Checks and Balances: May 2020

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 a new dissent from Justice Clarence Thomas challenging the constitutionality of Chevron deference; the implementation of a Trump administration rule narrowing federal jurisdiction under the Clean Water Act; and a SCOTUS decision that limits the court’s ability to review certain patent decisions, even in the case of potentially unlawful agency action.

At the state level, we review an Arkansas Supreme Court decision that limits judicial deference to state agency interpretations of laws, and litigation across the country that challenges gubernatorial stay-at-home executive orders in response to the coronavirus pandemic. 

We also highlight a new analysis that calls for more robust congressional regulatory review as well as findings from Ballotpedia’s analysis of the nondelegation doctrine across the 50-states. As always, we wrap up with our Regulatory Tally, which features information about the 203 proposed rules and 243 final rules added to the Federal Register in April and OIRA’s regulatory review activity.

In Washington

Justice Thomas challenges Chevron deference’s constitutionality

    • What’s the story? Justice Clarence Thomas again argued that Chevron deference is unconstitutional in his April 23 dissent from the U.S. Supreme Court’s 6-3 decision in County of Maui v. Hawaii Wildlife Fund. 
    • Thomas argued in the dissent that Chevron deference is an unconstitutional violation of the U.S. Constitution’s Vesting Clauses, which give legislative powers to Congress, give the executive power to the president, and give the judicial power to the courts.
    • Thomas’ recent objection to Chevron deference echoes claims from his February 24 dissent against the majority’s decision not to hear Baldwin v. United States. Thomas then contended that Brand X deference—a doctrine built on the foundation of Chevron deference that requires federal courts to defer to agency interpretations of statutes even when courts previously held contrary views—appears to be “inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”
    • Thomas’ rejection of Brand X deference in the Baldwin dissent argued that the doctrine “has taken this Court to the precipice of administrative absolutism. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations.”
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Trump administration implements rule narrowing federal jurisdiction under the Clean Water Act

  • What’s the story? The Trump administration on April 21 implemented its new definition of waters that fall within the scope of those regulated under the Clean Water Act (CWA). 
  • The new waters of the United States (WOTUS) definition, effective June 22, narrows federal jurisdiction over intrastate waters as well as groundwater, roadside ditches, converted cropland, stormwater controls, and waste treatment systems.
  • The new rule, according to the Federal Register, aims “to restore and maintain the integrity of the nation’s waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress’ policy directive to preserve States’ primary authority over land and water resources.”
  • The U.S. Department of Defense (DOD) and U.S. Environmental Protection Agency (EPA) proposed a revision of the definition of WOTUS in December 2018 to replace what the Trump administration considered to be the expansion of federal powers under the Obama administration’s interpretation of the Clean Water Act. 
  • Opponents of the revision argue that the new WOTUS definition is too narrow and could risk pollution in Americans’ drinking water. Supporters of the revision believe that the Obama-era definition infringed on both individual property rights and state authority to regulate inland waters.
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U.S. Supreme Court limits its own authority to conduct judicial review of agency action

    • What’s the story? The U.S. Supreme Court on April 20 limited judicial review over a certain class of Patent Trial and Appeal Board (PTAB) decisions, limiting the scope of its own authority to review PTAB decisions and upholding the agency’s unchecked decision-making power including when it potentially violates the law.
    • The court ruled 7-2 in Thryv Inc. v. Click-To-Call Technologies LP that judges are statutorily barred from reviewing PTAB decisions that institute inter partes review (IPR)—a process that allows a third party to both challenge a previously issued patent claim and request review of the challenge before the agency. 
    • Solicitor General Noel Francisco acknowledged that the PTAB had erred in instituting the challenged IPR in violation of a statutory time limit.
    • In the opinion of the court, however, Justice Ruth Bader Ginsburg argued that a judicial review exemption in the Leahy-Smith America Invents Act (AIA) included the challenged statute governing whether the PTAB lawfully initiated IPR proceedings. The language of the AIA, wrote Ginsburg, supersedes the general understanding that courts may review agency decisions.
    • The court’s decision to read the challenged statute as within the AIA’s judicial review exemption narrows the scope of its authority to review IPR decisions by the PTAB.
    • Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, Brett Kavanaugh, Clarence Thomas, and Samuel Alito joined in all or part of the opinion.
    • Justice Neil Gorsuch wrote a dissenting opinion, joined in part by Justice Sonia Sotomayor. Gorsuch argued that the decision brings the court closer to giving away core judicial powers to agency officials, resulting in “property-taking-by-bureaucrats” that leaves private citizens at the mercy of agency decision makers. 
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In the states

Arkansas Supreme Court will no longer defer to state agency interpretations of laws

  • What’s the story? The Arkansas Supreme Court on April 9 issued a decision in Meyers v. Yamato Kogyo Co. that limited judicial deference to state agency interpretations of laws. The court held that judges should determine the meaning of state laws for themselves rather than defer to agency interpretations.
  • Justice Shawn Womack delivered the opinion of the court and argued that the judges risked “giving core judicial powers to executive agencies in violation of the constitutional separation of powers” if they did not clarify how courts should review agency decisions. 
  • Womack wrote that the power and responsibility to interpret the law lies with the judicial branch. The executive branch, on the other hand, enforces laws passed by the legislature and interpreted by the courts. He continued by claiming that by “giving deference to agencies’ interpretations of statutes, the court effectively transfers the job of interpreting the law from the judiciary to the executive. This we cannot do.”
  • Womack added that the court will review all future agency interpretations of statutes de novo and will interpret unambiguous laws based on the clear meaning of their texts. In cases where the law in question is ambiguous, an agency’s interpretation of ambiguity will be one of many tools used by the court to determine the meaning of the law.
  • Special Justice Scott Hilburn joined the opinion, Justice Karen R. Baker concurred with the decision, and Chief Justice Dan Kemp did not participate in the case. Justice Josephine Hart wrote a dissenting opinion focusing on the facts of the case and not judicial deference in general.
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Coronavirus stay-at-home orders challenged in court 

  • What’s the story? Multiple lawsuits across the country take aim at Coronavirus-related emergency executive actions that, according to challengers, exceed the governors’ executive authority.
    • Michigan: A group of five Michigan businesses on April 28 filed suit against Governor Gretchen Whitmer (D), claiming that the governor’s stay-at-home order has “placed 10 million people under house arrest, and taken jobs away from nearly 1.2 million people, all without due process of law.” Michigan Court of Claims Judge Christopher Murray ruled in favor of Whitmer on April 29, arguing that an injunction against the order would not serve the public interest “despite the temporary harm to plaintiffs’ constitutional rights.”
    • Illinois: State Representative Darren Bailey (R) filed a lawsuit claiming that Governor J.B. Pritzker (D) exceeded his emergency powers by extending the state’s stay-at-home order beyond 30 days. Clay County Court Judge Michael McHaney on April 27 narrowly exempted Bailey from the order. State Representative John Cabello (R) filed a similar lawsuit on April 29 in Winnebago County with the goal of exempting everyone in the state from Pritzker’s order. Cabello argued that the governor exceeded his authority under the Emergency Management Agency Act and created a police state without allowing citizens the right to procedural due process. 
    • Pennsylvania: A group of businesses on April 27 petitioned the U.S. Supreme Court to overturn Governor Tom Wolf’s (D) stay-at-home executive order on the grounds that the economic shutdown deprives them of property without due process. The Pennsylvania Supreme Court previously denied the group’s request to stay Wolf’s order on April 24, arguing that the plaintiffs had not “established any basis for relief” based on their challenge.
    • Wisconsin: The Wisconsin Supreme Court on May 5 heard arguments in a lawsuit filed by a group of Republican lawmakers claiming that Governor Tony Evers’ (D) stay-at-home order violates the constitutional rights of citizens. The lawmakers also argue that the Evers administration cannot continue to unilaterally extend coronavirus-related economic restrictions without input from the state legislature.
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Boosting Congress’ role in regulatory review

An analysis by William Yeatman, a Cato Institute research fellow, proposes a new framework for congressional review of administrative regulations. 

The paper argues that Congress and the executive have equal responsibilities to oversee the administrative state. Congress establishes agencies and manages appropriations, while the executive ensures the faithful execution of the law. Since President Ronald Reagan (R), the executive branch has developed a robust regulatory review process centered in the Office of Information and Regulatory Affairs (OIRA). Congress, on the other hand, has not developed a similar regulatory review process. The imbalance in agency oversight, according to the paper, has entrenched power over regulatory review in the executive branch. As a result, Congress has an equal obligation to develop a regulatory review model in order to promote liberty by serving as a check on the executive.

The paper proposes an OIRA-like congressional regulatory review process. However, since cost-benefit analyses are values-driven (and not likely to yield a consensus among both parties), the paper proposes separate regulatory review frameworks for each political party to vet administrative action.

“In this political environment, the traditional model for Article I agencies—a single organization headed by a nonpartisan director—won’t work. It’s not simply a matter of agreeing on leadership. One office cannot serve two masters with mutually exclusive conceptions of regulatory review. The only way to cut the Gordian knot of partisan disagreement is to arm each side with its own sword. Instead of adopting the historical model of a single “nonpartisan” organization, Congress should create two versions of OIRA—one for the majority and the other for the minority. Under this proposal, each side would gain its own mechanism to compete with the president for management primacy over the administrative state, in accordance with each side’s values.”

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Five pillars of the administrative state: a 50-state survey

Each of the 50 states has its own state-level Administrative Procedures Act and constitution, a number of which have stronger or weaker provisions for empowering or reining in the administrative state at the state-level. Ballotpedia has surveyed state-level APAs and constitutions, along with state court and legislative trends, to​ show how the states stack up in each of the following five areas key to understanding the nature and scope of the administrative state:

  • Delegation of legislative authority to other branches
  • Judicial deference to administrative agencies
  • Executive control of administrative agencies
  • Due process and procedural rights
  • Agency dynamics

The first survey question identified states with provisions in their constitutions or administrative procedure acts that limit the delegation of legislative authority to administrative agencies or to other branches of government. The delegation of legislative authority and limits on the authority to delegate —sometimes known as the nondelegation doctrine—is key to understanding one of the main areas of debate about the nature and scope of the administrative state.

According to the BP survey, 18 states restricted the authority of state legislatures to empower agencies or other governing bodies to make rules about certain subjects. The survey revealed the following six types of restrictions:

  1. Restrictions on delegating the power to make rules with criminal penalties
  2. Restrictions on delegating the taxing power
  3. Restrictions on delegating municipal functions
  4. Restrictions on delegating the power to regulate alcohol
  5. Restrictions on the scope of delegated power
  6. Restrictions on the subdelegation of delegated authority

Additional findings showed that 40 states, 80%, had separation of powers clauses in their constitutions. An interpretation of the vesting clause of Article I of the U.S. Constitution, coupled with separation of powers principles, forms the theoretical basis of the nondelegation doctrine at the federal level.


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Regulatory tally

Federal Register

  • The Federal Register in April reached 25,278 pages. The number of pages at the end of each April during the Obama administration (2009-2016) averaged 24,252 pages.
  • The April Federal Register included 203 proposed rules and 243 final rules. These included a medical equipment rule from the Federal Emergency Management Agency, the waters of the United States rule from the Environmental Protection Agency, and a rule from the U.S. FIsh and Wildlife Service elevating the golden conure from an endangered species to a threatened species.
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Office of Information and Regulatory Affairs (OIRA)

OIRA’s April regulatory review activity includes:

  • Review of 43 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 47 significant regulatory actions each April.
  • Eight rules approved without changes; recommended changes to 31 proposed rules; two rules withdrawn; one rule subject to a statutory or judicial deadline; one emergency rule.
  • OIRA reviewed 44 significant rules in April 2019, 32 significant rules in April 2018, and seven significant rules in April 2017.
  • As of May 1, 2020, OIRA’s website listed 123 regulatory actions under review.
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