Checks and Balances, December 2024

By

Joseph Greaney

In this edition of Checks and Balances:

Federal stories:

  • President-elect Trump announces Department of Government Efficiency creation. 
  • D.C. Circuit panel rules against Council on Environmental Quality’s rulemaking authority.
  • Republican lawmakers introduce bill to abolish the Department of Education.
  • Biden issued 21 orders reversing Trump in 100 days; Trump says some will return.

State stories:

  • Pennsylvania, Virginia governors issue executive orders changing state permitting processes.
  • Kansas fire marshal reports REINS-related challenges to updating state code.

Commentary:

  • Americans for Prosperity sent a letter on Dec. 3 to congressional leaders in the 118th and 119th Congress encouraging lawmakers to enact reforms following the Supreme Court decision to overturn Chevron deference.

Regulatory Tally:

  • 128 proposed rules and 215 final rules added to the Federal Register in November.
  • OIRA’s regulatory review activity.
  • Highlighted rule requiring annual charge on methane emissions exceeding waste emissions thresholds specified by Congress.

In Washington

President-elect Trump announces Department of Government Efficiency creation

What’s the story?

President-elect Donald Trump (R) on Nov. 12 announced the creation of the Department of Government Efficiency (DOGE) to advise the Office of Management and Budget (OMB) on cutting costs, reducing regulations, and restructuring agencies. Trump appointed businessman Elon Musk and former Republican presidential candidate Vivek Ramaswamy to lead the organization. 

DOGE is not a government agency. Instead, it will “provide advice and guidance from outside the Government,” according to Trump’s statement. Trump also said Musk and Ramaswamy will advise his administration on ways to “slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.”

Since the announcement, Musk and Ramaswamy have released plans to boost efficiency,  including proposals to eliminate certain agencies. Musk on Nov. 27 posted on the social media platform X about eliminating the Consumer Financial Protection Bureau (CFPB), arguing, “There are too many duplicative regulatory agencies.” 

The U.S. House Budget Committee, led by Rep. Jodey Arrington (R-Texas), wrote in a statement supporting the announcement, “The DOGE is a tremendous step in leadership from President Trump toward fiscal responsibility to combat the nearly $36 trillion in unsustainable debt.”

Lisa Gilbert, co-president of the advocacy group Public Citizen, argued in a statement opposing DOGE’s task of reducing federal regulations, “The purpose of government regulations is to protect the American people. … ‘Cutting red tape’ is shorthand for getting rid of the safeguards that protect us in order to benefit corporate interests.”

The background

Musk and Ramaswamy argued in a Wall Street Journal opinion piece that DOGE’s authority stems from two Supreme Court rulings: 

Musk and Ramaswamy argued, “Together, these cases suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law.” They said they will “present this list of regulations to President Trump, who can, by executive action, immediately pause enforcement of those regulations and initiate the process for review and rescission.”  

Law professor Gillian Metzger argued DOGE’s interpretation of Loper Bright could constrain the organization’s efforts, stating, “Chevron deference gave an agency room to change its interpretation of a statute, provided the statute was ambiguous, and the agency reasonably offered a permissible interpretation. … Without that precedent, it’s going to be harder for them to change interpretations of statutes in ways that justify repealing regulations.” 

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D.C. Circuit panel rules against Council on Environmental Quality’s rulemaking authority 

What’s the story?

A divided three-judge panel of the United States Court of Appeals for the D.C. Circuit ruled on Nov. 12 the Council on Environmental Quality (CEQ) does not have binding regulatory authority under the National Environmental Policy Act of 1969 (NEPA). 

The court argued in its Marin Audobon Society v. Federal Aviation Administration ruling that the CEQ’s rulemaking authority was granted by an executive order, not NEPA. The decision said, “No statute confers rulemaking authority on CEQ. President Carter’s Executive Order cited section 309 of the Clean Air Act. … That provision is consistent with CEQ’s advisory role; it says nothing about CEQ’s rulemaking authority.” The court also said, “The Supreme Court, in one of its most significant separation of powers decisions [Youngstown Sheet and Tube Co. v. Sawyer (1952)], ruled that the Constitution does not permit the President to seize for himself the ‘law-making power of Congress’ by issuing an order that, ‘like a statute, authorizes a government official to promulgate … rules and regulations.’”

Chief Judge Srikanth Srinivasan dissented in part, arguing that neither side in the case challenged the CEQ’s authority. He said, “[N]o party challenges the CEQ’s regulations. In nonetheless reaching out to address the issue, the court contravenes ‘our established ‘principle of party presentation.’’”

Eliza Martin and Hannah Perls, staff members of the Harvard Law School Environmental and Energy Law Program, published a paper arguing federal courts—including the D.C. Circuit and the Supreme Court—have historically granted deference to the CEQ’s regulatory authority under NEPA.

The background

NEPA created the CEQ as a division of the Executive Office of the President to focus on public health and environmental issues. The council is led by a three-person commission appointed by the president and confirmed by the Senate. 

President Jimmy Carter (D) issued an executive order in 1977 granting rulemaking authority to the CEQ. The order authorized the council to “[i]ssue regulations to Federal agencies for the implementation of the procedural provisions of the Act.” The order also directed federal agencies to “comply with the regulations issued by the Council except where such compliance would be inconsistent with statutory requirements.” 

The question originally presented in the Marin Audobon Society case centered on whether the Federal Aviation Administration (FAA) complied with regulations promulgated by the CEQ under NEPA. The plaintiffs did not initially challenge the constitutionality of the CEQ’s authority over the regulations.

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Republican lawmakers introduce bill to abolish the Department of Education

What’s the story?

U.S. Sen. Mike Rounds (R) on Nov. 21 introduced the Returning Education to Our States Act, which proposed abolishing the Department of Education and redistributing certain funds and duties to other federal agencies. The proposed transfers include:

  • the administration of federal student loans to the U.S. Department of the Treasury;
  • the administration of the Individuals with Disabilities Education Act, which enforces protections for those with special needs, to the U.S. Department of Health and Human Services; and
  • the administration of the Fulbright-Hays Program to the U.S. Department of State.

Rounds argued the Department of Education does not improve education and “has grown into an oversized bureaucracy with a budget that’s 449% larger than it was at its founding,” according to a press release.

California State Superintendent of Public Instruction Tony Thurmond (D) argued against abolishing the Department of Education, saying it would incur “devastating consequences for public education, especially for students with disabilities and families in low-income communities.”

What’s the background?

The Returning Education to Our States Act was introduced after President-elect Donald Trump (R) included abolishing the Department of Education in his campaign’s platform. Rounds said he had been working for years to eliminate the department, and he’s “excited to work with [Trump] and Republican majorities in the Senate and House to make this a reality.”

The bill would need a 60-vote supermajority in the Senate to pass over the filibuster. However, Rounds argued the bill could bypass that requirement through a process called budget reconciliation. The process allows federal spending and tax bills to pass on a simple majority vote. 

Rounds argued, “If you can show a savings of some of the administrative overhead costs, you can redirect where some of these items are going to be. … While you may not end up with everything actually abolished, you can significantly reduce its impact by redistributing these to other areas where they don’t have the rule-making on a one-size-fits-all basis.”

To begin the process of budget reconciliation, the Senate must pass a concurrent budget resolution that includes direct instructions to specific committees to make changes to laws within their jurisdiction to achieve a particular budget outcome. 

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Biden issued 21 orders reversing Trump in 100 days; Trump says some will return

What’s the story?

President-elect Donald Trump (R) is set to be sworn in for his second term on Jan. 20, 2025. After succeeding Trump in 2021, President Joe Biden (D) signed 42 executive orders in his first 100 days in office, including 21 revoking Trump administration actions.

Ballotpedia tracked five Biden executive orders from the first five months of his presidency that directly revoked 14 Trump executive orders related to the administrative state. Trump’s 2024 campaign agenda said a day-one priority would be to reissue a revoked 2020 executive order designed to allow the president to remove federal civil service employees. Below is a closer look at that revoked executive order and several others related to hiring and removing federal employees, regulatory reduction, and reducing agency costs.

Biden’s executive orders 13992 and 14003 revoked the following eight Trump executive orders, among others: 

  • Executive Order 13957: Reclassified competitive service employees serving in policy-related roles—who are subject to workplace removal protections—as excepted service (or unclassified) positions, making it easier to remove those employees at will.
  • Executive Order 13771: Established regulatory budgets for federal agencies and required agencies to eliminate two old regulations for each new regulation issued.
  • Executive Order 13777: Established new regulatory reform officers and regulatory reform task forces to oversee the implementation of E.O. 13771.
  • Executive Order 13875: Directed agencies to eliminate non-statutory advisory committees whose missions have been accomplished, whose subject matter has become obsolete, whose primary functions have been assumed by another entity, or whose costs outweigh benefits in an agency’s view.
  • Executive Order 13891: Prohibited federal administrative agencies from issuing binding rules through guidance documents.
  • Executive Order 13892: Required federal administrative agencies to provide public notice of administrative enforcement actions, adjudication, and determinations “in a manner that would not cause unfair surprise.” 
  • Executive Order 13893: Required agencies to consider cost reduction efforts in administrative actions.
  • Executive Order 13839: Expedited the discipline and dismissal processes for federal employees deemed to be poor-performing.

Biden’s Executive Order 13992 also abolished “any personnel positions, committees, task forces, or other entities” established under the revoked executive orders. These included the regulatory reform officer positions and task forces established under Trump’s Executive Order 13777.

In addition to executive orders, Biden signed into law three resolutions of disapproval under the Congressional Review Act (CRA) repealing rules promulgated under the Trump administration. The CRA and executive orders are two mechanisms presidents and elected officials can use to repeal rules and shift regulatory priorities.

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In the states

Pennsylvania governor issues executive orders changing state permitting processes 

What’s the story? 

Pennsylvania Gov. Josh Shapiro (D) on Nov. 19 signed an executive order establishing the Pennsylvania Permit Fast Track Program. 

According to the order, the program aims to “enhance public awareness, collaboration, accountability, coordination, transparency, and predictability in the Commonwealth’s permitting, licensing, and authorization processes for critical infrastructure projects and projects delivering significant economic development to Pennsylvanians.”

Gov. Shapiro said, “The PA Permit Fast Track Program is a game-changer that enhances coordination and communication between the project sponsor and state agencies to cut through red tape, streamline critical projects, and give businesses the confidence to invest and create jobs here in Pennsylvania.”

The Commonwealth Foundation, a Pennsylvania-based think tank, supported the executive order but argued “more must be done to ease the regulatory burden on Pennsylvanians.” The group’s statement highlighted five Republican-led bills introduced in 2023 to reform the state’s permitting process, arguing, “Shapiro should work with both chambers to enact those broad-based and meaningful reforms.” 

State Senate Majority Leader Joe Pittman (R) said, “While it is unclear how Governor Shapiro’s most recent Executive Order is different from previous legislation spearheaded by Senate Republicans, we welcome the governor and his Democratic colleagues to the table to work together on further initiatives.”

The background

In October, Virginia Gov. Glenn Youngkin (R) also issued an executive order to streamline and promote transparency in his state’s permitting process. Gov. Youngkin’s order aimed “to reduce wait times, reduce costs and improve the permit, license, certification, and registration, application processes for Virginians.”

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Kansas fire marshal reports REINS-related challenges to updating state code 

What’s the story? 

Kansas Fire Marshal Mark Engholm on Nov. 25 reported to the Legislative Budget Committee about challenges with updating the state’s fire code. Engholm argued the state’s REINS-style law created challenges that hindered the effort. 

Engholm said it was difficult to estimate the economic impacts of fire codes—a requirement for every new rule under the REINS law. He stated, “It’s very difficult for us to say how a fire code would economically impact [entities] across the state.” Kansas currently uses the 2006 version of the International Fire Code, making it the oldest code used by any state.

State Reps. Chris Croft (R), Dan Hawkins (R), and Blake Carpenter (R) supported passing the state’s REINS-style law, arguing, “Many of [Kansas’] rules and regulations, that are put in place by unelected agency bureaucrats, end up costing taxpayers big money. By overriding the governor’s misguided veto today, we’re putting an extra set of guardrails on the big government spending of the rules and regulations process and standing up for Kansas taxpayers.”

The background

The Kansas REINS-style law, which went into effect July 1, requires agencies to produce economic impact statements for proposed regulations indicating whether it would result in $1 million or more in costs. The law prohibits the adoption of such rules unless ratified by the legislature.

The bill passed both the House and Senate along party lines but was vetoed by Gov. Laura Kelly (D) on April 25. The state legislature on April 29 voted to override the veto 87-38 in the House and 27-12 in the Senate.

The law was modeled on a proposed federal law with the same name.

Kansas is one of four states to enact a REINS-style state law as of December 2024:

  • Indiana Gov. Eric Holcomb (R) signed a REINS-style bill into law in March 2024.
  • Former Wisconsin Gov. Scott Walker (R) signed a REINS-style bill into law in 2017.
  • The Florida State Legislature voted to override former Republican Gov. Charlie Crist’s veto of a REINS-style law in 2010.

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Americans for Prosperity recommends reforms to Congress

Americans for Prosperity (AFP)—a 501(c)(4) organization focused on “empower[ing] every American to pursue their version of the American dream”—and 18 partners sent a letter on Dec. 3 to congressional leaders in the 118th and 119th Congress. The letter encouraged lawmakers to enact the following reforms following the Supreme Court decision to overturn Chevron deference: 

Congress should reassert its Article I authority by delegating less authority to agencies in future legislation, making legislative text more explicit about what authority is (and is not) being delegated, and ensuring that its legislative intent is clear. Congress should pass laws that specify clear goals for agencies, clearly delineate agencies’ authority to achieve those goals—including where this authority ends—and detail the specific mechanisms the agency may use to achieve its congressionally defined mission.

Congress should leverage the Congressional Review Act (CRA) to roll back Biden-Harris regulations – especially through the expected midnight rules process during lame duck – to prohibit agencies from implementing similar regulations in the future. Congress should also act to streamline this important legislative mechanism by passing the Midnight Rules Relief Act of 2023 introduced by Rep. Andy Biggs and Sen. Ron Johnson. Currently Congress may disapprove of only a single regulation under a joint resolution, this bill would allow Congress to disapprove multiple regulations under a single joint resolution, preserving floor time while scaling direct congressional action to cut burdensome regulations.

Continue to support the committee work Majority Leader Steve Scalise initiated immediately following the June decision by supporting increased agency oversight and committee hearings (e.g., upcoming 12/18/24 HVAC hearing “Restoring Congressional Power over VA After Loper Bright Enterprises v. Raimondo.”). This oversight and the related hearings should focus on both egregious examples of agency overreach and also situations where the agency has failed to implement the stated will of Congress, as in the case of the Veterans Affairs hearing above.

The Senate should pass the REINS Act, which gives Congress the final say on whether agencies’ proposed rules faithfully implement the laws they have passed, thereby preventing unelected bureaucrats from negatively impacting the economy and society.

The Senate should pass the GOOD Act which requires agencies to publish regulatory guidance in a searchable, digital format so anyone can easily read the laws governing their lives and livelihoods. Increasing regulatory transparency and congressional oversight in this way prevents federal agencies from sidestepping the Administrative Procedure Act (APA) and refusing to convince U.S. courts of their interpretation of the laws they issue. 

Want to go deeper? 

  • Click here to read the full text of the letter from Americans for Prosperity to the 118th and 119th Congress.

Regulatory tally

Federal Register

The Federal Register publishes proposed and finalized administrative agency rules and regulations, policy statements, and interpretations of existing rules every federal working day. The Federal Register’s November highlights are as follows:

Office of Information and Regulatory Affairs (OIRA)

OIRA reviews all significant actions, defined as rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. Significant regulatory actions also include agency rules that may conflict with other regulations or with the priorities of the president. OIRA’s November regulatory review activity included the following:

  • The agency reviewed 45 significant regulatory actions:
    • two rules were approved without changes, 
    • changes were recommended for 36 rules, 
    • five rules were subject to a statutory or judicial deadline, and 
    • two rules were withdrawn from the review process.
  • As of Dec. 2, OIRA’s website listed 144 regulatory actions under review.
  • Notable regulation: 
    • OIRA concluded its review of an Environmental Protection Agency (EPA) final rule requiring the agency to collect an annual charge on methane emissions exceeding waste emissions thresholds specified by Congress. The rule implements portions of the Inflation Reduction Act of 2022. 
    • The final rule, titled Methane Emissions and Waste Reduction Incentive Program for Petroleum and Natural Gas Systems, will take effect on Jan. 17, 2025. 
    • The EPA estimated the rule would provide a net annual benefit of $190 million after costs by reducing methane emissions and pointed to climate and human health benefits as nonmonetary benefits. 
    • The total cost of the rule included engineering expenses for methane mitigation actions by the oil and natural gas industry to avoid charges and losses in consumer and producer surplus value due to changing energy production costs. 
    • U.S. Rep. Glenn Grothman (R) on Nov. 19 introduced a joint resolution of disapproval under the Congressional Review Act in the House of Representatives to overturn the rule.
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