Checks and Balances: IRS walks back use of facial recognition technology

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 latest legal challenges to the Biden administration’s vaccine mandates; an overview of new regulatory costs and paperwork requirements issued during President Joe Biden’s (D) first year in office; new U.S. Supreme Court cases challenging agency power and structure; and an about-face from the Internal Revenue Service (IRS) on its plan to use facial recognition technology. 

At the state level, we take a look at changing approaches to statewide school mask requirements.

We also highlight recent scholarship from Columbia University law professor Philip Hamburger that examines the nondelegation doctrine through a new lens of different constitutional principles. As always, we wrap up with our Regulatory Tally, which features information about the 163 proposed rules and 251 final rules added to the Federal Register in January and OIRA’s regulatory review activity.

In Washington

Legal challenges to vaccine mandates continue

What’s the story? 

Federal coronavirus (COVID-19) vaccine requirements have been at the center of judicial activity since the start of the new year. Though the U.S. Supreme Court on January 13 blocked enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees (arguing 6-3 that the rule exceeded OSHA’s authority), other federal vaccine mandates remained in place as of February 19, 2022.

The following list features updates on the Biden administration’s vaccine requirements for healthcare workers, federal contractors, federal employees, and Head Start employees:

  • Healthcare workers: The U.S. Supreme Court on January 13 upheld the Centers for Medicare and Medicaid Services’ (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds, ruling 5-4 that the mandate fell within the Secretary of Health and Human Services’ statutory authority.

Tennessee Governor Bill Lee (R) on February 4 announced that Tennessee and a coalition of 15 other states had filed a renewed legal challenge to the healthcare worker vaccine mandate in the United States District Court for the Western District of Louisiana. The plaintiff states claim in part that the mandate is arbitrary and capricious in light of the developing science around COVID-19.

  • Federal contractors: The United States Court of Appeals for the Eleventh Circuit on December 17, 2021, declined expedited review of a lower court’s nationwide injunction that blocked enforcement of the Biden administration’s vaccine requirement for federal contractors. Other court rulings have blocked the mandate in specific states. Oral argument of the case before the Eleventh Circuit is tentatively scheduled for April 2022.
  • Federal employees: A three-judge panel of the United States Court of Appeals for the Fifth Circuit voted 2-1 on February 9 to deny the Biden administration’s request to lift a nationwide injunction blocking its vaccine requirement for federal employees. Judge Jeffrey Brown of the U.S. District Court for the Southern District of Texas had issued the injunction on January 21, arguing that the administration had overstepped its authority.
  • Head Start employees: The U.S. Department of Health and Human Services (HHS) on November 30, 2021, issued an interim final rule mandating vaccination for employees and contractors of federal Head Start programs. District court judges had blocked the mandate in 24 states and four Michigan school districts as of February 19.

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Biden administration regulatory costs, paperwork requirements exceed first-year totals of Obama and Trump administrations 

What’s the story? 

President Joe Biden’s (D) administration added $201 billion in new regulatory costs and roughly 131 million hours in new annual paperwork requirements during Biden’s first year in office, according to new research from the American Action Forum. The new regulatory costs and paperwork requirements exceeded the first-year totals added by both the Obama and Trump administrations. 

The Biden administration’s new regulatory costs amounted to three times those added during the Obama administration’s inaugural year and almost 40 times those added during the Trump administration’s first year. The new paperwork requirements exceeded the Obama and Trump administrations’ first-year totals by 123 million hours and 105 million hours, respectively.

A new vehicle emissions rule issued by the Environmental Protection Agency (EPA) instituted $180 billion in new regulatory costs—the bulk of the Biden administration’s first-year total. The majority of the administration’s new paperwork requirements stemmed from actions related to the coronavirus (COVID-19) pandemic response. 

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SCOTUS to hear new cases challenging agency power, structure

What’s the story?

The U.S. Supreme Court on January 24 agreed to hear two new cases during its October term 2022-2023 that challenge the authority and structure of federal agencies.

The first case, Sackett v. Environmental Protection Agency (EPA), concerns the scope of the EPA’s authority to determine what wetlands are considered to be “Waters of the United States” under the Clean Water Act (CWA). Idaho residents Chantell and Michael Sackett in 2008 challenged an EPA order to remove sand and gravel fill on their property. The agency claimed that the Sacketts’ property contained wetlands subject to regulation under the CWA. The Sacketts disagreed, arguing that the EPA lacked jurisdiction to issue the order. The United States Court of Appeals for the Ninth Circuit ruled in favor of the EPA in 2021, holding that the CWA covers the Sacketts’ property. The Sacketts appealed to the U.S. Supreme Court for clarification about which wetlands are covered by the CWA. 

The second case, Axon Enterprise Inc. v. Federal Trade Commission, questions whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission (FTC) if plaintiffs have not first raised such challenges during agency adjudication proceedings. Axon Enterprise Inc., a police body camera company subject to antitrust proceedings before the FTC, has argued in part that the double for-cause removal protections afforded to the FTC’s administrative law judges unconstitutionally insulate them from presidential control. The United States Court of Appeals for the Ninth Circuit upheld the lower court’s ruling that district courts do not have authority to review constitutional challenges to the agency’s structure before the agency considers those challenges through adjudication.

The Supreme Court’s October term 2022-2023 begins on October 3, 2022.

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IRS abandons plan to use facial recognition technology

What’s the story? 

The Internal Revenue Service (IRS) this month walked back its plan to require facial recognition technology for Americans to access their tax returns online after objections from members of Congress. 

The IRS entered into a partnership last year with the private contractor to require verification through facial recognition technology in order for Americans to digitally access their tax returns. The agency changed course on February 7, however, after members of Congress raised bipartisan concerns about privacy rights, accuracy, and regulatory oversight of facial recognition technology.

The initial support for facial recognition technology by the IRS highlights the disparate approaches to its use by federal agencies. Unlike the IRS, the Government Services Administration (GSA) has declined to require the use of facial recognition technology to access—a portal allowing public access to services provided by participating federal agencies. A GSA representative told The Washington Post that GSA “is committed to not deploying facial recognition … or any other emerging technology for use with government benefits and services until rigorous review has given us confidence that we can do so equitably and without causing harm to vulnerable populations.”

An August 2021 survey of 24 federal agencies by the Government Accountability Office (GAO) found that 18 of the agencies surveyed used facial recognition technology in some capacity.

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In the states

States shift gears on school mask mandates

What’s the story? 

State policies on school mask mandates are in a state of flux in light of court rulings and changing approaches to address the coronavirus (COVID-19) pandemic. As of February 19, 12 states require masks in schools, 31 states leave school mask requirements up to local authorities, and five states prohibit school mask requirements. The following list provides an overview of recent changes to school mask mandates in selected states: 

  • New York: New York Governor Kathy Hochul (D) allowed the statewide mask mandate to expire on February 10, but kept the school mask mandate in place. Hochul stated that she would reassess the school mask requirements in the first week of March.
  • Virginia: Virginia Governor Glenn Youngkin (R) on February 16 signed a new state law allowing parents to decide whether or not their children wear masks in schools. The law requires schools to end their mask mandates by March 1. Youngkin’s Executive Order Two had attempted the same outcome but faced legal challenges arguing that it violated a state law requiring schools to follow masking guidance from the U.S. Centers for Disease Control and Prevention (CDC).
  • Illinois: The Illinois Fourth District Appellate Court on February 17 upheld a lower court order that nullified emergency rules from the state’s Department of Education and Department of Public Health requiring masks in schools, among other school requirements in response to the coronavirus (COVID-19) pandemic. Governor J.B. Pritzker (D) stated that he would seek an expedited review of the decision by the Illinois Supreme Court.
  • New Jersey: New Jersey Governor Phil Murphy (D) on February 7 announced that masks will no longer be required for students, staff, or visitors in schools and childcare facilities effective March 7, citing the decline in statewide COVID-19 cases.

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A new understanding of the nondelegation doctrine

Recent scholarship from Columbia University law professor Philip Hamburger puts forth a new approach to understanding the nondelegation doctrine. Hamburger examines the interactions between the nondelegation doctrine and related concepts—including principles of consent, different powers, separation, and exclusivity—to support his constitutional vision barring the transfer of powers between branches of government:

From the abstract: 

“The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

“This Article examines the Constitution’s treatment of the problem. Whereas other scholarship tends to focus narrowly on a single concept, whether delegation or vesting, this piece takes a more ecumenical approach. It uncovers layers of relevant concepts, showing how each contributes to the Constitution’s vision. …

“​​The Article thereby goes far beyond existing scholarship in showing how fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination of underlying principles, framing assumptions, and text.”

Want to go deeper

  • Click here to read “Nondelegation Blues” by Philip Hamburger

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 26 significant regulatory actions. 
  • Two rules approved without changes; recommended changes to 22 proposed rules; two rules withdrawn from the review process.
  • As of February 1, 2022, OIRA’s website listed 83 regulatory actions under review.
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