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 review effects of the coronavirus pandemic on federal agency rulemaking and adjudication; federal agency efforts to boost access to N95 respirator masks; Justice Neil Gorsuch’s argument against the use of Chevron deference in criminal cases; and a recent SCOTUS decision making it easier to challenge certain deportation cases.

At the state level, we review a challenge over the scope of the Kansas governor’s emergency powers and the temporary suspension of recently enacted plastic bag bans. We also highlight the on-going tracking of deregulatory actions in response to the coronavirus outbreak. As always, we wrap up with our Regulatory Tally, which features information about the 161 proposed rules and 281 final rules added to the Federal Register in March and OIRA’s regulatory review activity.

The Checks and Balances Letter

In Washington

Coronavirus pandemic has mixed effects on agency rulemaking and adjudication

What’s the story? Federal agencies are moving forward with rulemaking and adjudication during the coronavirus outbreak, albeit with technological modifications and revised timelines in certain cases.

Rulemaking: Agency rulemaking is continuing during the coronavirus outbreak, despite calls from some, including state attorneys general, to pause rulemaking until the pandemic passes. Weekly published rule totals in the Federal Register are on pace with previous years of the Trump administration, and the Federal Register reached its highest running page total in the first week of April since 2013.

Selected pending regulations include a revised proposed rule from the Environmental Protection Agency (EPA) modifying the agency’s approach to certain scientific data, a proposed rule from the Federal Labor Relations Authority (FLRA) allowing government workers to stop paying union dues after one year, and an EPA proposal to modify an Obama-era regulation governing coal-burning power plant waste.

Comment periods: As agency rulemaking continues, state and local governments and federal lawmakers have asked federal agencies to pause or extend their comment periods during the coronavirus outbreak. The Office of Management and Budget (OMB) advised agencies to extend comment periods on a case-by-case basis. The EPA and the Consumer Financial Protection Bureau (CFPB) extended public comment periods for selected rules, including the EPA’s proposal to modify its approach to certain scientific data. The U.S. Food and Drug Administration (FDA), which has an internal regulation requiring public comment on its guidance documents, announced on March 20 that it would implement coronavirus guidance documents without holding comment periods and would allow for revisions based on public feedback at a later date.

Adjudication: Agency adjudication is continuing during the coronavirus outbreak and many agencies, including the Board of Veterans Appeals, the Internal Revenue Service, and the Social Security Administration, have suspended in-person hearings in favor of video or telephone hearings where feasible. Other agencies, such as the National Labor Relations Board (NLRB), have suspended hearings until a later date.

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Federal agencies respond to respirator masks requirements

What’s the story? Demand for N95 respirator masks—the type of mask used to protect healthcare workers from coronavirus—has put pressure on the federal government’s emergency supply and led some agencies to suspend regulations in an effort to boost mask availability.

The U.S. Department of Health and Human Services stated in early March that the nation’s stockpile of N95 respirator masks would likely meet only one percent of anticipated demand during the coronavirus outbreak.

In response to the shortage, the Federal Emergency Management Agency (FEMA) on March 22 granted discretion to Puerto Rico and other U.S. territories to purchase personal protective equipment, including masks, produced outside the United States. Federal law otherwise requires the territories to purchase personal protective equipment produced in the United States—limiting their flexibility to manage the supply shortage.

In another response, the U.S. Food and Drug Administration (FDA) on March 24 issued an Emergency Use Authorization allowing health care workers to use protective masks that meet comparable N95 specifications in Europe as well as Australia, Brazil, Japan, South Korea, and Mexico. On April 3, the agency issued guidance permitting the use of the alternative KN95 mask produced in China.

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Justice Gorsuch argues against Chevron deference in criminal cases

What’s the story? U.S. Supreme Court Justice Neil Gorsuch on March 2 released a statement critical of applying Chevron deference to laws involving criminal penalties.

Gorsuch’s statement accompanied the U.S. Supreme Court’s decision not to hear Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, a case challenging the Trump administration’s decision to outlaw bump stocks through regulation.

Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Gorsuch argued that Chevron “has nothing to say about the proper interpretation of the law” at issue in the bump stock case because “whatever else one thinks about Chevron, it has no role to play when liberty is at stake.”

In 2018, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a rule that expanded the definition of machinegun in the Gun Control Act and National Firearms Act to include bum stocks, devices that allow semi-automatic firearms to shoot more than once with a single pull of the trigger using recoil energy to keep firing. Under the rule, owners of bump stock devices must destroy or surrender them or face federal prison time.

Gorsuch agreed with the court’s decision not to take the case, but stated that “waiting should not be mistaken for lack of concern.”

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SCOTUS makes it easier to challenge deportation decisions

What’s the story? The U.S. Supreme Court on March 24 ruled 7-2 in the consolidated cases Guerrero-Lasprilla v. Barr and Ovalles v. Barr that courts may review how immigration agencies applied the law in certain deportation cases, allowing noncitizens in these cases the opportunity to challenge their deportation orders in federal court.

Congress barred federal courts from reviewing decisions of the Bureau of Immigration Affairs (BIA) in deportation appeals brought by noncitizens convicted of certain crimes—except in cases that raise questions of law.

The court ruled that the questions of law exception applies when federal appellate courts review BIA decisions that apply a legal standard to undisputed facts in the case. A longstanding presumption in favor of judicial review of administrative actions, argued the majority in part, gives federal courts the authority to review agency applications of legal standards to objective facts in order to ensure that the agency applied the legal standard correctly.

Though the court’s decision only applies to a small subset of deportation cases, it helped clarify the scope of judicial review over BIA appeals.

Justice Stephen Breyer delivered the opinion of the court joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

Justice Clarence Thomas wrote a dissenting opinion, joined in part by Justice Samuel Alito. Thomas argued in part that the majority expanded the scope of judicial review beyond the meaning of the statutory text, which he claimed does not allow the questions of law exception to apply to mixed questions of law and fact.

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In the states

Lawmakers challenge Kansas governor’s emergency powers

What’s the story? Republican legislators in Kansas challenged Democratic Governor Laura Kelly over the scope of the governor’s emergency powers during the coronavirus outbreak.

The Republican-majority Kansas Legislature on March 19th unanimously passed a resolution ratifying Kelly’s emergency declaration, but prohibiting her from using her emergency powers to limit the sale of firearms or seize ammunition.

On April 8, Republican members of the Legislative Coordinating Council (LCC)—the state’s acting legislative body while the full legislature is out of session—voted to reverse Kelly’s executive order limiting religious gatherings and funerals, claiming that the order unfairly targeted religious groups.

Kansas Attorney General Derek Schmidt (R) further directed police officers and prosecutors not to enforce the order, stating, “I am confident Kansans of faith can be trusted to follow that important advice without their government threatening criminal sanctions for disobedience.”

Kelly responded on April 9 by filing suit against the LCC in the Kansas Supreme Court, arguing that the resolution approving the emergency declaration did not transfer the legislative authority to reverse executive orders to the LCC. “Not only does this action threaten the lives of Kansans,” stated Kelly, “it runs directly contrary to the Kansas Constitution.”

The Kansas Supreme Court upheld Kelly’s order on April 11, arguing that the legislature’s resolution ratifying Kelly’s emergency declaration did not grant the LCC the authority of the full legislature to overrule the governor’s action.

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Coronavirus puts pause on plastic bag bans

What’s the story? State and local governments nationwide have suspended or delayed enforcement of plastic bag bans in the fight against coronavirus.

Officials in Maine, New York, New Hampshire, Oregon, and local jurisdictions across the country (as of April 8) had limited the use of reusable bags during the coronavirus outbreak due to scientific studies demonstrating that reusable bags might harbor bacteria and viruses.

The Maine Legislature delayed enforcement of its plastic bag ban, which was scheduled to take effect on March 17, until June 15. New York state officials delayed enforcement of its plastic bag ban, which a lawsuit had already delayed until April 1, until May 15.

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Tracking deregulation post-COVID-19

Americans for Tax Reform (ATF) is tracking the on-going suspension of federal and state regulations in response to the coronavirus outbreak. ATF had identified 230 suspended or waived regulations as of April 10, including the following selected actions:

• “FDA allows state leeway in virus testing

‘The FDA will allow states to take responsibility for tests developed and used by laboratories within their borders. The labs will not have to pursue Emergency Use Authorization from the agency, an emergency clearance that is normally required.’ – STAT News (3/16/20)

• FDA loosens regulations on distribution of newly developed tests

‘Under certain circumstances, the agency will not object to any manufacturers that distribute newly developed tests before the FDA grants emergency clearance, and a similar stance will be taken toward labs that use these new tests.’ – STAT News (3/16/20)

• EPA easing enforcement of environmental legal obligations

‘The EPA will exercise the enforcement discretion specified below for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic…

The consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results. As a result, there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations, and statutes. These consequences may affect reporting obligations and milestones set forth in settlements and consent decrees. Finally, these consequences may affect the ability of an operation to meet enforceable limitations on air emissions and water discharges, requirements for the management of hazardous waste, or requirements to ensure and provide safe drinking water… The enforcement discretion described in this temporary policy do not apply to any criminal violations or conditions of probation in criminal sentences. Appropriate consideration of potential criminal liability is discussed separately.” – U.S. Environmental Protection Agency (3/26/20)’

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Regulatory tally

Federal Register

• The Federal Register in March reached 18,104 pages. The number of pages at the end of each March during the Obama administration (2009-2016) averaged 17,767 pages.
• The March Federal Register included 161 proposed rules and 281 final rules. These included a rule banning the use of electrical shock therapy devices for certain behaviors, a rule discontinuing the Disaster Loan Program, and a rule implementing changes to the federal Health Professional Scholarship Program (HPSP).

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Office of Information and Regulatory Affairs (OIRA)

OIRA’s recent regulatory review activity includes:

• Review of 41 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 42 significant regulatory actions each March.
• Two rules approved without changes; recommended changes to 38 proposed rules; one rule withdrawn.
• OIRA reviewed 27 significant rules in March 2019, 19 significant rules in March 2018, and one significant rule in March 2017.
• As of April 2, 2020, OIRA’s website listed 121 regulatory actions under review.

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