Checks and Balances: Chevron deference at stake

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 administrative pushback against vaccine mandates; developments in a case before the U.S. Supreme Court (SCOTUS) that could limit future applications of Chevron deference; a proposal that would institute removal protections for the director of the Office of Personnel Management (OPM); and the Biden administration’s recertification of the union representing immigration judges. 

At the state level, we take a look at an effort by Minnesota state senators to limit executive branch emergency powers; a struggle between Florida and the U.S. Department of Education over funding for school districts with mask mandates; and an executive order for the Alaska governor aiming to defend the state from what he considers to be federal overreach.

We also highlight disparate views across the media landscape regarding SCOTUS’ pending ruling on Chevron deference. As always, we wrap up with our Regulatory Tally, which features information about the 164 proposed rules and 259 final rules added to the Federal Register in November and OIRA’s regulatory review activity.

In Washington

Responses to Biden administration’s vaccine mandates 

What’s the story? 

Judges and lawmakers in the last month have acted in response to the Biden administration’s coronavirus (COVID-19) vaccination requirements for healthcare workers, federal contractors, and certain private businesses.

Healthcare workers: Judge Terry Doughty of the U.S District Court for the Western District of Louisiana on November 30 blocked nationwide enforcement of the Centers for Medicare and Medicaid’s (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds, arguing that the mandate exceeds the agency’s authority. Judge Matthew Schelp of the United States District Court for the Eastern District of Missouri had blocked enforcement of the requirement in 10 states the previous day.

Federal contractors: Judge R. Stan Baker of the U.S. District Court for the Southern District of Georgia on December 7 issued a nationwide injunction blocking enforcement of the Biden administration’s vaccine requirement for federal contractors, arguing in part that the requirement constituted a matter of “vast economic and political significance.” Judge Gregory F. Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky on November 30 had blocked the requirement for federal contractors in Kentucky, Ohio, and Tennessee.

Private businesses: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on December 17 lifted a stay blocking enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees, claiming in part that the mandate fits within OSHA’s delegated authority. The U.S. Court of Appeals for the Fifth Circuit in November had issued a nationwide injunction blocking the requirement, arguing in part that the requirement exceeds OSHA’s authority. Challengers appealed the Sixth Circuit’s decision to the U.S. Supreme Court.

U.S. Senators Joe Manchin (D-W.Va.) and John Tester (D-Mont.) on December 8 joined Republican colleagues in a 52-48 vote supporting a resolution of disapproval under the Congressional Review Act (CRA) that aims to rescind the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees. The vote advanced the resolution to the Democrat-controlled U.S. House of Representatives for consideration. 

White House Press Secretary Jen Psaki stated that President Joe Biden (D) would veto the CRA resolution if it passed the House and that the U.S. Department of Justice would defend the vaccine requirements in court.

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SCOTUS hears argument in case that could limit Chevron deference

What’s the story? 

The U.S. Supreme Court on November 30 heard oral argument in American Hospital Association v. Becerra, a case that could affect the scope of agency powers by limiting future applications of Chevron deference.

The case challenges a 2018 U.S. Department of Health and Human Services (HHS) decision to reduce the reimbursement rate that HHS pays certain hospitals for treating Medicare patients. A hospital coalition filed suit, arguing that HHS’ decision in the absence of adequate supporting data violated the Medicare statute. The case questions whether courts should exercise Chevron deference and defer to HHS’ formulation of Medicare drug reimbursement rates according to the agency’s statutory interpretation.

The court “appeared receptive to the claim that Medicare overstepped its authority when it cut the amount that it paid certain hospitals for drugs they dispensed in their outpatient departments,” observed University of Michigan law professor Nicholas Bagley in an analysis for SCOTUSblog. “None of the justices voiced sympathy with the government’s argument that Congress had precluded judicial review of the question,” Bagley continued, adding that “several of the conservative justices toyed with the possibility of abandoning Chevron deference.”

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Proposal for OPM director removal protections advances to House floor

What’s the story?

The House Oversight and Reform Committee on December 2 voted 25-14 to advance the Strengthening the Office of Personnel Management (OPM) Act—legislation that would enact removal protections for the OPM director in an effort to mitigate political interference with the agency. Opponents of the bill argued that removal protections would effectively insulate the OPM director from political accountability.

The bipartisan legislation would (1) require the president to nominate a nonpartisan OPM director with experience in human capital management, (2) instruct the president to provide good cause before firing the director, and (3) name the director as the president’s principal advisor on federal workforce issues, among other provisions.

The bill’s cosponsors, Representatives Gerry Connolly (D-Va.), Carolyn Maloney (D-N.Y.), and Brian Fitzpatrick (R-Penn.), drew the proposals from a March report on OPM by the National Academy of Public Administration, a congressionally chartered nonprofit organization. Congress in December 2019 directed NAPA to study OPM after pausing consideration of President Donald Trump’s (R) proposal to merge the agency’s responsibilities into the General Services Administration and the Executive Office of the President.

“We successfully stopped the previous administration from abolishing OPM,” said Connolly in a statement upon introducing the bill, “now we have a responsibility to rebuild and modernize the agency.”

Opponents of the legislation argued in committee that the provisions would remove the OPM director from direct presidential oversight. “Instead of providing needed reform measures, the Strengthening the OPM Act fosters more unaccountable bureaucracy,” said Rep. James Comer (R-Ky.). “It requires a non-partisan appointment of the OPM director. That severs the OPM director from political accountability.” 

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Biden administration recertifies immigration judges’ union 

What’s the story? 

The Biden administration on December 7 reinstated the National Association of Immigration Judges (NAIJ) as the collective bargaining unit of the U.S. Department of Justice’s (DOJ) immigration judges (IJs), reversing the Trump administration’s decision to decertify the union.

The Federal Labor Relations Authority (FLRA) ordered the union’s decertification in November 2020, arguing that IJs—a type of federal administrative adjudicator—constitute management officials for collective bargaining purposes. The union entered into a subsequent period of administrative uncertainty following procedural disagreements between NAIJ and DOJ over the union’s decertification status.

DOJ in June sought permission from FLRA to rescind the Trump administration’s decertification order. In a December 7 settlement agreement between NAIJ and DOJ’s Executive Office of Immigration Review (EOIR), the agency agreed to once again recognize NAIJ as the IJs’ collective bargaining unit. 

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In the states

Minnesota legislators attempt to limit governor’s emergency powers through senate confirmation

What’s the story? 

Republican state senators in Minnesota are attempting to use their confirmation authority to limit the governor’s emergency powers by tying the confirmation of state Department of Health Commissioner Jan Malcolm to a prohibition on state-issued coronavirus (COVID-19) vaccine requirements.

The Minnesota Constitution authorizes the state Senate to confirm the governor’s appointment of agency commissioners. Governor Tim Walz (D) took office in January 2019, but lawmakers have delayed confirmation of all but three of his commissioner appointments (though most of Walz’s appointees have been serving in their pending roles). Republican state senators in 2020 rejected two of Walz’s appointments due to regulatory disagreements, including agency responses to the coronavirus (COVID-19) pandemic.

Democratic state legislators scuttled plans for a fall special session after Republican members threatened to reject Malcolm’s appointment unless Democrats agreed to prohibit state-issued vaccine mandates. Republican state senators, including Senate Majority Leader Jeremy Miller, expressed concerns about what they consider to be Malcolm’s lack of receptivity to legislative input on the department’s pandemic responses and her potential support for vaccine requirements. State Senator Jim Abeler (R) further claimed that, in his view, Malcolm hasn’t sufficiently warned Minnesotans about potential vaccine side effects.

Democratic House Speaker Melissa Hortman argued that Republicans are using Malcolm’s appointment as a bargaining chip to limit the executive branch’s emergency powers. “The Republicans in the Minnesota Senate have gone to an extreme in the way they are using commissioner confirmations,” Hortman told the Minneapolis Star Tribune.

Walz had not called a special session as of December 15. In the absence of a special session, Malcolm’s appointment would go before the state Senate when the regular legislative session convenes in January.

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Florida, feds square off over funding school districts with mask mandates

What’s the story? 

The Florida State Board of Education on November 16 authorized Education Commissioner Richard Corcoran to challenge the U.S. Department of Education’s (ED) cease-and-desist order aimed at preventing the state’s withdrawal of funds from school districts with mask mandates. 

The board on August 17 voted to withhold money from the school districts in Alachua and Broward counties in response to the districts’ continued mask mandates despite a prohibition on such mandates by the state Department of Public Health. The withheld funds aimed to align with the monthly salaries of school board members. ED responded by starting a federal grant program to offset the state’s penalties, but Florida countered by withholding state funds equal to the federal grants. A November 5 ruling from a state administrative law judge upholding the health department’s order later brought the school districts into compliance. 

ED on October 28 filed a cease-and-desist order with its Division of Administrative Law Judges, arguing that Florida had violated federal law by reducing state funding to districts based on the receipt of federal funds. Corcoran argued that the federal grant program violated state sovereignty and declared his intent to “vigorously defend the state’s authority to control its educational system.”

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Alaska governor issues order aiming to defend state sovereignty 

What’s the story? 

Alaska Governor Mike Dunleavy (R) on November 2 issued an executive order aiming to defend the state’s sovereignty against what Dunleavy considers to be the Biden administration’s overreach in response to the coronavirus (COVID-19) pandemic.

“The Biden Administration has imposed a long list of encroachments against the State of Alaska in attempts to control the health and welfare of Alaskans,” said Dunleavy in a statement. “The recent actions or attempts are threatening the State’s sovereign authority under the 10th Amendment.”

Dunleavy’s order cites Biden administration proposals requiring financial institutions to provide information to the Internal Revenue Service regarding certain private bank accounts, instructing federal law enforcement to monitor parents opposed to school district policies as domestic terrorists, and mandating coronavirus vaccines for federal contractors and certain private businesses.

The order instructs the state attorney general to defend Alaska against such policies in court and prohibits state agencies from furthering “any action by a federal agency that infringes on the constitutional rights of Alaskans.”

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Opposing views on the future of Chevron deference

The U.S. Supreme Court is poised to issue a ruling in American Hospital Association v. Becerra that could affect future applications of Chevron deference. Media outlets have taken different views of the forthcoming decision, both supporting and opposing a ruling that could potentially limit agency authority.

Professors Richard A. Epstein and Mario Loyola contributed an opinion piece to The Wall Street Journal arguing that a potential ruling narrowing applications of Chevron deference would serve to rein in agency authority. “Chipping away at Chevron won’t by itself solve the larger problem in the rise of the administrative state,” claimed the authors. “But curbing abuses in agency rulemaking by returning to the Administrative Procedure Act would be a good start.”

Staff writer Matt Ford of The New Republic, on the other hand, argued that such a ruling would empower judges to substitute their reasoning for that of neutral policy experts. “That would be a massive shift in the separation of powers—maybe back to Congress and the American people themselves, as Gorsuch and the other justices have suggested, but certainly towards the unelected judges who would be freed from the burden of deference to, well, anyone,” wrote Ford.

Want to go deeper

  • Click here to read “The Supreme Court’s Chance to Rein In the Regulatory State” in The Wall Street Journal.
  • Click here to read “The Supreme Court Is Poised to Sabotage the Administrative State” in The New Republic.

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 41 significant regulatory actions. 
  • Three rules approved without changes; recommended changes to 37 proposed rules; one rule withdrawn from the review process.
  • As of December 1, 2021, OIRA’s website listed 75 regulatory actions under review.
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