Checks and Balances, April 2025

By

Ballotpedia staff

Highlights from this edition of Checks and Balances include deep dives into a SCOTUS case focusing on nondelegation and Kentucky veto overrides for REINS and judicial deference bills.

In Washington

SCOTUS hears nondelegation challenge

What’s the story?

The U.S. Supreme Court (SCOTUS) on March 26 heard oral arguments in Federal Communications Commission (FCC) v. Consumers’ Research, a case centering on the nondelegation doctrine. The doctrine is a principle of constitutional and administrative law that limits lawmakers’ ability to delegate their legislative powers to executive agencies.  

The case concerns the Universal Service Fund (USF), which subsidizes telecommunications services in underserved communities. The fund makes money through a consumer telephone bill surcharge that has grown from 3% to 36.6%. The Consumers’ Research case asks SCOTUS to decide whether Congress gave the FCC too much authority to define the program’s scope and set the surcharge. 

Justices appeared divided in their questioning over whether Congress provided sufficient guidance to the FCC in setting the surcharge. Conservative Justice Clarence Thomas argued the high amount demonstrated insufficient congressional constraint. Liberal Justice Sonia Sotomayor argued Congress provided clear cost-setting guidance to the FCC.   

Justices on both sides asked questions about the practical consequences of a ruling against the program. Justice Samuel Alito expressed concerns that Congress would be unable to pass legislation to replace existing USF regulations. He said, “It’s never easy to get legislation enacted by Congress, and it is even more difficult right now than it has been at times in the past.” Justice Ketanji Brown Jackson argued many agencies raise revenue in similar ways. She asked if a court ruling against the FCC would invalidate the approaches of other agencies.

Why does it matter?

SCOTUS hasn’t struck down a law under the nondelegation doctrine since its 1935 rulings in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan. In both cases, the justices decided the National Industry Recovery Act, a New Deal program, unlawfully delegated legislative authority to the executive branch. Their decision was unanimous in Schechter and 8-1 in Panama.  

The court’s FCC decision could reaffirm or revise the current standard for permissible delegations of legislative authority.

What’s the background?

The plaintiffs challenged the FCC rules in multiple jurisdictions. While the Sixth and Eleventh Circuit Courts rejected the nondelegation challenge, the Fifth Circuit upheld it. The Supreme Court granted certiorari to resolve the split decisions. 

A decision is expected by June. 

Want to go deeper?

In the states

Kentucky legislature overrides vetoes of REINS-style, judicial deference bills

What’s the story?

The Kentucky House and Senate voted March 27 to override Gov. Andy Beshear’s (D) vetoes on two bills limiting the administrative state. One bill enacted REINS-style legislative oversight, and the other eliminated judicial deference to agency legal interpretations.

REINS-style bill

The legislature overrode Beshear’s HB 6 veto 80-20 in the House and 31-7 in the Senate. The REINS-style state law prohibits executive branch agencies from making rules that would cost the state more than $500,000 over two years unless explicitly required by law, a court order, or a threat to public health, safety, or welfare.   

Beshear argued in his March 24 veto message that HB 6 damaged the separation of executive and legislative powers. He said, “House Bill 6 is a direct and transparent attack on that separation of powers.” 

Primary sponsor Rep. D. Wade Williams (R) argued the bill put “common sense boundaries on the regulatory powers of unelected government employees.”

An emergency clause allowed HB 6 to take effect immediately upon passage. Beshear filed suit on March 28 to block it. 

Judicial deference bill

The legislature overrode Beshear’s SB 84 veto 74-18 in the House and 32-6 in the Senate. The bill prohibits state courts from deferring to state regulatory agencies’ interpretation of laws, mirroring federal policy following the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo. 

Beshear argued in his March 24 veto message that SB 84 is unconstitutional because it tells “the judiciary what standard of review it must apply to legal cases.” 

In their response, Senate Republicans argued, “SB 84 aligns Kentucky with a national legal shift that reaffirms the judiciary’s role in interpreting statutes. The bill does not weaken governance–it strengthens separation of powers by removing undue deference to regulatory agencies.” 

What’s the background?

The Kentucky Legislature has overridden over 100 of Gov. Beshear’s vetoes since the 2020 legislative session.

Kentucky is not the only state this year passing laws to boost legislative oversight of regulations. Utah Gov. Spencer Cox (R) signed a bill March 27 prohibiting agencies from making economically significant rules except to carry out a specific statute or federal directive. The Wyoming Legislature overrode Gov. Mark Gordon’s (R) veto of a bill earlier this year allowing legislators to introduce bills to eliminate regulations they disapprove and requiring agencies to provide economic impact statements for every major rule.

Ballotpedia tracks legislation on the administrative state, including legislation concerning the power balance between each branch of government and executive agencies. Click here to explore our tracker.

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Featured commentary

Trump’s latest order expands deregulatory effort

Sharon Block, a Harvard Law School professor, analyzes President Trump’s (R) 2025 “Unleashing Prosperity Through Deregulation” executive order in The Regulatory Review. Block argues the order could exceed executive authority and undermine regulatory safeguards:

Taken together, these executive orders and changes to the regulatory review process do not describe a policy realignment—they describe an end run around the law and Congress that is likely to make the American people less safe, less prosperous, and less free from the whims of billionaires and this Administration.

Want to go deeper? 

  • Click here to read the full text of “Trump Deregulatory Review Redux Plus” by Sharon Block.

Regulatory tally

Congressional Review Act

  • The Congressional Review Act (CRA) allows Congress to repeal rules with joint resolutions of disapproval. The 119th Congress has 60 working legislative days from the 15th day of the session to disapprove regulations the Biden administration issued after Aug. 16, 2024.
    • So far in 2025, at least 70 CRA resolutions have been introduced to repeal Biden-era regulations. Twelve resolutions crossed over, three passed both chambers, three were signed into law, and one was pending presidential approval as of April 14.

Notable regulation

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Pick of the news

Federal

  • Supreme Court hears arguments in EPA v. Calumet Shreveport Refining: SCOTUS heard arguments March 25 on whether the EPA exceeded its authority in enforcing pollution control requirements on a Louisiana refinery. Click here to learn about the case. 
  • Supreme Court hears arguments in Oklahoma v. EPA: SCOTUS heard arguments March 25 on whether the EPA overstepped its authority in enforcing federal air quality regulations on Oklahoma power plants. Click here to read more about the case. 
  • Lawsuits filed against Trump’s executive orders related to the administrative state: The lawsuits argue several of Trump’s orders exceed executive authority or violate constitutional rights, leading to district court rulings. Click here to read the article. Challenged orders include the following:
    • Birthright Citizenship – Lawsuits argue Trump’s order ending birthright citizenship violates the Fourteenth Amendment; federal judges have temporarily blocked it.
    • Schedule F Reinstatement – Labor unions claim the order undermines job protections for federal employees and violates the Administrative Procedure Act and the Fifth Amendment; litigation is ongoing.
    • DEI Program Bans – Diversity officers and others argue that ending DEI programs infringes on free speech and threatens congressionally appropriated funds; a judge temporarily blocked parts of the order.
  • Appeals court pauses DOGE records release: A federal appeals court temporarily blocked a U.S. district judge’s order requiring Elon Musk and the Department of Government Efficiency (DOGE) to turn over records in a lawsuit challenging DOGE’s constitutionality. The March 23 decision said the lower court needed to first rule on a motion to dismiss. Click here or here to find out more.
  • Trump issues more executive orders related to the administrative state: President Trump has issued more executive orders since our last edition changing the administrative state:
  • EO 14238 continues reducing the federal workforce.
  • EO 14242 directs the Education Secretary to “the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities.”
  • EO 14243 facilitates federal agency sharing of information to detect overpayments and fraud.
  • EO 14251 excludes certain federal agencies from union-related labor-management programs.
  • EO 14267 directs agencies to repeal or modify regulations that, in the administration’s view, create anti-competitive barriers.
  • EO 14270 requires energy and environmental agencies to add sunset provisions to regulations, causing them to expire unless reviewed and extended.
  • Click here to see all of Trump’s administrative state executive orders.  
  • Appeals court rules DOGE can access agency data: An appeals court ruled in favor of the Trump administration on March 7, allowing DOGE to access individuals’ data at the Education Department, Treasury Department, and Office of Personnel Management, despite allegations of privacy violations. Click here to read about the case.
  • HHS rule could cost over $1 billion: A proposed Department of Health and Human Services rule is projected to cost $276 million annually and $1.1 billion in net costs over five years. The rule would alter various standards used to implement federal healthcare exchanges. Click here to read the article.
  • HHS lays off 10,000 workers: The Department of Health and Human Services announced that 10,000 workers would lose their jobs. Another 10,000 recently left through early retirement or deferred resignation programs. Click here to learn more.
  • DOGE Act introduced: Republican members of Congress introduced the DOGE Act on March 10 to codify a Trump-era executive order renaming the U.S. Digital Service as the Department of Government Efficiency (DOGE) and expanding its mandate to reduce government waste and modernize federal operations. Click here to read more about this legislation. 

State

  • Texas DOGE bill passes Senate, heads to House: The Texas Senate approved a bill on March 23 to establish a Texas Regulatory Efficiency Office within the governor’s office, modeled after the federal Department of Government Efficiency. Click here to find out more.  

Commentary

  • Rutgers law professor argues FCC v. Consumers’ Research raises Article III problem: Adam Crews, a Rutgers University law professor, argued March 24 that the Supreme Court should avoid using nondelegation as a basis for claims since there are procedural avenues for plaintiffs to seek relief in FCC v. Consumers’ Research. Click here to read his article.