Checks and Balances, October 2022: Biden administration codifies DACA

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 recent activity, including oral argument in a case challenging the scope of the Environmental Protection Agency’s authority under the Clean Water Act; a decision from the United States Court of Appeals for the Fifth Circuit that responds to the codification of the Deferred Action for Childhood Arrivals (DACA) program; a new challenge to the structure and authority of the Federal Trade Commission; and a record number of public comments received in response to the U.S. Department of Education’s proposed Title IX rule. 

At the state level, we take a look at inaction by Utah state lawmakers allowing for an administrative rulemaking to permit the sale of mini-bottles of alcohol in the state; and a preemption conflict between the state of Pennsylvania and the Philadelphia mayor regarding firearm restrictions.

We also highlight an examination of potential congressional responses to the major questions doctrine from administrative law scholar Christopher J. Walker. As always, we wrap up with our Regulatory Tally, which features information about the 149 proposed rules and 290 final rules added to the Federal Register in September and OIRA’s regulatory review activity.

In Washington

SCOTUS hears oral argument in Clean Water Act challenge, declines to take up bump stock case

What’s the story?

The U.S. Supreme Court on October 3, 2022, kicked off the October 2022-2023 term with oral argument in Sackett v. Environmental Protection Agency (EPA), a case concerning 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). While much of the justice’s questioning centered on the agency’s interpretation of the rule’s scope, Justice Brett Kavanaugh “suggested that Congress, rather than the Supreme Court, should determine how to draw the line between what is and is not covered by the CWA,” according to SCOTUSblog’s Amy Howe.

The court without comment on October 3 declined to hear Aposhian v. Garland and Gun Owners of America v. Garland—two cases challenging the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) ban on bump stock devices. The agency in 2019 changed its prior interpretation of the Gun Control Act and the National Firearms Act to find that bump stocks qualify as machine guns and can therefore be prohibited. The court’s decision leaves in place a district court ruling that applied Chevron deference to yield to the agency’s changed interpretation of the law and uphold the bump stock ban.

The court also granted certiorari in the following cases concerning administrative exhaustion requirements and the scope of agency authority:

  • Perez v. Sturgis Public Schools questions the need to satisfy certain administrative exhaustion requirements related to the Individuals with Disabilities Education Act’s (IDEA) administrative proceedings. 
  • Santos-Zacaria v. Garland questions whether federal courts can hear a challenge to a determination from the Board of Immigration Appeals before the plaintiff exhausts the board’s administrative proceedings through a motion to reconsider. 
  • The Ohio Adjutant General’s Department v. Federal Labor Relations Authority questions whether the Federal Labor Relations Authority has regulatory authority over state militias.

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Federal courts grapple with DACA, separation of powers challenges

What’s the story? 

A three-judge panel of the United States Court of Appeals for the Fifth Circuit on October 5, 2022, upheld a district court decision that found the 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, to be unlawful. The judges remanded the case to the district court for further review in light of the Biden administration’s recent effort to codify DACA through the rulemaking process.

A coalition of states in 2018 filed suit in Texas v. United States, arguing in part that the Obama administration unlawfully created DACA 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 ruled in favor of the states and instituted a pause on new DACA applicants.

Fifth Circuit Judges Priscilla Richman, James C. Ho, and Kurt Engelhardtl upheld the district court ruling but directed the court to reevaluate its holding in light of the Biden administration’s recent effort to codify DACA through the administrative rulemaking process, arguing that the “district court is in the best position to review the administrative record in the rulemaking proceeding.” The final rule, effective October 31, aims to “preserve and fortify” the program, according to U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas.

In another case to watch, Walmart on August 29, 2022, filed a motion to dismiss a suit brought against the company by the Federal Trade Commission (FTC), arguing that the FTC “lacks constitutionally valid authority to initiate litigation seeking monetary or injunctive relief,” according to the filing. Since the FTC is structured as an independent agency headed by a multi-member commission with protections against removal by the president, Walmart contends that the commission lacks the executive authority to sue private parties in federal court.

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Title IX proposal garners record number of public comments

What’s the story? 

The comment period for the U.S. Department of Education’s (ED) proposed rule seeking to modify Title IX discrimination protections closed on September 12, 2022, after receiving a record number of public comments for the department, according to multiple media reports.

The proposed rule aims to roll back the Trump administration’s Title IX rule, which narrowed the Obama administration’s definition of sexual misconduct at institutions of higher education and sought to support due process for accused individuals by requiring live hearings. The Biden administration’s proposal also broadens the definition of the word sex in the context of discrimination to include not only biological sex but also sexual orientation and gender identity, among other provisions.

Politico reported that the rule had received 146,000 comments as of September 6. That number rose to nearly 350,000 comments by September 7, but the Office of the Federal Register adjusted the total down to roughly 184,000 comments due to what the office described as a clerical error. By the end of the comment period on September 12, the rule had received more than 240,000 public comments.

Nineteen Democratic U.S. senators on September 12 sent a letter to ED Secretary Miguel Cardona in support of the rule, arguing that “the Department’s proposed rule clarifies the scope and application of Title IX’s prohibitions on all forms of discrimination, including discrimination based on sex, sex stereotypes, sex characteristics, and sexual orientation—explicitly extending these protections to trans students.”

Former ED Secretary Betsy Devos argued on Twitter that the proposed rule constitutes a return to challenges that the Trump-era rule sought to address. She also told Fox News that changing the Title IX definition of sex through the rulemaking process “is a bridge too far.” A coalition of 27 parent-led education groups in April sent a letter to Secretary Cardona arguing in part that the proposal “would discard the concept of male and female enshrined in Title IX itself” and “would rob girls and women of equal athletic opportunities.”

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In the states

Utah state agency to allow sale of mini-bottles of alcohol after non-action by state lawmakers

What’s the story? 

After the Utah State Legislature earlier this year declined to weigh in on the sale of mini-bottles of alcohol in the state, the Utah Department of Alcoholic Beverage Services (DABS) voted on July 26, 2022, to advance a proposed rule allowing for the sale of mini-bottles of alcohol in state-run liquor stores. A public comment period on the proposal runs through October 17, 2022.  

The sale of mini-bottles of alcohol has been prohibited in Utah since the 1980s. The proposed rule would allow for the sale of 50 ml bottles of liquor and 187 ml bottles of wine in state-run liquor stores. DABS Executive Director Tiffany Clason told Fox 13 Salt Lake City that the decision to resume the sale of mini-bottles is aimed at accommodating the growing tourism industry in the state, arguing that DABS “has heard a lot of support from private business owners, also in high tourist areas of visitorship, rural areas of Utah where, when people are visiting, they would prefer to have smaller format sizes.” 

Abuse prevention advocates, including DABS Advisory Board member Robert Timerman, have expressed concern about the proposal. Timmerman argued during the July 26 DABS meeting that mini-bottles could allow for the concealment of alcohol and are “a concern on underage drinking as well.”

The Utah State Legislature passed an omnibus liquor bill in 2022 that did not address the sale of mini-bottles of alcohol. Fox 13 reported that the legislature “signaled it would stay out of the matter and allow the DABS to decide whether or not to allow the sale.” If finalized by DABS, the mini-bottles rule could take effect by the end of the year.

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Philadelphia mayor seeks to limit firearms through executive action

What’s the story? 

Philadelphia Mayor Jim Kenney signed an executive order on September 27, 2022, that aims to ban firearms from indoor and outdoor recreation areas in the city. Judge Joshua H. Roberts of the Philadelphia Common Pleas Court blocked the executive order on October 3, 2022, arguing that it violates state law.  

Pennsylvania law states that local governments cannot enact firearm regulations that are stricter than the state’s regulations. More than 40 states have similar preemption laws. The Philadelphia City Council has previously attempted to prohibit firearms through legislation, but its efforts have been struck down in court based on the state’s preemption statute. 

Mayor Kenney’s executive order seeks to limit firearms in the city through executive, rather than legislative, action. City officials have argued that the order aims to allow the city to manage its facilities as a property owner and, therefore, should not be barred by the law. Andrew Richman, a city attorney, told The Associated Press, “As the property owner of the city’s recreational centers, we believe that the city has the authority to limit guns on our own property.”

The ​​501(c)(4) advocacy group Gun Owners of America (GOA) on September 27 filed suit to challenge the executive order. Judge Roberts later blocked the order on the grounds that it violated state law. GOA attorney Andrew B. Austin told The Philadelphia Inquirer that “the law is so explicit: The City is not allowed to regulate possession of firearms in any manner.”

City officials were reviewing Judge Roberts’ ruling as of October 13, 2022.

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How Congress could respond to the major questions doctrine

In a forthcoming essay in the Harvard Journal of Law and Public Policy titled “A Congressional Review Act for the Major Questions Doctrine,” administrative law scholar Christopher J. Walker examines potential congressional responses to the major questions doctrine with an emphasis on its deregulatory implications. Walker proposes a mechanism in the spirit of the Congressional Review Act that would expedite congressional review of agency rules invalidated by federal courts under the major questions doctrine:

“Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate a question of great economic, policy, or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond, by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could enact a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such joint resolution would amend the agency’s governing statute to expressly authorize the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself—tempering the new doctrine’s asymmetric deregulatory effect and helping to restore Congress’s primary legislative role in the modern administrative state.”

Want to go deeper

  • Click here to read the full text of “A Congressional Review Act for the Major Questions Doctrine” by Christopher J. Walker. 


Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 45 significant regulatory actions. 
  • Nine rules approved without changes; recommended changes to 32 proposed rules; three rules withdrawn from the review process; one rule subject to a statutory or judicial deadline. 
  • As of October 3, 2022, OIRA’s website listed 119 regulatory actions under review.
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