Checks and Balances: Kansas proposal would create legislative veto over agency rules

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 check in on the approaching deadline to repeal end-of-term regulatory activity by the Trump administration via the Congressional Review Act. We also review recent SCOTUS activity concerning administrative law, and a new Biden executive order that rescinded executive orders related to the administrative state issued by former President Donald Trump (R). 

At the state level, we take a look at a proposed constitutional amendment in Kansas that would create a legislative veto over state agency rules; a ruling from the Wyoming Supreme Court that thwarted a local commission’s attempted enforcement of nonbinding guidance; and an effort by Washington state lawmakers to limit state agency use of artificial intelligence (AI) technology. 

We also highlight a new Working Paper Series that examines the Administrative Procedure Act (APA) on its 75th anniversary. As always, we wrap up with our Regulatory Tally, which features information about the 157 proposed rules and 264 final rules added to the Federal Register in January and OIRA’s regulatory review activity.

In Washington

April 4 is the deadline for Congress to repeal regulatory activity from the end of the Trump administration

  • What’s the story? The Biden administration has until April 4 to use the provisions of the Congressional Review Act (CRA) to repeal final rules issued at the end of the Trump administration. 
  • The CRA is a federal law passed in 1996 that creates a 60-day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule.
  • The February 3 edition of the Congressional Record stated that Congress has 60 days from February 3 to use the CRA to rescind regulations and informal rules issued at the end of the Trump administration. Daniel Pérez, a senior policy analyst at the George Washington University Regulatory Studies Center, estimated there may be as many as 1,354 of these rules.
  • The law defines this 60-day period as days where Congress is in continuous session. This means the projected deadline to block end-of-term regulatory activity from the Trump administration is April 4. That date could move later into April if either chamber of Congress adjourns for longer than three days before then.
  • Since the law’s creation in 1996, Congress has used the CRA to repeal 17 rules published in the Federal Register. Before 2017, Congress had used the CRA successfully one time—in 2001—to overturn a rule on ergonomics in the workplace. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. Congress ultimately repealed 16 rules using the CRA during the Trump administration.
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SCOTUS to weigh in on administrative law cases

  • What’s the story? The U.S. Supreme Court in the last month heard oral arguments in two administrative law cases that raise questions about the scope of executive control of agencies and the separation of powers.
  • In United States v. Arthrex Inc., the court will determine whether department heads have the authority to appoint administrative patent judges (APJs) or whether the U.S. Constitution requires that APJs be appointed by the president with the advice and consent of the U.S. Senate. The court heard oral arguments in the case on March 1.
  • In the consolidated cases Carr v. Saul and Davis v. Saul, the court will clarify whether Appointment Clause challenges must first be exhausted through administrative appeals within the Social Security Administration before they can be heard by the federal courts. Willie Carr, a litigant in the case, appealed his SSA benefits denial to the federal courts and added to his appeal the claim that the administrative law judge (ALJ) who decided his case was improperly appointed. The court heard oral arguments in the case on March 3.
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Biden revokes additional Trump executive orders on the administrative state

  • What’s the story? President Joe Biden (D) on February 24 issued Executive Order 14018: Revocation of Certain Presidential Actions that revoked a series of executive orders and presidential memoranda issued by former President Donald Trump (R), including two executive orders related to regulatory practice.
  • Biden previously issued three executive orders during his first days in office that revoked 10 executive orders issued by former President Donald Trump (R) related to energy regulation policy, regulatory procedure, and the civil service.
  • E.O. 14018 revoked Trump’s E.O. 13772: Core Principles for Regulating the United States Financial System, which put forth a set of standards, or core principles, to guide regulatory actions that impact the financial industry. The core principles sought to foster economic growth, advance the domestic and international competitiveness of American companies, and streamline financial regulations, according to the order.
  • Biden’s recent order also revoked Trump’s Executive Order 13979: Ensuring Democratic Accountability in Agency Rulemaking, which aimed to increase executive oversight of agencies by preventing career agency staff from authorizing regulations.
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In the states

Kansas proposal would create legislative veto over agency rules

  • What’s the story? Kansas Attorney General Derek Schmidt (R) and a group of Republican state lawmakers on February 23 proposed a constitutional amendment that would allow voters to create a legislative veto over state executive agency rules. 
  • The amendment would allow lawmakers to repeal or suspend state executive agency rules with the goal of increasing legislative oversight of regulatory activity.
  • Lawmakers passed similar legislation in 1984, but the Kansas Supreme Court ruled it unconstitutional. The proposed constitutional amendment would permit the legislative veto.
  • “Our system of government requires checks and balances,” said Schmidt. “This proposal would check the power of the ever-growing administrative state by making sure the final power to make law rests where it should – with the people’s elected representatives in the Legislature – and restore balance by requiring real accountability for rules, regulations and executive orders.”
  • Senate President Ty Masterson (R), House Speaker Ron Ryckman (R), Senate Vice President Rick Wilborn (R), House Speaker Pro Tem Blaine Finch (R), Senate Majority Leader Gene Suellentrop (R) and House Majority Leader Dan Hawkins (R) joined with Schmidt in support of the proposal.
  • Democratic lawmakers have stated opposition to the proposal. “The Legislature already has oversight over agencies in the executive branch,” said Senate Democratic Leader Dinah Sykes. “The proposed amendment is nothing more than yet another attempt by … Republican leadership to undermine Governor Kelly and her cabinet.”
  • If approved by both chambers of the state legislature, the constitutional amendment would appear before Kansas voters on the November 2022 ballot.
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Wyoming Supreme Court rejects commission’s attempted use of binding guidance

  • What’s the story? The Wyoming Supreme Court on February 1 unanimously rejected a local planning commission’s effort to enforce a nonbinding guidance document as if it were a regulation with the force of law.
  • The court ruled in Asphalt Specialties Co., Inc. v. Laramie County Planning Commission that the commission could not rely on its guidance document detailing a comprehensive land-use vision plan to block Asphalt Specialties Co. from moving forward with a mining operation on its land. 
  • In an opinion by Justice Lynne J. Boomgaarden, the court stated that the commission’s authority only allowed it to restrict land use on zoned properties. Since the company’s property was not zoned, the commission had no authority to direct its land use. “The Commission … exceeded its statutory authority when it utilized its comprehensive land use plan and the site plan review process to outright deny ASCI use of its land for a limited gravel mining operation,” wrote Boomgaarden.
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Washington lawmakers seek to limit agency use of artificial intelligence 

  • What’s the story? A bill in the Washington State Legislature aims to restrict state government agencies’ use of artificial intelligence (AI) technology. The legislation targets automated decisions systems—algorithms that analyze data to facilitate government decision making.
  • Senate Bill 5116, sponsored by state Senators Bob Hasegawa (D), Sam Hunt (D), Patty Kuderer (D), and Claire Wilson (D), would prohibit state agencies from using AI that either produces what are deemed discriminatory outcomes or renders final decisions that affect the rights of state residents. The bill would also prevent state agencies from using AI-enabled technology for certain profiling practices in public spaces. 
  • In order to use an automated decision system, agencies would be required to provide publicly available accountability reports ensuring that the technology is not discriminatory. 
  • The ACLU of Washington and a coalition of digital rights groups support the legislation. “What this bill would give Washington the opportunity to do is set a precedent, raise awareness of the issue that peoples’ lives are being affected by algorithmic decision making tools,” said ACLU project manager Jennifer Lee in an interview with Geekwire. 
  • During a January hearing of the Senate State Government and Elections Committee, law enforcement and tech groups expressed concern about the legislation’s potentially negative implications for red light cameras, fingerprint analysis, and other common government AI uses. “We just want to make sure there aren’t unintended consequences on uses that are pretty standard,” said Vicki Christopherson of the Internet Association.
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The APA turns 75

In recognition of the Administrative Procedure Act’s (APA) 75th anniversary, the C. Boyden Gray Center for the Study of the Administrative State organized a Working Paper Series featuring new analysis from administrative law scholars on the APA’s origins, procedures, and proposed reforms. The series features the following scholarship:

The C. Boyden Gray Center will publish the full Working Paper Series on the APA’s 75th anniversary in the Spring 2021 edition of the George Mason Law Review.

  • Want to go deeper
    • Click here for a link to the Working Paper Series.

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s February regulatory review activity included the following actions:

  • Review of 16 significant regulatory actions. 
  • No rules approved without changes; recommended changes to eight proposed rules; eight rules withdrawn.
  • As of March 1, 2021, OIRA’s website listed 22 regulatory actions under review.
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