Justice Kavanaugh open to reviving the nondelegation doctrine

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.

This edition:

In this month’s edition of Checks and Balances, we report on Justice Kavanaugh’s interest in reviving the nondelegation doctrine; the latest figures in the Trump administration’s 2-for-1 deregulatory policy; a summit hosted by the U.S. Department of Justice to examine the need to reform the Administrative Procedure Act (APA); rulemaking and due process reforms at the U.S. Department of Transportation; and the lifting of multiple injunctions against the administration’s rules for determining the admissibility of aliens who are likely to become dependent on public assistance.

At the state level, we review an unusual request for a smaller budget from the Oklahoma State Department of Health, and the New Hampshire governor’s challenge to a federal rule requiring the state to change its highway exit signs. As always, we wrap up with our Regulatory Tally, which features information about the 150 proposed rules and 245 final rules published in the Federal Register in November and the Office of Information and Regulatory Affairs‘ (OIRA) regulatory review activity.

The Checks and Balances Letter

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In Washington

Justice Kavanaugh open to reviving the nondelegation doctrine

What’s the story? In a statement published with the United States Supreme Court’s November 25 orders, Justice Brett Kavanaugh noted that Justice Neil Gorsuch’s analysis of the nondelegation doctrine—the constitutional principle forbidding Congress from delegating its legislative powers to the executive—in Gundy v. United States last term “may warrant further consideration in future cases.”
Kavanaugh had not yet joined the court when the conservative justices commented on reviving the nondelegation doctrine in Gundy. His comments suggest that there is now a conservative majority willing to reconsider the doctrine.
Kavanaugh’s statement followed the court’s decision to not hear Ronald W. Paul v. United States, which raised the same issue of statutory interpretation that the court resolved in Gundy. The issue concerns whether the Constitution allows Congress to delegate authority to the U.S. attorney general to retroactively require mandatory sex offender registration without providing explicit guidance on the use of that power.
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Trump administration 2-for-1 deregulatory goal in 2019

What’s the story? The Office of Information and Regulatory Affairs (OIRA) issued its final 2019 fiscal year report on the results of the Trump administration’s 2-to-1 executive order, which requires agencies to eliminate two significant regulations for each new significant regulation issued.
In 2019, OIRA reported that agencies issued 61 significant deregulatory actions (those eliminating significant regulations) and 35 significant regulatory actions for a ratio of 1.7-to-1—just shy of the administration’s 2-to-1 goal.
President Donald Trump (R) instituted the 2-to-1 policy in January 2017 via Executive Order 13771. At the end of the 2017 fiscal year, OIRA reported a ratio of 22-to-1. Following the 2018 fiscal year, OIRA reported a ratio of 4-to-1
The latest 2-to-1 report followed the release of the Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions in late November.
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DOJ hosts summit on APA’s contribution to the administrative state

What’s the story? The U.S. Department of Justice (DOJ) on December 6 hosted federal lawmakers, staff, and administrative law experts to consider whether the Administrative Procedure Act (APA) is contributing to the expansion of the administrative state and how the APA should be reformed.
Deputy Attorney General Jeff Rosen delivered the keynote address in which he asserted that “regulation is now our principal form of lawmaking.” He also stated that the increase of informal rulemaking since the 1970s has contributed to the expansion of the administrative state.
Solicitor General Noel Francisco also addressed the gathering, pointing out that informal rulemaking constitutes agency end-runs around judicial review. He also spoke of the potential for codifying Trump’s regulatory reforms, and highlighted recent legislative proposals to reform the APA, such as expanding hybrid and formal rulemaking, increasing the use of cost-benefit analysis, and broadening the scope of judicial review.
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DOT rule on rules

What’s the story? The U.S. Department of Transportation (DOT) on December 5 finalized a rule—dubbed “the rule on rules”—that changes the department’s rulemaking, guidance, and regulatory enforcement practices.
The new rule “enhances the department’s regulatory process by providing greater transparency and strengthening due process in enforcement actions,” according to a statement issued by Transportation Secretary Elaine Chao.
The rule incorporates President Trump’s 2-for-1 regulatory policy (from Executive Order 13771) and the regulatory reform task force (from Executive Order 13777) into the department’s rulemaking practices. The rule also incorporates Trump’s October executive order prohibiting the imposition of regulations through guidance documents.
The rule also aims to strengthen due process protections in the department’s enforcement proceedings by ensuring that proceedings are free from bias, in part by ensuring that enforcement personnel are free from financial or personal interests that could affect the outcome of the enforcement action; that final decisions are well-documented; and that penalties are reasonable, among other changes.
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9th Circuit lifts injunctions against public charge rule

What’s the story? A three-judge panel of the United States Court of Appeals for the 9th Circuit voted 2-1 on December 5 to lift injunctions issued by federal judges in California and Washington that had blocked a Trump administration rule detailing how agencies are to determine the admissibility of aliens who are likely to become “public charges” (e.g., dependent on public assistance).
The ruling stated that the public charge rule is a reasonable interpretation of the Immigration and Nationality Act. Judges Jay Bybee and Sandra Ikuta, both appointed by George W. Bush (R), wrote that the “public charge” phrase “is subject to multiple interpretations, it in fact has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it.”
Judge John Owens, appointed by Barack Obama (D), dissented, stating that he would have preferred for the court to have had more time to conduct an in-depth review of the policy. He also called out Congress for failing to pass immigration legislation that could have avoided the injunctions, and beseeched legislators to take a more active role in addressing immigration.
A panel of the United States Court of Appeals for the 4th Circuit on December 9 followed suit by lifting a separate injunction by a 2-1 vote.
One additional nationwide injunction blocking the rule is currently on appeal before the United States Court of Appeals for the 2nd Circuit.
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In the states

Oklahoma health department request for lower budget confuses legislators

What’s the story? Commissioner Gary Cox of Oklahoma’s Department of Health recently asked state legislators to reduce state funding for the 2021 fiscal year by 1.5%, or roughly $4.5 million. (The department’s complete 2021 budget proposal, including federal funds, totals $427 million.)
Cox’s request resulted in confusion among legislators, some of whom called the proposal counterintuitive and claimed that agencies rarely seek reduced funding. “In my nine years here, this is the first agency that has come to a committee meeting I’ve been a part of and asked for less money,” said state Senator Frank Simpson (R).
Cox told legislators that the proposal aims to reduce costs by eliminating unnecessary and duplicative jobs. The cost savings would be directed toward improving department efficiency by hiring nurses, health educators, and other health department employees.
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New Hampshire governor opposes federal highway edict

What’s the story? New Hampshire Governor Chris Sununu on November 27 said that the state should refuse to implement a 2009 federal regulation that requires highway exit numbers to correspond with mileage markers.
New Hampshire, Delaware, and Massachusetts are the only three states that have yet to fully comply with the federal mandate.
Sununu argued that local businesses who use the state’s sequential exit numbers in their marketing campaigns would incur hefty costs to change their marketing materials; that GPS has made mileage-based systems irrelevant; and that New Hampshire citizens have an emotional connection to their local highway exit signs.
“I don’t know about you, but I love the fact that I grew up as an Exit 3 kid in Salem,” said Sununu via Twitter. “Exit numbers are a point of pride for some of us in NH, and we shouldn’t let Washington bureaucrats threaten to take that away!”
The New Hampshire Department of Transportation estimated that the change would cost $1 million.
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Suppressing dissent in commissions

Attorney Todd Phillips, writing in the November 11th Notice & Comment blog (of the Yale Journal on Regulation) expresses concern over the potential supression of dissent on government commissions. The issue presented itself, he said, in a recent opinion by Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals in a case challenging the release of statements by members of the Commodity Futures Trading Commission. According to Judge Easterbrook, “every member of the Commission has a right to publish an explanation of his or her vote,” but only because of a statute specific to the CFTC.
But what of commissioners for whom no such specific statute exists?
According to Phillips,
“Administrative law currently does not have a good way of dealing with commission minorities and ensuring they are able to articulate their concerns with the actions of the majority. Perhaps it should.”
Click here to read the full post.

Regulatory Tally

Federal Register

  • The Federal Register in November reached 65,906 pages. The number of pages at the end of each November during the Obama administration (2009-2016) averaged 73,485 pages.
  • The November Federal Register included 150 proposed rules and 245 final rules. These included amended Venezuela sanctions, changes to the recruitment requirements for H-2B foreign workers, and the removal of the Colorado butterfly plant from the endangered species list due to its recovery, among others.
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Office of Information and Regulatory Affairs (OIRA)

OIRA’s October regulatory review activity included:
  • Review of 46 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 47 significant regulatory actions each November.
  • Approved three proposed rules without changes.
  • Recommended changes to 42 proposed rules.
  • Agencies withdrew one rule from the review process.
  • As of December 17, 2019, the OIRA website listed 135 regulatory actions under review.
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