|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 legal challenge to 2020 census changes; a proposal from the U.S. Department of Justice (DOJ) to modernize the federal Administrative Procedure Act (APA); and agency rulemakings from the U.S. Department of Labor (DOL) and the DOJ that seek to limit the use of guidance documents.
At the state level, we examine a concurring opinion from a Pennsylvania Supreme Court justice expressing misgivings about judicial deference as well as procedural challenges to coronavirus response efforts.
We also highlight new scholarship proposing that internal administrative law changes, rather than judicial action, can narrow applications of Chevron deference as well as new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining whether state administrative agencies can choose whether to follow formal adjudication procedures. As always, we wrap up with our Regulatory Tally, which features information about the 176 proposed rules and 267 final rules added to the Federal Register in August and OIRA’s regulatory review activity.
Census changes face challenge
DOJ urges Congress to modernize administrative procedures
Agencies move to rein in guidance practices
In the states
Pennsylvania Supreme Court justice expresses misgivings about judicial deference
Coronavirus emergency powers challenged on procedural grounds to mixed results in state lawsuits
Narrowing Chevron Deference through Administrative Law
New scholarship from law professor Christopher Walker argues that Chevron deference can be narrowed through internal changes to administrative law processes rather than judicial action. Walker focuses on the use of Chevron deference in the context of immigration policy, arguing that the application of Chevron to immigration questions is inappropriate since immigration policies are most often formulated through adjudication rather than rulemaking. Walker proposes that federal regulators should shift the formulation of immigration policy from adjudication to rulemaking in order to shore up Chevron’s theoretical foundations of agency expertise, deliberation, and political accountability.
“Indeed, on closer examination, the theoretical foundations for Chevron deference crumble in the immigration adjudication context. Chevron’s core rationale for congressional delegation and judicial deference—agency expertise—is particularly weak when it comes to immigration adjudication. Unlike in other regulatory contexts, the statutory ambiguities immigration adjudicators address seldom implicate scientific or other technical expertise. The second leading and related rationale— deliberative process—is even weaker here than in other adjudicative contexts. After all, immigration adjudication is on the fringe of the ‘new world of agency adjudication.’ It is not formal adjudication under the Administrative Procedure Act (APA), lacking many of the signature procedural protections afforded in APA-governed formal adjudication. The third central rationale—political accountability—may at first blush seem compelling in immigration adjudication, due to the Attorney General’s final decision-making authority. Building on Hickman and Nielson’s framing, however, we argue that agency-head review is necessary yet insufficient for Chevron’s accountability theory. The theory should encompass a robust public engagement component, with public notice and an opportunity to be heard for those—beyond the parties in the adjudication itself—who would be affected by the agency’s statutory interpretation. Agency adjudication seldom provides that, and perhaps even less so when it comes to immigration adjudication.”
Ballotpedia study shows that 46 states allow administrative agencies to choose whether to follow formal adjudication procedures
A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 46 state constitutions or APAs allow administrative agencies to choose whether to follow formal adjudication procedures in administrative hearings as of August 2020.
Ballotpedia examined provisions permitting state agencies to use informal adjudication here.
Office of Information and Regulatory Affairs (OIRA)
OIRA’s recent regulatory review activity includes:
This Checks and Balances newsletter is part of Ballotpedia’s Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking.
You can view an index of these pages here. View the pages and you will come away knowing the difference between the administrative state, the regulatory state, and the dark state—and so much more. New entries to our encyclopedia are added weekly.