pecuniary factors with a material effect on investment risk or return. Biden argued in his veto statement, “There is extensive evidence showing that environmental, social, and governance factors can have a material impact on markets, industries, and businesses. But the Republican-led resolution would force retirement managers to ignore these relevant risk factors” and “would prevent retirement plan fiduciaries from taking into account factors, such as the physical risks of climate change and poor corporate governance, that could affect investment returns.”
Idaho lawmakers consider changes to legislative approval of agency rules
What’s the story?
Idaho state lawmakers are considering legislation that would require both chambers of the Idaho State Legislature to approve pending administrative rules before they can take effect.
Idaho law requires the state legislature to reauthorize all of the state’s administrative rules each year. A vote by one chamber of the state legislature is required to either approve or reject a pending administrative rule (except for rules carrying fees, which must be rejected by both chambers). If one chamber approves while the other chamber rejects a rule, the rule nonetheless becomes effective—a framework that has contributed to tension in the past between the state House and state Senate, according to the Idaho Capital Sun. House Bill 206 instead proposes requiring both chambers of the state legislature to approve pending administrative rules.
“This is a fundamental change,” said state Rep. Vito Barbieri (R), the bill’s floor sponsor, during a meeting of the House State Affairs Committee. “As you may know, one house approving a rule and another house rejecting a rule—unless it’s a fee rule—that rule has become effective.”
The House passed the bill by a 59-11 vote on March 1, 2023. The bill was pending in the state Senate as of March 17.
Alabama Governor Kay Ivey (R) on March 8, 2023, signed Executive Order 735, which puts a two-year freeze on state agency rulemaking, with certain exceptions. The order also requires each state agency during the two-year period to create an inventory of all rules and rescind any regulatory restrictions on citizens and businesses deemed discretionary. During her State of the State address on March 7, Ivey put forth a goal of reducing the number of regulatory restrictions in the state by 25%.
“In many cases, government regulations that were necessary a decade ago have outlived their usefulness, and it’s time for that to change,” said Ivey in a statement.
Ohio Governor Mike DeWine (R) included a similar proposal earlier this year as part of his proposed budget plan. Under DeWine’s proposal, state agencies would eliminate one-third of the Ohio Administrative Code by rescinding “duplicative provisions, outdated sections, and unnecessary requirements,” according to The Statehouse News Bureau. The proposal also seeks to remove federal regulatory language from the state code in an effort to help small businesses better identify the differences between state and federal requirements.
Examining scientific agency decisionmaking and the executive branch
New scholarship from law professor Allison M. Whelan in the Vanderbilt Law Review proposes a conceptual framework to address what Whelan refers to as executive branch interference in the scientific decisionmaking of administrative agencies:
“The scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, ‘internal agency capture,’ and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it scrutinizes who should control, or alternatively advance or limit, an agency’s scientific decisions, which are distinct from its policymaking decisions. With its ‘internal agency capture’ framework and the COVID-19 pandemic as its backdrop, the Article illustrates the phenomenon of excessive executive overreach at work in the scientific decisionmaking of the U.S. Food and Drug Administration (‘FDA’), glaringly reflected in the Agency’s decisions on reproductive medicines and protocols to respond to the pandemic. This Article demonstrates that covert internal capture can mislead the public, pose serious risks to individual and public health, undermine the arm’s-length neutrality and objectivity of agencies, and result in lasting consequences for agency legitimacy and reputation.”
Want to go deeper?
Click here to read the full text of “Executive Capture of Agency Decisionmaking” by Allison M. Whelan
As of March 15, 2024, five noteworthy candidates are running in the 2024 presidential election, including one Democrat and four Republicans.
Below is a summary of each candidate’s campaign activity from March 8 to March 15.
Author and 2020 presidential candidate Marianne Williamson (D) held campaign events across New Hampshire from March 8 to March 13.
Former U.N. Ambassador Nikki Haley (R) campaigned in Iowa from March 8 to March 10 and held a rally in Myrtle Beach, South Carolina, on March 13. During a townhall in Council Bluffs, Iowa, on March 8, Haley announced she was in favor of raising the retirement age for younger Americans.
Former President Donald Trump (R) held a campaign event in Davenport, Iowa, on March 13, marking his first official campaign visit to the state this cycle. He spoke about education policy, saying he supported universal school choice, electing school principals, and eliminating the U.S. Department of Education.
Former Montana Secretary of State Corey Stapleton (R) announced he would be campaigning in New Hampshire on March 15.
At this point in the 2020 cycle, 17 noteworthy candidates were running for president. Sixteen were seeking the Democratic nomination, and one (Trump) was seeking the Republican nomination.
Notable stories at the time included Beto O’Rourke’s (D) campaign announcement, Andrew Yang (D) reaching the donor threshold to participate in the Democratic primary debates, and the Democratic National Committee’s selection of Milwaukee to host the 2020 Democratic National Convention. The 2024 Republican National Convention will be held in Milwaukee, along with the first Republican presidential primary debate.
In the 2016 election cycle, no noteworthy candidates were running for president as of March 15, 2015. Senator Ted Cruz (R-Texas) was the first noteworthy candidate to announce his campaign on March 23 of that year. At this point in the 2016 cycle, candidates who would eventually declare were preparing to do so. Sen. Rand Paul (R-Ky.) hired new staff in preparation for a run, and Sen. Bernie Sanders (I-Vt.) discussed fundraising with The Washington Post. Discussion of Hillary Clinton’s (D) private email server was in the news as well, with The Washinton Post reporting on 2020 Republican presidential candidate Jeb Bush’s use of a private email server while in office as governor of Florida.
Texas Attorney General Ken Paxton (R) on Feb. 15, 2023, filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the Consolidated Appropriations Act (CAA) of 2023, arguing in part that certain CAA provisions violate state sovereignty and that Congress unlawfully passed the law without a quorum of members present.
The U.S. House of Representatives passed the CAA in December 2022 with 201 of the chamber’s 435 voting members present. House rules at the time under then-Speaker Nancy Pelosi (D) allowed members to vote by proxy due to the coronavirus (COVID-19) pandemic. In addition to general appropriations provisions, the CAA created certain workforce accommodations for pregnant employees as well as the Department of Homeland Security’s case-management pilot program for individuals who entered the country without legal permission.
Paxton argued that “the Constitution defines absent members as excluded from ‘a Quorum to do Business’ and therefore unauthorized to vote to enact legislation—by ‘proxy’ or otherwise.” Paxton further argued that the CAA’s workplace accommodations “attempt to abrogate Texas’s sovereign protection from being sued without its consent” and that the DHS pilot program “harms Texas’s quasi-sovereign interests in the health and well-being, both physical and economic, of its residents and in its rightful status within the federal system.”
The U.S. District Court for the Northern District of Texas had not set a date for oral argument in the case as of Feb. 27, 2023. The White House had not responded to the lawsuit as of Feb. 27, 2023.