Checks and Balances- July 2022

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 United States Supreme Court’s (SCOTUS) recent decision affecting Chevron deference and the major questions doctrine; new federal legislation aiming to make task force guidance subject to the Congressional Review Act (CRA); and the continued revival of sue and settle at the Environmental Protection Agency (EPA). 

At the state level, we take a look at a court case challenging a California ballot measure’s effect on pork production in other states as well as a recent court decision arguing that bumblebees are, in fact, fish.

We also highlight a new article from administrative law scholar Joseph Postell examining the ambiguity of expertise in the administrative state. As always, we wrap up with our Regulatory Tally, which features information about the 199 proposed rules and 279 final rules added to the Federal Register in June and OIRA’s regulatory review activity.

In Washington

SCOTUS rolls out major questions doctrine, stays silent on Chevron 

What’s the story?

The United States Supreme Court in June issued decisions in two administrative law cases concerning judicial review of agency actions. While the court officially ushered in the major questions doctrine, it stayed silent on the future of Chevron deference.

In West Virginia v. Environmental Protection Agency, the court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff. Post-decision commentary questioned how the decision could affect other delegations of authority and whether the major questions doctrine would replace Chevron deference as the court’s preferred tool for reviewing challenges to agency authority.

In Biden v. Texas, the court ruled 5-4 to uphold the U.S. Department of Homeland Security’s memoranda ending the Migrant Protection Protocols (MPP) program as a lawful final agency action consistent with federal immigration law and the Administrative Procedure Act (APA)—allowing the Biden administration to move forward with its plan to end the MPP. The decision in the case helped clarify the scope of agency discretion regarding immigration policy as well as the types of agency actions that the court considers to be final agency actions pursuant to the APA.

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Senators propose broadening the Congressional Review Act’s scope

What’s the story? 

U.S. Senator Dan Sullivan (R-Alaska) on June 16, 2022, introduced the Checks and Balances Act (S. 4427), which proposes to amend the Congressional Review Act (CRA) to make guidance issued by presidential task forces subject to a resolution of disapproval—a process that allows members of Congress to vote to nullify certain federal agency rules.

Sullivan stated that he authored S. 4427 in response to the Government Accountability Office’s (GAO) March determination finding that Congress cannot apply the CRA to President Biden’s coronavirus (COVID-19) vaccine mandate for federal contractors. GAO argued that the mandate did not qualify as a reviewable agency action for purposes of the CRA because President Biden’s Executive Order 14042 had directed the Safer Federal Workforce Task Force—rather than a federal agency—to bring about the mandate. GAO also claimed that the director of the Office of Management and Budget (OMB) “stepped into the shoes of the President and exercised his delegated discretionary authority when approving the Guidance, meaning OMB was not acting as an agency under CRA.”

Sullivan disagreed with the GAO’s reasoning, arguing in a press release that guidance issued by such presidential task forces, like the vaccine mandate for federal contractors, constitute “glaring loopholes in federal law.” He further argued that “Congress has a duty to check the President’s power in this area.”

U.S. Senators Cindy Hyde-Smith (R-Miss.), Steve Daines (R-Mont.), Roger Marshall (R-Kan.), and Mike Braun (R-Ind.) cosponsored the bill.

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EPA continues sue and settle revival

What’s the story?

The U.S. Environmental Protection Agency (EPA) on May 23, 2022, demonstrated its renewed commitment to sue and settle by giving notice of a proposed a consent decree establishing a timeline for the agency to publish updated 2023 biofuel blending requirements. 

Sue and settle is a term used to describe cases in which an outside group sues a federal agency in order to reach a settlement that is favorable to the regulatory goals of both. While EPA officials during the Trump administration prohibited sue and settle, describing it as “regulation through litigation,” Biden officials later reinstated the practice, referring to sue and settle as a “practical, economical and efficient path forward” for the EPA.

The EPA’s May consent decree aims to settle a lawsuit brought by the biofuel trade association Growth Energy in which the group asked the federal courts to set a timeline for the EPA to publish updated biofuel blending requirements for 2023. The settlement requires the EPA to propose 2023 requirements no later than September 16, 2022, and finalize those requirements by April 28, 2023.

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In the states

SCOTUS to examine effect of California pork regulations on interstate commerce

What’s the story? 

A case scheduled for argument before the U.S. Supreme Court during the upcoming term questions whether a California ballot measure regulating the in-state sale of pork products unlawfully regulates pork producers in other states. National Pork Producers Council v. Ross could clarify whether such state-specific actions, which can carry widespread regulatory implications for other states, violate federalism principles and the dormant Commerce Clause.

California voters in 2018 passed Proposition 12, which prohibited the sale of pork products in the state unless pork producers house their livestock according to certain space requirements and directed state agencies to issue implementing regulations. Plaintiffs in the case claim that California voters, who consume 13% of the nation’s pork but raise roughly 0.13% of the nation’s breeding herd, effectively forced out-of-state farmers to follow California’s agriculture regulations rather than the regulations in their own states. Such state action, according to plaintiffs, violates federalism principles and the dormant Commerce Clause—a legal doctrine derived from the Constitution’s Commerce Clause that bars states from passing legislation that ostensibly regulates interstate commerce.

The U.S. Department of Justice in June filed an amicus brief in support of pork producers, arguing in part, “​​States may not otherwise regulate out-of-state entities by banning products that pose no threat to public health or safety based on philosophical objections to out-of-state production methods or public policies that have no impact in the regulating State.” 

Wayne Pacelle, president of the nonprofit groups Animal Wellness Action and the Center for a Humane Economy, disagreed with the Biden administration’s position. He told the San Francisco Chronicle, “It is shocking that the Biden administration is attacking the rights of states to enact anti-cruelty and food safety laws that are nonexistent at the federal level … The state’s interest in protecting the interests of Californians could not be clearer.”

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California court claims insects are fish to uphold bumblebee regulation

What’s the story? 

The California Third District Court of Appeals of May 31, 2022, upheld a broad interpretation of the California Endangered Species Act (CESA) that allows the California Fish and Game Commission to consider bumblebees as fish under the meaning of the act and, therefore, to list them as endangered species. 

The CESA speaks to birds, mammals, fishes, amphibians, reptiles, and plants, but is silent on insects. The California Fish and Game Commission in 2019 nonetheless accepted a petition to list four bumblebee species as endangered. Agricultural groups sued and Judge James P. Arguelles of the Superior Court of Sacramento County overturned the listing in Almond Alliance of California v. Fish and Game Commission, arguing that the CESA does not cover insects. 

The court of appeal disagreed, finding that the state legislature had intended that the CESA cover insects since lawmakers had previously defined “fish” in the state’s Fish and Game Code to mean “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” The court further argued that the word “invertebrate” in the Fish and Game Code definition does not strictly refer to aquatic species, stating, “Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.”

Plaintiffs in the case can appeal the decision to the California Supreme Court. No further action had been taken as of July 14, 2022.

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Examining the ambiguity of administrative expertise

A recent article in Social Philosophy and Policy from administrative law scholar Joseph Postell aims to examine the role of expertise in the administrative state: what is it, who wields it, and how it affects policy making. In “The Ambiguity of Expertise in the Administrative State,” Postell argues that the Progressive Era view favoring the separation of politics and administrative expertise was abandoned by the mid-twentieth century, resulting in continued ambiguity surrounding the notion of agency expertise:

“In short, the principle of rule by experts occupies a central but ambiguous place in the Progressives’ political theory, and in the administrative state that they founded. This essay describes the Progressives’ writings and views on the idea of expert rule in the administrative state. It then explains how the ambiguity in that idea led to political and theoretical problems that Progressives never fully resolved. These problems occupied and divided Progressives during the 1912 presidential election and throughout the 1910s and 1920s. The New Deal saw Progressives abandon the idea of neutral expertise in favor of a theory of presidential management of administration, and scholars of political science and public administration largely abandoned the separation of politics and administration by the mid-twentieth century. This leaves the place of expertise in the administrative state unclear still today. The administrative state requires both neutral expertise and democratic legitimacy but has never fully reconciled the tensions between these principles.”

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  • Click here to read the full text of “The Ambiguity of Expertise in the Administrative State” by Joseph Postell. 


Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 38 significant regulatory actions. 
  • Four rules approved without changes; recommended changes to 32 proposed rules; one rule withdrawn from the review process; one rule subject to a statutory or judicial deadline.
  • As of July 1, 2022, OIRA’s website listed 119 regulatory actions under review.
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