U.S. Supreme Court fails to resuscitate nondelegation doctrine

By

Chris Nelson

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 edition, we review the United States Supreme Court (SCOTUS) decision declining to uphold the nondelegation doctrine, a SCOTUS decision requiring notice-and-comment rulemaking for changes to Medicare policy, an effort to standardize cost-benefit analysis procedures at the Environmental Protection Agency, and two recent SCOTUS cases demonstrating the reluctance to apply Chevron deference.

At the state level, we highlight an Idaho proposal to simplify or retire roughly one-third of the state’s regulatory code, a new Michigan law that seeks to protect citizens against civil asset forfeiture, a ruling from the Texas Supreme Court aimed at protecting citizens’ due process rights in spite of agency misinformation, and the Texas governor’s executive order to prevent the expiration of the state’s plumbing regulations. As always, we wrap up with our Regulatory Tally, which features information about the 220 proposed rules and 264 final rules added to the Federal Register in May and OIRA’s regulatory review activity.

The Checks and Balances Letter

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In Washington

U.S. Supreme Court fails to resuscitate nondelegation doctrine; Alito concurrence, however, suggests a change in precedent might be forthcoming

  • What’s the story? In Gundy v. United States, the U.S. Supreme Court ruled 5-3 that the Sex Offender Registration and Notification Act (SORNA) did not violate the nondelegation doctrine, the constitutional principle forbidding Congress from delegating its legislative powers to the executive.
  • Justice Elena Kagan’s plurality opinion noted that the court has only declared delegations of authority unconstitutional twice in its history and that past courts have upheld broader delegations with less guidance from Congress. Justice Alito, however–who voted to uphold SORNA–wrote a separate opinion stating his willingness to reconsider how the court approaches future nondelegation doctrine challenges, suggesting changes in precedent might still be coming. Justice Kavanaugh did not vote on the case, which was heard before he joined the court.
  • Justice Gorsuch filed a dissenting opinion arguing that SORNA is unconstitutional because it gives the U.S. attorney general the power to write and enforce his own criminal code. He argued, “The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”
  • Herman Gundy was convicted for failing to register as a sex offender under SORNA even though his offense occurred before SORNA passed. He argued that Congress improperly gave away legislative power to the attorney general when it allowed him to decide whether and how to apply SORNA to sex offenders who were convicted earlier.
  • The last time the U.S. Supreme Court found that Congress violated the nondelegation doctrine was in two 1935 cases involving the National Industrial Recovery Act passed during the New Deal.
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SCOTUS reins in HHS by requiring notice-and-comment rulemaking; declines to draw line between substantive and interpretive rules

  • What’s the story? The United States Supreme Court on June 3 declined to draw a defining line between substantive rules and interpretive rules in a 7-1 decision in Azar v. Allina Health Services. Instead, the court narrowly held that the Medicare Act requires the U.S. Department of Health and Human Services (HHS) to follow notice-and-comment rulemaking procedures when it makes substantive changes to Medicare policy, including substantive changes issued through interpretive rules.
  • Justice Brett Kavanaugh was recused from the case because he authored the appellate court opinion while serving on the United States Court of Appeals for the District of Columbia Circuit. Justice Stephen Breyer dissented.
  • A group of hospitals that provide healthcare to low-income Medicare patients and challenged HHS’ method of calculating the disproportionate share hospital adjustments for the 2012 fiscal year. These adjustments serve to increase reimbursement payments to hospitals that treat a disproportionately high number of low-income patients. The hospitals argued that the Medicare Act required HHS to provide “the public with notice and opportunity for comment” before changing the formula.
  • The district court ruled that HHS was not required to follow notice-and-comment rulemaking procedures because the formula change to calculate the 2012 adjustments was instituted through an interpretive rule, a type of agency guidance document. Unlike substantive rules, interpretive rules lack the force and effect of law. The district court held that the Medicare Act incorporated the Administrative Procedure Act’s (APA) exemption of interpretive rules from notice-and-comment rulemaking.
  • The United States Court of Appeals for the District of Columbia Circuit reversed the district court in finding that the Medicare Act does not except interpretive rules from notice-and-comment requirements.
  • In an opinion by Justice Neil Gorsuch, the United States Supreme Court affirmed the D.C. Circuit ruling, arguing that the Medicare statutes of 1987 require notice-and-comment rulemaking for changes to substantive legal standards, including those issued via interpretive rules.
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Cost-benefit analysis overhaul at EPA in response to Trump executive order

  • What’s the story? Environmental Protection Agency (EPA) Administrator Andrew Wheeler issued a memo on May 13 directing agency leadership to develop new rules standardizing the agency’s application of cost-benefit analysis in the rulemaking process.
  • The EPA is instituting the new rules in response to President Trump’s Executive Order 13777, which directed agencies to identify regulations with costs that exceed benefits. The memo lists the following guidelines for the new cost-benefit analysis rules:
  • The EPA should evaluate and consider both costs and benefits in regulatory decision-making.
  • The EPA should have consistent interpretations of key terms and concepts, such as “practical,” “appropriate,” “reasonable,” and “feasible.”
  • The EPA should explain the factors considered in a regulatory analysis and their role in shaping the regulatory outcome.
  • Analyses should follow best practices as well as sound economic and scientific principles.
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Recent SCOTUS cases avoid Chevron doctrine

  • What’s the story? The U.S. Supreme Court has not overturned the Chevron doctrine, but two recent cases demonstrate the court’s reluctance to apply it.
  • The court on May 20 rejected a petition to hear United Parcel Service v. Postal Regulatory Commission, a case in which the United Parcel Service challenged the appellate court’s application of Chevron deference to the Postal Regulatory Commission’s (PRC) method of setting postal rates.
  • In the court’s May 28 decision in Smith v. Berryhill, the justices unanimously rejected the argument that Chevron deference should apply when Congress gave no clear instructions about the availability of judicial review for those seeking disability benefits before the Social Security Administration. Justice Sonia Sotomayor stated in the opinion that the scope of judicial review “is hardly the kind of question that the Court presumes that Congress implicitly delegated to an agency.”
  • The Chevron doctrine—named for the 1984 United States Supreme Court decision in Chevron v. Natural Resources Defence Council—compels courts to defer to agencies’ reasonable interpretations of the unclear laws that they administer.
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In the States

Idaho governor proposes dramatic reductions to state regulatory code

  • What’s the story? Idaho Governor Brad Little (R) on May 21 proposed simplifying or allowing for the expiration of 139 full chapters and 79 partial chapters—roughly 34%—of the state’s regulatory code.
  • Idaho’s entire regulatory code was effectively repealed as of July 1 after the state legislature failed to reauthorize the 8,200 pages of rules.
  • Regulations in Idaho must be reauthorized each year, but lawmakers failed to do so by the end of the legislative session.
  • Little directed agencies to submit their regulations to the Division of Financial Management by May 10 for temporary approval in order for the rules to remain in effect until the legislature reconvenes in January.
  • Little’s proposal was open for public comment through June 11. Approved rules were published in the June 19 edition of the Idaho Administrative Bulletin, followed by a 21-day comment period.
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New Michigan law protects against civil asset forfeiture

  • What’s the story? Michigan Governor Gretchen Whitmer (D) signed a law on May 9 that prevents law enforcement from permanently keeping property under $50,000 acquired through civil asset forfeiture until the owner is convicted in a court of law.
  • Under civil asset forfeiture, law enforcement routinely seize cars, cash and other property as alleged proceeds of crime.
  • The new law aims to protect individuals’ property and due process rights against civil asset forfeiture and expedite the process for individuals seeking to recover seized property.
  • The law is the latest in a series of civil asset forfeiture reforms approved by Michigan lawmakers in recent years. Legislation passed in 2015 raised the standard of evidence for civil asset forfeiture and established transparency requirements. A 2016 bill repealed the bond requirements for individuals challenging forfeitures.
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Texas Supreme Court upholds due process in the face of agency misinformation

  • What’s the story? The Texas Supreme Court unanimously ruled on May 21 in Mosley v. Texas Health and Human Services Commission and Texas Department of Family and Protective Services that state agencies can’t provide erroneous information to citizens and later deny them due process after they follow the government’s inaccurate instructions.
  • The case concerned a decision by the Texas Department of Aging and Disability Services to add Patricia Mosley, a home health care provider, to the department’s Employee Misconduct Registry. Mosley challenged the decision but lost in a hearing before a state administrative law judge (ALJ).
  • The department sent Mosely a letter after the hearing instructing her to file a petition for judicial review in district court within 30 days in order to appeal the decision. The letter, however, failed to instruct Mosley to first file a motion for rehearing before seeking judicial review as required by statute. As a result, Mosley’s petition for judicial review was dismissed by the district and appellate courts for failing to first file a motion for rehearing.
  • The Texas Supreme Court disagreed, arguing that “the government can’t hold [Mosley] responsible for the consequences of its own ignorance.” The court ordered the department to reinstate Mosely’s case and allow her the opportunity for a rehearing.
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Texas governor issues executive order to extend plumbing oversight

  • What’s the story? Texas Governor Greg Abbott (R) issued an executive order on June 13 to continue the existence of the Texas Board of Plumbing Examiners and the state’s plumbing regulations through May 2021 without the need for a special legislative session.
  • Texas plumbers asked Abbott to call a special legislative session after the Texas State Legislature failed to approve sunset review legislation last month that would have continued regulatory oversight of plumbers in the state.
  • Lawmakers disagreed over the sunset bill’s proposal to move the responsibilities of the plumbing board under the Texas Department of Licensing and Regulation. Supporters of the bill argued that the move would improve efficiency, such as reducing the state’s eight-month processing period for issuing a plumbing license. Opponents claimed that the lengthy licensing period and other alleged inefficiencies of the plumbing board served to protect public health and safety in a specialized industry.
  • Without Abbott’s intervention, the legislative inaction would have resulted in the expiration of the state’s plumbing code on September 1, 2019, and the end of the plumbing board operations by September 2020.
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New study breaks down scope and impact of federal regulations

The Competitive Enterprise Institute (CEI) in May released a new issue of the Ten Thousand Commandments—the group’s annual report detailing the scope of federal regulatory activity and its economic impact. Below is a selection of the report’s conclusions:

The Pacific Legal Foundation provided the following summary of the report’s key findings:

  • “Each U.S. household’s estimated regulatory burden is at least $14,615 annually on average. That amounts to 20 percent of the average pre-tax household budget and exceeds every item in that budget, except housing.”
  • “In 2018, Washington bureaucrats issued regulations at a rate of 11 for every one law Congress enacted. The average for this “Unconstitutionality Index” for the past decade has been 28 to one. The five agencies issuing the most rules are the Departments of Commerce, Defense, Health and Human Services, Transportation, and the Treasury.”
  • “In the pipeline now, 67 federal departments, agencies, and commissions have 3,534 regulatory actions at various stages of implementation … according to the fall 2018 ‘Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions.’”
  • “Of the 3,534 regulations in the Agenda’s pipeline, 174 are ‘economically significant’ rules, which the federal government describes as having annual economic effects of $100 million or more. Of those 174, 38 are deemed ‘deregulatory’ for purposes of E.O. 13,771.”

Click here to read the full report.

Regulatory Tally

Federal Register

  • The Federal Register in May reached 25,492 pages. The number of pages at the end of each May during the Obama administration (2009-2016) averaged 31,268 pages.
  • The Federal Register included 220 proposed rules and 264 final rules during May 2019. The regulations included new rules for Medicare Part D, an electronic signature option for U.S. Postal Service deliveries, and an increase in H-2B visas, among other rules.
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Office of Information and Regulatory Affairs (OIRA)

OIRA’s May regulatory review activity included:
  • Review of 36 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 46 significant regulatory actions each May.
  • Recommended changes to 34 proposed rules.
  • Agencies withdrew two rules from the review process.
  • As of June 2019, the OIRA website listed 113 regulatory actions under review.
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