Checks and Balances- August 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) decision to hear a federal immigration policy challenge; a federal appellate court ruling that could affect future agency approaches to midnight rulemaking; and new legislation that proposes to make federal employees removable at-will. 

At the state level, we take a look at court cases in Ohio and Wisconsin affecting state-level approaches to deference and delegation, respectively, as well as a request from a coalition of secretaries of state for federal agencies to cease state-level voter registration efforts.

We also highlight a new examination of the major questions doctrine from administrative law scholar Eli Nachamany describing what he views as the doctrine’s three distinct applications. As always, we wrap up with our Regulatory Tally, which features information about the 157 proposed rules and 223 final rules added to the Federal Register in July and OIRA’s regulatory review activity.

In Washington

SCOTUS agrees to hear challenge to DHS immigration policy

What’s the story?

The United States Supreme Court on July 21, 2022, agreed to hear a case that questions whether the U.S. Department of Homeland Security’s (DHS) September 2021 guidance directing immigration enforcement officials to prioritize the arrest and deportation of certain groups of individuals who entered the country without legal permission violates federal immigration law and the Administrative Procedure Act (APA).

The court’s decision in the case could clarify the administrative procedures the executive branch must follow in order to issue guidance concerning immigration policy. The decision could also clarify whether district courts have the authority to vacate immigration policies issued by the executive branch.

The DHS policy directs the department to focus its deportation efforts narrowly on suspected terrorists, individuals who committed serious crimes, and noncitizens caught at the border. Texas and Louisiana challenged the policy, arguing in part that the directive ignores provisions of federal immigration law mandating the detention of a broader group of certain criminal individuals who entered the country without legal permission.

Judge Drew Tipton of the United States District Court for the Southern District of Texas on June 10 vacated the policy, claiming that it is “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.” The United States Court of Appeals for the Fifth Circuit declined to put the district court ruling on hold while the federal government appealed. The Supreme Court agreed to hear the case but voted 5-4 not to reinstate the policy pending review by the court.

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D.C. Circuit ruling could make it harder to withdraw midnight rules

What’s the story? 

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 22, 2022, ruled 2-1 that federal agencies must follow notice-and-comment rulemaking requirements in order to rescind agency rules made available for public inspection but not yet published in the Federal Register. The ruling could affect an incoming presidential administration’s ability to withdraw midnight rules issued in the final days of an outgoing administration.

The Federal Register Act requires the Office of the Federal Register to make rules available for public inspection at least one day before publishing the final rule in the Federal Register. The case concerns an Obama-era U.S. Department of Agriculture (USDA) rule affecting show horses that was made available for public inspection but not yet published in the Federal Register when President Donald Trump (R) took office and directed agencies to withdraw all unpublished rules. A coalition of groups led by the Humane Society sued the USDA, arguing in part that the agency must go through notice-and-comment rulemaking to withdraw the rule because it had become final at the date of public inspection. 

Judge David Tatel wrote for the majority, joined by Judge Patricia Millet, arguing that rules made available for public inspection prior to publication in the Federal Register have passed the “regulatory point of no return” and can be considered final rules for the purposes of withdrawal. Judge Tatel claimed that the Federal Register Act “contemplates that a rule may be prescribed before publication in the Federal Register,” adding that the Administrative Procedure Act (APA) thus “requires the agency to undertake notice and comment before repealing it.”

Judge Neomi Rao, former administrator of the Office of Information and Regulatory Affairs during the Trump administration, dissented, arguing that the majority opinion based its claim on an “obsolete” provision of the Federal Records Act and ignored “statutes that govern the rulemaking process and the established judicial precedent setting the finality of agency action at publication” in the Federal Register.

The decision could affect future agency approaches to midnight rulemaking—a phenomenon that occurs when outgoing presidential administrations issue rules at a higher rate between election day in November and inauguration day the following January. The ruling would prevent incoming presidential administrations from withdrawing certain midnight rules without first engaging in the notice-and-comment process. 

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New federal legislation proposes at-will removal of federal employees

What’s the story?

Representative Chip Roy (R-Texas) on July 28, 2022, introduced the Public Service Reform Act (PSRA)—legislation that aims to mitigate federal employee actions that run counter to executive branch priorities by making federal employees removable at-will. The PSRA had 11 Republican cosponsors as of August 17, 2022.

Federal civil service members enjoy merit system protections that aim in part to protect nonpartisan federal employees from politically motivated firings. Roy argues that, in practice, such protections have insulated the civil service from political oversight and allowed federal employees to work in support of policy preferences that do not align with those of the elected president. In addition to making federal employees removable at-will, the bill would also eliminate the Merit Systems Protection Board (MSPB), the agency tasked with reviewing employee removal appeals. Under Roy’s proposal, federal employees would appeal their removal directly to their supervisors, who could be overruled by agency heads.

“My bill would make all federal bureaucrats at-will employees—just like private sector workers—and claw back the inordinate protections some federal employees grossly abuse while helping legitimate whistleblowers and victims of discrimination get the justice they deserve,” said Roy in a press release.

Don Kettl, emeritus professor at the University of Maryland School of Public Policy, expressed concern that certain provisions of the bill, such as a 14-day period for the Office of Special Counsel to make recommendations on alleged whistleblower appeals, could “dramatically change the incentives for individuals who are being dismissed because of whistleblowing,” according to Government Executive

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In the states

Ohio Supreme Court hears argument in deference challenge

What’s the story? 

The Ohio Supreme Court on July 12, 2022, heard oral argument in TWISM Enterprises LLC v. State Board of Registration for Professional Engineers and Surveyors, a case that could determine the future of judicial deference in the state.

​​The Hamilton County Court of Appeals in TWISM deferred to the Ohio Board of Registration for Professional Engineers and Surveyors’ interpretation of its engineering certification rules, which denied TWISM Enterprises’ application to provide professional engineering services because the company’s designated licensed engineer was an independent contractor rather than an employee. TWISM Enterprises appealed the decision to the Ohio Supreme Court, arguing that the agency’s interpretation of the governing statute was flawed because the law does not specify that the licensed engineer must be an employee of the business.

The board largely avoided making deference claims in its argument and instead sought to bolster its view that Ohio law requires licensed engineers to be business employees, according to an analysis by attorney John Kerkoff for Notice and Comment. Though the board still asked for deference to its statutory interpretation, it stated that the court did not need to use the case to resolve ambiguity around Ohio’s approach to a mandatory Chevron deference framework.

“If the Court accepts the Board’s invitation to ignore deference, it will likely only tighten the Gordian Knot confounding lower courts,” argued Kerkoff. “After all, as Justice DeWine previously explained, Ohio has no deference ‘doctrine.’ It has a hodgepodge of ad hoc approaches leading to widespread uncertainty.”

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Wisconsin Supreme Court declines to narrow state’s nondelegation doctrine

What’s the story? 

The Wisconsin Supreme Court on July 8, 2022, voted 3-1-3 in Becker v. Dane County to uphold a delegation of authority to a local health officer to issue and enforce a prohibition on certain public gatherings during the coronavirus (COVID-19) pandemic. The plurality declined to alter the court’s approach to nondelegation jurisprudence.

Plaintiffs in the case argued in part that the state legislature and Dane County unlawfully delegated authority to a local health officer to issue and enforce a public health order banning certain gatherings during the coronavirus (COVID-19) pandemic.

In a split decision, three justices held that the public health order constituted a permissible delegation of legislative authority because existing legislative and judicial oversight mechanisms were sufficient to guard against any overreach of authority by the local health officer. In his concurrence agreeing with the three justices’ conclusion, Justice Brian Hagedorn wrote, “For nearly 100 years, this court has mostly taken a hands-off approach to claims of impermissible delegation of legislative power. We have upheld laws that assign policymaking to executive bodies based primarily on whether the law contains sufficient procedural protections to curb abuses of delegated power. While not without some substantive limits, we have generally looked the other way if procedural protections ‘will adequately assure that discretionary power is not exercised unnecessarily or indiscriminately.’”

The dissenting justices argued that the plurality misinterpreted state laws governing delegations to local health entities and exercised “judicial complacence” by basing their decision on procedural protections rather than vested authority. Justice Rebecca Bradley wrote, “Although on paper this court claims to require some substantive limits on delegated legislative power, it has heavily preferred ‘procedural safeguards.’ … Such complacence does not comport with the original meaning of the vesting clauses, which the court has an obligation to restore.”

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Secretaries of state challenge federal voter registration directive

What’s the story? 

A coalition of fifteen secretaries of state on August 3, 2022, signed a letter requesting that President Joe Biden (D) rescind Executive Order 14019, which directs federal agencies to develop state-level voter registration programs. The secretaries claim that such agency activity exceeds their authority and disregards state laws governing election processes.

President Biden on March 7, 2021, issued E.O. 14019 directing federal agencies in part to develop voter registration plans in states that use agency services or programs. The order states, “It is the responsibility of the Federal Government to expand access to, and education about, voter registration and election information, and to combat misinformation, in order to enable all eligible Americans to participate in our democracy,”

The secretaries of state argued that federal agencies do not possess the constitutional or statutory authority to engage in voter registration activities. The U.S. Constitution, they argue, “clearly says the state legislatures shall (emphasis added) prescribe the way elections are run, and that if any adjustments need to be made, such adjustments are the province of Congress, not the Executive branch.” Voter registration plans developed by federal agencies would, in their view, duplicate state-level efforts and ignore state voting laws.

The fifteen secretaries of state hold office in the following states: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Nebraska, Ohio, South Dakota, Tennessee, West Virginia, and Wyoming.

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Three versions of the major questions doctrine

Administrative law scholar Eli Nachmany in July argued in Notice and Comment that the major questions doctrine—the principle recognized by the U.S. Supreme Court in West Virginia v. Environmental Protection Agency holding that Congress must speak clearly for agencies to regulate on questions of economic or political significance—is actually what he refers to as a “major questions canon” that comprises three separate doctrines.

Nachmany first cites Cass Sunstein’s scholarship identifying what Sunstein considers to be two versions of the major questions doctrine: a “weak version” that constrains Chevron deference and a “strong version” that prevents agencies from exercising authority not clearly granted by Congress. Nachmany further claims that Justice Brett Kavanaugh identified a third version of the major questions doctrine in his 2019 statement regarding the court’s denial of certiorari in Paul v. United States, arguing that the major questions doctrine could serve as a triage tool for the court to weed out nondelegation claims challenging less significant agency actions from those concerning major policy questions.

Nachmany provides the following bulleted list describing what he considers to be three major questions doctrines:

  • The major questions carve-out to Chevron deference
    • Exemplified by: King v. Burwell
    • Rule: Courts will not apply the deferential two-step Chevron framework to an agency’s interpretation of a statute when the interpretive question is one of deep economic and political significance.
    • Upshot: This carve-out weakens the Chevron doctrine without abandoning it entirely and channels “major questions” cases out of Chevronland.
  • The major questions canon of statutory interpretation
    • Exemplified by: West Virginia v. EPA
    • Rule: In extraordinary cases, courts will demand a clear statement from Congress before an agency can claim broad authority in the context of an issue of national political and economic significance.
    • Upshot: This canon of interpretation operates as a sub-canon of constitutional avoidance, skirting issues of nondelegation by resolving cases on statutory grounds.
  • The major questions triage rule
    • Exemplified by: Justice Kavanaugh’s statement respecting the denial of certiorari in Paul v. United States
    • Rule: Apply the nondelegation doctrine to statutes involving major policy questions, but not to provisions of law that are “less-major” or that permit an agency to fill up the details of a statutory scheme.
    • Upshot: The nondelegation doctrine would only be applicable in the big cases

Want to go deeper

  • Click here to read the full text of “There Are Three Major Questions Doctrines” by Eli Nachmany. 


Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 47 significant regulatory actions. 
  • Six rules approved without changes; recommended changes to 40 proposed rules; one rule withdrawn from the review process.
  • As of August 1, 2022, OIRA’s website listed 105 regulatory actions under review.
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