|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 an order from the Federal Communications Commission that moves the agency away from formal adjudication procedures; proposed rulemaking to reclassify administrative law judges in the excepted service; and new agency guidance aimed at implementing fairness principles in adjudication.
At the state level, we examine the nondelegation doctrine’s role in a Michigan case challenging coronavirus-related emergency orders; a challenge to administrative due process protections in Arizona; and a Colorado case concerning deference to state agency disciplinary procedures.
We also highlight a new book about the administrative state and new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining state-level sunset provisions for administrative rules. As always, we wrap up with our Regulatory Tally, which features information about the 178 proposed rules and 279 final rules added to the Federal Register in September and OIRA’s regulatory review activity.
New FCC order further narrows adherence to formal adjudication
OIRA directs agencies to implement fairness principles in adjudication
“a) Administrative enforcement should be prompt and fair.
(b) Administrative adjudicators should be independent of enforcement staff.
(c) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.
(d) All rules of evidence and procedure should be public, clear, and effective.
(e) Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.
(f) Administrative enforcement should be free of improper Government coercion.
(g) Administrative enforcement should be free of improper Government coercion.
(h) Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.
(i) Administrative enforcement should be free of unfair surprise.
(j) Agencies must be accountable for their administrative enforcement decisions.”
Office of Personnel Management proposes to reclassify ALJs within civil service
In the states
Nondelegation doctrine resurfaces in challenge to Michigan coronavirus orders
Administrative due process deficits challenged in Arizona
Colorado Supreme Court to consider deference to agency disciplinary decisions
New book: Law & Leviathan: Redeeming the Administrative State, by Cass Sunstein and Adrian Vermeule
Administrative law scholars Adrian Vermeule and Cass Sunstein released a new book, Law & Leviathan: Redeeming the Administrative State, that aims to defend the moral foundation of the administrative state. Drawing from the moral legal principles put forth by philosopher Lon Fuller, Vermeule and Sunstein argue that agency procedures that seek to enhance accountability and transparency in rulemaking and adjudication bolster the morality of the rule of law. The principles of law’s morality, according to the authors, can help settle conflicts in administrative law and support its just application.
In a piece for The New York Times, the authors provide snapshots of law’s morality as applied by the courts:
“In our view, courts should be taking the morality of law quite seriously. Fortunately, they often do. Indeed, many of the principles of legal morality that Professor Fuller listed have been invoked by the Roberts court in a number of domains.
“The Roberts court has emphasized, for example, that agencies must follow their own rules, reducing the risk that they will make decisions on a case-by-case basis. It has also repeatedly emphasized the importance of “reliance interests,” which arise whenever people act in ways that depend on existing rules, and thus the court has worked to combat unduly rapid changes in the law. A recent example is the court’s decision on the “Deferred Action for Childhood Arrivals program, or DACA, which required the Department of Homeland Security to do more to consider the reliance interests of program participants. Right or wrong, the decision was animated by an account of law’s morality.
“Law’s morality also animated some lower court decisions that invalidated Obama administration initiatives. One example is the decision that issued an injunction against the Obama administration’s initial adoption of the DACA program and the related Deferred Action for Parents of Americans program, on the ground, among others, that the administration had attempted to disguise a substantive change in the law as a mere exercise of enforcement discretion. The court claimed, in effect, that there was a mismatch between rules as announced and rules as administered.”
Ballotpedia study shows that 11 states have sunset provisions for administrative rules
A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 11 state constitutions or APAs contain sunset provisions for administrative rules, as of September 2020.
Ballotpedia also examined state APAs and constitutions that provide for regulatory review bodies. View those results 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.