Checks and Balances: September 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 U.S. Department of Homeland Security’s codification of the Deferred Action for Childhood Arrivals (DACA) program; a hodge-podge of remaining agency guidance document portals following President Joe Biden’s (D) removal directive; and a ruling from a panel of the United States Court of Appeals for the Eleventh Circuit finding the coronavirus (COVID-19) vaccine requirement for federal contractors unlawful. 

At the state level, we take a look at administrative rulemaking recommendations from an Indiana task force as well as a new, centralized Office of Administrative Hearings in Idaho.

We also highlight an examination of the challenges of agency incorporation by reference from law professor Emily J. Bremer. As always, we wrap up with our Regulatory Tally, which features information about the 165 proposed rules and 282 final rules added to the Federal Register in August and OIRA’s regulatory review activity.

In Washington

Biden administration codifies DACA

What’s the story?

The U.S. Department of Homeland Security (DHS) on August 24, 2022, issued a final regulation effective October 31 that codifies the existing Deferred Action for Childhood Arrivals (DACA) program, which allows certain individuals brought to the United States without legal permission as minors to continue living and working in the country. DHS Secretary Alejandro Mayorkas stated that codifying DACA aims to “preserve and fortify” the program.

President Barack Obama (D) in 2012 created DACA through a memo issued by then-DHS Secretary Janet Napolitano. The Trump administration in 2017 sought to rescind DACA, but the U.S. Supreme Court on June 18, 2020, ruled 5-4 in DHS v. Regents of the University of California that DHS did not properly follow Administrative Procedure Act (APA) procedures in its effort to end the program. A coalition of states later filed suit in Texas v. United States arguing in part that DACA was unlawfully created through a memo, rather than a rule. Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in July 2021 issued a decision in favor of the states that put a pause on new DACA applicants. The case is currently pending before the United States Court of Appeals for the Fifth Circuit, which heard oral argument in July 2022.

Secretary Mayorkas has called on Congress to pass DACA legislation, arguing in a July 2021 statement that “only the passage of legislation will give full protection and a path to citizenship to DACA recipients.” Current DACA legislation, known as the Dream and Promise Act, passed the U.S. House of Representatives in March 2021 and was pending in the U.S. Senate as of September 15, 2022.

Though codifying DACA through the rulemaking process aims to bolster the program’s procedural footing, DACA may still face legal challenges. Some litigants and judges, according to Bloomberg, question whether DHS has the authority to issue such deportation protections, which they argue may run afoul of federal immigration law.

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Public-facing agency guidance document portals in limbo

What’s the story? 

Some public-facing agency guidance document portals remained intact as of August 2022 despite a Biden administration directive to the contrary, according to a report by the Competitive Enterprise Institute (CEI). 

President Donald Trump (R) in 2019 issued Executive Order 13891, which aimed to prohibit federal administrative agencies from issuing binding rules through guidance documents and required agencies to create searchable databases of their effective guidance. President Joe Biden (D) revoked E.O. 13891 shortly after taking office in 2021 and directed agencies to take steps to unwind the order’s implementation. 

The CEI study found that federal agencies have retained public-facing access to more than 107,000 guidance documents, though the future of such guidance portals remains unclear.

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Eleventh Circuit panel finds federal contractor vaccine mandate unlawful

What’s the story?

A three-judge panel of the United States Court of Appeals for the Eleventh Circuit on August 26, 2022, found unlawful the Biden administration’s requirement that federal contractors receive a coronavirus (COVID-19) vaccine.

The judges found that the federal Procurement Act does not delegate authority to the president to require coronavirus (COVID-19) vaccination for federal contractors. Judge Britt Grant argued in the opinion that the Biden administration’s “proposed reading [of the act] rests on an upside-down view of the statutory scheme—that Congress has granted the President complete authority to control the federal contracting process in a way he thinks is economical and efficient, subject only to certain statutory limitations. The statute’s language does not support this reading.” 

Following the court’s decision, the Biden administration’s Safer Federal Workforce Task Force on August 31 updated its website with new guidance on the federal contractor vaccine requirement, stating that the federal government “will take no action to implement or enforce” the mandate “absent further written notice.”

Though the Eleventh Circuit limited the nationwide injunction issued by the lower court to only the plaintiffs in the case, other injunctions in ongoing cases as of September 15 have blocked enforcement of the mandate in the following fifteen states: Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming, Florida, Kentucky, Ohio, Tennessee, and Arizona.

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In the states

Indiana General Assembly task force considers proposals aimed at increasing legislative oversight of agency rulemaking 

What’s the story? 

An interim committee of the Indiana General Assembly on August 24, 2022, discussed recommendations aimed at increasing legislative oversight of state agency rulemaking.

Indiana lawmakers in 2022 created the 10-member Administrative Rules Review Task Force in part as a response to lawmakers’ unsuccessful effort to pass House Bill 1100, which aimed to require the Indiana Attorney General to approve emergency regulations issued by state agencies and limit their effective period to 180 days. The bill also proposed requiring agencies to repeal one rule before issuing another, among other rulemaking provisions. Though the bill passed the state House, it did not come up for consideration in the state Senate.

Members of the bipartisan task force discussed whether state lawmakers should receive notice of adopted agency rules; whether state agencies should be able to adjust fees and fines through emergency rules; and whether agencies should make the text of rules available prior to public hearings, according to Inside Indiana Business.

The committee has scheduled meetings through October 2022 and is set to expire on December 31.

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Idaho centralizes state administrative adjudicators

What’s the story? 

Idaho Governor Brad Little (R) on September 6, 2022, appointed attorney Bryan Nickels to serve as the first chief administrative hearing officer for the state’s new Office of Administrative Hearings (OAH).

Idaho lawmakers in 2022 passed House Bill 629, which amended the state’s Administrative Procedure Act to create the OAH. The new office aims to “assure fair hearings without actual or perceived bias on the part [sic] administrative hearing officers,” according to a press release from Governor Little. The OAH will hear all contested agency cases as well as any other adjudicatory hearings or processes requested by state agencies.

Idaho joins twenty-eight other states with a centralized panel of administrative adjudicators. Though the Idaho OAH comprises a panel of what the state APA refers to as administrative hearing officers, most state panels are made up of adjudicators known as state administrative law judges. The remaining states—and the federal government—have various types of administrative adjudicators that are appointed by agency heads or hired as agency employees to conduct administrative proceedings at specific agencies.

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A closer look at incorporation by reference

New scholarship from law professor Emily J. Bremer featured in The Regulatory Review sheds light on an agency practice known as incorporation by reference. Through incorporation by reference, agencies aim to save textual space in regulatory and legal documents by declaring that the entire text of a referenced document is included in another document without reprinting the text of the cited document. Bremer notes certain challenges to this practice, including agency use of incorporation by reference in non-transparent ways to adopt standards developed by regulated industry:

“Through the practice of incorporation by reference, government agencies enact into law the standards developed by private organizations—often without giving the public free, easy access to what those private standards say. It is a modest caricature to say that incorporation by reference allows government officials to shortcut their work by imposing on individuals and businesses the relatively secret dictates of private actors. … 

“The difficulty is that, when an agency incorporates a private, voluntary standard into a regulation, regulated parties and the public must usually pay the private standard-setting organization to see the full text of the agency’s proposed or final regulation. This requirement is because most standard-setting organizations assert copyright over their standards and rely on the revenue from the sale of the standards to fund their standard-setting processes. The resulting financial and practical barriers to public access to incorporated standards are contrary to modern administrative law norms, which have been shaped by the internet and the free, ready availability it provides to statutes, regulations, and agency documents.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 46 significant regulatory actions. 
  • Two rules approved without changes; recommended changes to 38 proposed rules; six rules withdrawn from the review process.
  • As of September 1, 2022, OIRA’s website listed 111 regulatory actions under review.
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