Checks and Balances: Biden EO spurs removal of publicly available guidance document portals

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 the removal of publicly accessible guidance document portals by federal agencies in response to President Joe Biden’s (D) Executive Order 13992; three U.S. Supreme Court decisions affecting rulemaking practices, issue exhaustion requirements, and the scope of agency authority; and the latest efforts by federal lawmakers to use the Congressional Review Act (CRA) to reject administrative rules issued during the last months of the Trump administration. 

At the state level, we take a look at a pair of cases before the Wisconsin Supreme Court that could help distinguish between legislative and agency authority in the state; varying state responses to federal nullification proposals; and state efforts to limit enforcement of federal gun laws. 

We also highlight a new paper examining lessons from the states on applying the nondelegation doctrine. As always, we wrap up with our Regulatory Tally, which features information about the 183 proposed rules and 254 final rules added to the Federal Register in April and OIRA’s regulatory review activity.

In Washington

Biden EO spurs removal of publicly available guidance document portals

What’s the story? Federal agencies are working to comply with an executive order issued by President Joe Biden (D) that requires agencies to remove their publicly accessible guidance document portals. 

Guidance documents are not legally binding, but rather serve to explain, interpret, or advise interested parties about rules, laws, and procedures. A 1992 report from the Administrative Conference of the United States (ACUS), however, found that agencies sometimes use guidance in ways that give those documents the same authority as legally binding rules.

Guidance documents are not typically collected in federal publications such as the Federal Register or the Code of Federal Regulations. President Donald Trump’s (R) Executive Order 13891 directed federal agencies to create agency-specific, publicly available guidance document portals to catalogue agency guidance.

E.O. 13891 mirrored the intent of the Guidance out of Darkness Act—legislation that received bipartisan support in the last two Congresses, including the support of then-Senator Kamala Harris (D).

Biden’s E.O. 13992 of January 20 revoked six Trump executive orders, including E.O. 13891. Biden’s order claimed that the rescinded orders constituted “harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront [the coronavirus disease 2019 (COVID19) pandemic, economic recovery, racial justice, and climate change].” By revoking the orders, E.O. 13992 aimed to provide federal agencies with the “flexibility to use robust regulatory action to address national priorities.”

In a February 8 letter to Biden, 21 Republican senators opposed the directive.

More than 70 agencies and departments (not including numerous sub-agencies) set up guidance document portals pursuant to E.O. 13891, according to an analysis from the Competitive Enterprise Institute (CEI). Ten agencies have since removed their portals as of March 30. 

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SCOTUS issues opinions on rulemaking, issue exhaustion, agency authority

What’s the story? The U.S. Supreme Court issued three opinions since our last edition concerning administrative rulemaking practices, issue exhaustion requirements, and the scope of agency authority. Here are the highlights:

The court on April 1 issued a unanimous opinion in Federal Communications Commission (FCC) v. Prometheus Radio Project in which Justice Brett Kanaugh applied the zone of interest test to uphold broadcast ownership changes issued by the FCC, which challengers claimed were based on flawed data. The court ruled that the FCC had reasonably considered the effects of its orders when it changed the broadcast ownership rules in 2017 and, therefore, the challenged rulemaking did not violate the arbitrary-or-capricious test. The ruling clarified that the Administrative Procedure Act does not require reasonable agency decision-making to rely on perfect empirical or statistical data.

“Judicial review under [the arbitrary-or-capricious] standard is deferential, and a court may not substitute its own policy judgment for that of the agency,” wrote Justice Kavanaugh in the opinion. “A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.”

The court on April 22 issued a unanimous opinion in Carr v. Saul holding that issue exhaustion requirements, which require individuals to present legal objections in front of an agency before they can address those objections in federal court, do not apply to Appointments Clause challenges concerning the administrative law judges (ALJ) of the Social Security Administration.

“Taken together, the inquisitorial features of SSA ALJ proceedings, the constitutional character of petitioners’ claims, and the unavailability of any remedy make clear that ‘adversarial development’ of the Appointments Clause issue ‘simply [did] not exist’ (and could not exist) in petitioners’ ALJ proceedings,” wrote Justice Sonia Sotomayor in the opinion. “The Courts of Appeals therefore erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims.”

Lastly, the court on April 22 unanimously checked the authority of the Federal Trade Commission in AMG Capital Management, LLC v. Federal Trade Commission. The court held that Section 13b of the Federal Trade Commission Act does not authorize the agency to seek certain forms of equitable monetary relief, nor does it authorize courts to award such relief.

“If the Commission believes [its] authority too cumbersome or otherwise inadequate, it is, of course, free to ask Congress to grant it further remedial authority,” wrote Justice Stephen Breyer in the opinion. “We must conclude, however, that §13(b) as currently written does not grant the Commission authority to obtain equitable monetary relief.”

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U.S. Senate advances CRA resolution, courts review CRA practices

What’s the story? Democratic members of Congress introduced six resolutions of disapproval under the Congressional Review Act (CRA) prior the April 4 deadline. One resolution aiming to restore Obama-era methane emissions standards passed the U.S. Senate on April 28.

CRA resolutions create a path for lawmakers to review federal rules issued during the final months of the Trump administration (after August 21, 2020) and vote to reject them.

To reject a rule, both chambers of Congress must pass a resolution disapproving the rule and President Joe Biden (D) must sign the resolution into law. 

Most recently, the U.S. Senate on April 28 voted 52-42 to pass a CRA resolution blocking a September 2020 rule by the Environmental Protection Agency (EPA) that reversed the Obama administration’s methane emissions standards. If passed by the House and signed into law, the resolution would restore standards set by the Obama administration.

Meanwhile, a coalition of county governments are appealing a CRA-related case, Kansas Natural Resource Coalition v. U.S. Fish and Wildlife Service, to the U.S. Supreme Court. The petitioners argue that the Environmental Protection Agency violated the CRA by failing to submit an Endangered Species Act regulation to Congress for its review. Agencies fail to submit about 12 percent of their rules to Congress for CRA review, according to the Cato Institute.

The district court dismissed the case on jurisdictional grounds and the United States Court of Appeals for the Tenth Circuit affirmed the lower court’s decision.

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In the states

Wisconsin Supreme Court to distinguish between legislative and agency authority

What’s the story? Two environmental cases in Wisconsin have pitted the state legislature against the state Department of Natural Resources (DNR) in a disagreement over which government entity is authorized to regulate water pollution and irrigation practices. The court’s decisions could help clarify the bounds of legislative and agency authority in the state.

In Clean Wisconsin, Inc. v. DNR, challengers sued the DNR in an effort to compel the agency to enforce its water pollution regulations. 

After an administrative law judge (ALJ) ordered the agency to limit the size of a dairy herd causing nearby groundwater contamination, the DNR under then-Governor Scott Walker (R) did not enforce the ALJ’s order. The agency argued that Wisconsin Act 21—a 2011 law that prohibits state agencies from taking actions not specifically authorized by the state legislature—prohibited the agency from acting on the order.

A Dane County judge in 2016 held that the DNR had the authority to limit the size of the dairy herd to address water pollution. The DNR appealed the decision to the Wisconsin Supreme Court. The current DNR has changed its position under Governor Tony Evers (D) and now claims that it has the authority to regulate in the case.

In a second consolidated case, challengers sued the DNR seeking stricter enforcement of regulations regarding large-scale water withdrawals for irrigation. Challengers claim that the agency failed to consider the cumulative negative impact on water levels in nearby lakes and streams when it issued permits for nine high-capacity wells. As in the previous case, the DNR argued that Act 21 prevented the agency from considering the cumulative impact of the new wells. 

In its request for the Wisconsin Supreme Court to hear the case, a three-judge panel of the Wisconsin Court of Appeals District II stated that “the court’s determination regarding the scope and breadth of Act 21 will have implications far beyond the permitting process for high capacity wells and pollution discharge elimination systems and will touch every state agency within Wisconsin.”

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States give mixed response to federal nullification proposals

What’s the story? Lawmakers in Alaska, Arkansas, Iowa, Montana, North Dakota, Texas, and Utah have considered or implemented legislation that, in the view of state lawmakers, would allow the states to ignore some federal laws and orders. Last month, we reviewed similar legislation in Idaho, which failed to clear the Senate State Affairs Committee on May 3.

The Alaska Senate State Affairs Committee on April 14 considered legislation filed by state Senator Lora Reinbold (R) that would provide a vehicle for state lawmakers to nullify federal statutes, regulations, or executive orders that state legislators deem to exceed the scope of federal powers.

Reinbold expects the legislation to move quickly through the Republican-majority Alaska State Senate. In the Alaska House of Representatives, which is controlled by a coalition majority, the bill is expected to face questions over potential conflicts with the Supremacy Clause in Article VI of the U.S. Constitution. According to the Supremacy Clause, laws under the federal government’s authority preempt overlapping state laws. 

Concerns about potential conflicts with the Supremacy Clause contributed to the failure of a similar proposal in the Republican-majority North Dakota Legislative Assembly.

On the other hand, Utah Governor Spencer Cox (R) on March 23 and Arkansas Governor Asa Hutchinson (R) on April 8 signed comparable legislation into law specific to executive orders. Montana Governor Greg Gianforte (R) signed similar legislation into law on April 23. A nearly identical bill is also pending in the Republican-majority Iowa General Assembly. 

In the Republican-majority Texas State Legislature, pending legislation would direct state agencies not to implement any federal regulations deemed unconstitutional.

Michael Maharrey, a spokesman for the 10th Amendment Foundation, told the Anchorage Daily News that the Alaska bill and others are “part of a broader movement we’ve seen this year — particularly in Republican-controlled legislatures — to review federal acts and attempt to rein in federal overreach.”

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States seek non-enforcement of federal gun laws

What’s the story? Republican state lawmakers in more than a dozen states have moved to limit state and local law enforcement agencies from administering certain federal gun laws. The lawmakers aim to counteract what they view as the potential for the Democratic-controlled federal government to pass federal firearms legislation.

These states include Alabama, Arkansas, Nebraska, Oklahoma, South Carolina, Tennessee, Wyoming, Montana, New Hampshire, North Dakota, South Dakota, West Virginia, and Iowa.

Lawmakers in some states, including Montana, have advanced or approved proposals to nullify any new federal firearms restrictions, such as ammunition limits or weapon bans.

In other states, such as Arizona and Tennessee, lawmakers have moved to prevent state and local police from enforcing federal gun laws deemed in violation of the Second Amendment. Arkansas lawmakers on April 28 overrode a veto by Governor Asa Hutchinson (R) to enact such legislation. 

Lawmakers in states such as Utah and Alabama are seeking to nullify federal gun laws altogether.

Opponents of federal firearms non-enforcement bills claim that the legislation creates confusion for state and local law enforcement and could run afoul of the U.S. Constitution’s Supremacy Clause. Opponents also compare current legislation to similar laws passed by several states under former President Barack Obama (D), which judges have since ruled unconstitutional.

Supporters of the legislation argue that the federal government, pursuant to the Second and Tenth Amendments, does not have the authority to regulate the ownership of firearms. Some state lawmakers, including Arizona state Representative Leo Biasiucci (R), have compared the nullification proposals to state-level marijuana legislation that legalizes marijuana despite federal law.

“The main issue there is the Supremacy Clause,” Jacob Charles, executive director of the Center for Firearms Law at Duke Law School, told the Associated Press

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State lessons in nondelegation

Law professor Jonathan Adler recently highlighted two new papers from administrative law scholars Benjamin Silver and Daniel Walters that put forth lessons on the nondelegation doctrine gleaned from state-level experience.

Silver’s paper, “Nondelegation in the States,” argues that disparate state nondelegation practices are rooted in common themes drawn from the separation of powers and sovereign authority:

“American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine’s disparate and varied applications.” 

Walters’ paper, “Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting,” examines state-level applications of the nondelegation doctrine to help inform how the United State Supreme Court’s decision in Gundy v. United States could affect its nondelegation jurisprudence:

“This article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, I show that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than are states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Court actually does over a series of cases, not in what it says it is going to do. Moreover, it suggests significant limitations in the ability of the Gundy dissent’s approach to provide any ex ante guidance to Congress, the lower courts, or even future Supreme Courts about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 22 significant regulatory actions. 
  • No rules approved without changes; recommended changes to 20 proposed rules; two rules subject to a statutory or judicial deadline.
  • As of May 3, 2021, OIRA’s website listed 46 regulatory actions under review.
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