Author

Caitlin Styrsky

Caitlin Styrsky is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Checks and Balances – September 2021 – Sue and settle returns to the EPA

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 federal legislation that would return administrative law judges (ALJs) to the competitive civil service; a new statutory interpretation from the U.S. Department of Education allowing states to regulate student loan servicers; recent decisions from the U.S. Supreme Court that allowed for the continuation of the Trump administration’s “Remain in Mexico” policy and that struck down the Centers for Disease Control and Prevention’s eviction moratorium; and the return of sue and settle practices at the Environmental Protection Agency. 

At the state level, we take a look at state and local jurisdictions with eviction moratoriums that remain in place after the Supreme Court’s decision.

We also highlight a new report from the U.S. Government Accountability Office that surveyed the use of facial recognition technology by federal agencies. As always, we wrap up with our Regulatory Tally, which features information about the 187 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.


In Washington

Bill aiming to return ALJs to competitive service advances in House

What’s the story? 

The U.S. House Reform and Oversight Committee on July 20 voted 24-16 along party lines to advance legislation that would redesignate administrative law judges (ALJs) as members of the competitive civil service and reestablish the U.S. Office of Personnel Management’s authority over the ALJ hiring process. 

President Donald Trump in 2018 moved ALJs from the competitive civil service to the excepted service via Executive Order 13843. The order aimed to align ALJ appointment practices with the U.S. Supreme Court’s decision in Lucia v. SEC, which held that the ALJs of the U.S. Securities and Exchange Commission (SEC) are are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. Prior to the order, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.

Supporters of the legislation (the Administrative Law Judges Competitive Service Restoration Act) argue that E.O. 13843 threatens ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.“This exposed impartial judges, who determined the outcome of disputes over labor-management relations, claims for Social Security and public health benefits, to political influence,” said the bill’s author, Representative Gerry Connolly (D-Va.).

Opponents of the legislation argue that E.O. 13843 strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria. “By placing ALJs in the excepted service, it gave federal departments and agencies greater flexibility to assess prospective ALJ candidates,” said the committee’s ranking member, Rep. James Comer (R-Ky.).

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Department of Education issues new statutory interpretation allowing states to regulate student loan servicers

What’s the story? 

The U.S. Department of Education (ED) on August 9 announced its departure from the Trump administration’s statutory interpretation of the federal Higher Education Act (HEA) that prevented states from regulating student loan servicers. Under the department’s new interpretation, states will be able to develop and enforce consumer protection standards applicable to student loan servicers as long as they are not preempted by federal law.

“Effective collaboration among the states and federal government is the best way to ensure that student loan borrowers get the best possible service,” said Education Secretary Miguel Cardona in a press release. “We welcome public input on this interpretation and look forward to enhancing consumer protections for student loan borrowers by clarifying the relationship between federal and state law on this issue.” 

Former ED Secretary Betsy DeVos aimed to limit state regulation of student loan servicers in order to avoid what she referred to as a regulatory maze of state and federal requirements. Student loan servicers have argued that additional state regulations will increase both business costs and confusion among borrowers.

“Forcing [federal student loan servicers] to serve dozens of state governments that contradict federal rules will create borrower confusion and worsen the borrowers’ repayment experience,” U.S. House Education and Labor Committee ranking member Virginia Foxx (R-N.C.) told The Washington Post. “The department’s bureaucratic incompetence, combined with inherent design flaws in the Higher Education Act, are the reasons why borrowers get left behind.”

Since 2014, more than half of all states have proposed or implemented state-level requirements for student loan servicers. In some states, such as Virginia and Massachusetts, these requirements take the form of a borrower’s bill of rights—minimum timeliness standards for loan processing, communications, and other concerns. Similar legislation is pending in a dozen states, according to the Student Borrower Protection Center.

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SCOTUS declines to block Remain in Mexico policy, strikes down CDC’s eviction moratorium 

What’s the story? 

The U.S. Supreme Court last month issued two noteworthy decisions concerning the exercise of agency authority. The court first declined to block a district judge’s ruling that ordered the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (known as the “Remain in Mexico” policy). The court later found that the Centers for Disease Control and Prevention’s (CDC) eviction moratorium issued in response to the coronavirus (COVID-19) pandemic was unconstitutional.

In an unsigned order, the court on August 24 declined to block a ruling from U.S. District Judge Matthew Kacsmaryk in Biden v. Texas that directed the Biden administration to reinstate the U.S. Department of Homeland Security’s Migrant Protection Protocols. The program, instituted under the Trump administration, requires asylum-seekers to wait in Mexico prior to their immigration hearings. 

The justices found that the “applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” While six justices supported the order, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer would have issued a stay to block the district court ruling while the case moves through the appeals process.

Two days later, the court issued another unsigned opinion in Alabama Association of Realtors v. U.S. Department of Health and Human Services holding that the CDC’s eviction moratorium unlawfully exceeded the agency’s statutory authority. “It strains credulity to believe that [§361(a) of the Public Health Service Act] grants the CDC the sweeping authority that it asserts,” wrote the majority justices. 

Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer again dissented, arguing in part that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.”

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WOTUS ruling signals return of sue and settle

What’s the story?

U.S. District Judge Rosemary Marquez on August 30 issued a decision in Pasqua Yaqui Tribe et al. v. U.S. Environmental Protection Agency that vacated and remanded the Trump administration’s Navigable Waters Protection Rule (NWPR), which narrowed the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The ruling signals a return to sue and settle practices at the EPA, which the Trump administration had outlawed through an agency directive in 2017.

Sue and settle is a term used to describe cases in which a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process. Through sue and settle, outside groups sue an agency in order to reach a settlement on terms favorable to the regulatory goals of both.

The NWPR adopted a narrow definition of “waters of the United States” (WOTUS) that limited the EPA’s authority to regulate certain waters, including wetlands. The rule adopted Justice Antonin Scalia’s reasoning in Rapanos v. United States (2006) that only wetlands adjacent to navigable waters fall under CWA oversight. A coalition of Native American tribes challenged the rule in the United States District Court for the District of Arizona, arguing that the WOTUS definition under the NWPR disregards established science and is inconsistent with the statutory objectives of the CWA.

The EPA under the Biden administration had “expressed an intent to repeal the NWPR and return to the pre-2015 regulatory regime while working on a new definition of ‘waters of the United States,’” according to Judge Marquez’s opinion. 

Judge Marquez ruled in favor of the plaintiffs, finding that their concerns “are not mere procedural errors or problems that could be remedied through further explanation. Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’” 

It is unclear what standard now controls WOTUS regulation under the CWA. The Trump administration rescinded a 2015 Obama-era WOTUS regulation and the U.S. Supreme Court in Rapanos and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) found the pre-2015 regulations to be overly expansive, according to administrative law scholar Jonathan Adler. 

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In the states

Eviction bans continue across the states

What’s the story? 

The U.S. Supreme Court on August 26 struck down the Centers for Disease Control and Prevention’s (CDC) federal eviction moratorium but similar eviction bans issued in response to the coronavirus (COVID-19) pandemic remain in effect in cities and states across the country.

The following selected state and local jurisdictions had eviction bans in place as of September 13:

  • California’s eviction moratorium remains in effect until September 30. 
  • Illinois’ eviction moratorium expires on October 3. 
  • New Jersey’s eviction ban expires in January 2022. 
  • Washington D.C.’s eviction ban expires in January 2022.
  • New Mexico’s eviction moratorium does not have a set expiration date.
  • New York’s eviction moratorium expires in January 2022.
  • Washington’s eviction ban remains in effect under certain circumstances through October 15.

The above list is not comprehensive and additional eviction bans may remain in effect. State and local programs that aim to support renters seeking rental assistance, such as a Nevada policy that prohibits the eviction of tenants who have applied for rental assistance, may also function as de facto eviction bans.

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GAO report sheds light on federal agency use of facial recognition technology

An August 24 report from the U.S. Government Accountability Office (GAO) found that at least 18 federal agencies use facial recognition technology (FRT).

The GAO survey of 24 federal agencies revealed the following findings: 

  • Sixteen agencies stated that they use FRT for digital access or cybersecurity, including 14 agencies that use FRT for employees to unlock their agency-issued smartphones and two agencies that use FRT to control website access. 
  • Six agencies, including the Department of Homeland Security (DHS), Department of Justice (DOJ), and Department of Defense (DOD) reported using FRT for law enforcement purposes.
  • Five agencies reported using FRT for security purposes, such as controlling building access. 
  • Ten agencies planned to expand their use of FRT.

“It’s becoming increasingly important to get a more comprehensive understanding of the use of facial recognition technology across federal agencies,” Candice Wright, a director in GAO’s Science, Technology Assessment and Analytics Team, told Cox Media Group. “There’s certainly been a lot of advancements recently with facial recognition technology. It has been increasingly used for a range of purposes in both the commercial and government sectors.”

The report raised concerns among privacy advocates, including Adam Schwartz, senior attorney at the Electronic Frontier Foundation. “This technology is dangerous. It leads to people being falsely arrested, it invades our privacy, it deters people from going to protests,” Schwartz told Popular Mechanics. “The government should not be using it at all, so it is pretty sad to read that they’re actually expanding their use of it.”

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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 37 significant regulatory actions. 
  • One rule approved without changes; recommended changes to 33 proposed rules; three rules withdrawn from the review process.
  • As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.
  • Want to go deeper? 


Federal Register weekly update: 14 new significant rules

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 13 through Sept. 17, the Federal Register grew by 1,234 pages for a year-to-date total of 52,070 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 576 documents:

  • 458 notices
  • 13 presidential documents
  • 46 proposed rules
  • 59 final rules

Six proposed rules, including a call for public input from the U.S. Fish and Wildlife Service regarding authorization for the incidental taking of eagles, and eight final rules, including a court-ordered delay of a Food and Drug Administration rule concerning tobacco product warnings, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 58 significant proposed rules, 63 significant final rules, and one significant notice as of Sept. 17.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017: Changes to the Federal Register 

Additional reading:

Click here to find yearly information about additions to the Federal Register from 1936 to 2019: Historical additions to the Federal Register, 1936-2019



Federal Register weekly update: Tops 50,000 pages

Photo of the White House in Washington, D.C.

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 6 through Sept. 10, the Federal Register grew by 934 pages for a year-to-date total of 50,836 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 449 documents:

  1. 354 notices
  2. Seven presidential documents
  3. 29 proposed rules
  4. 59 final rules

Three proposed rules, including a new mine safety program from the Mine Safety and Health Administration (MSHA), and two final rules, including a revision to the Federal Emergency Management Agency’s (FEMA) hazard mitigation assistance and mitigation planning regulations, were deemed significant under E.O. 12866— defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 52 significant proposed rules, 55 significant final rules, and one significant notice as of Sept. 10.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2019.



Federal Register weekly update: More than 250 presidential documents issued so far in 2021

Graphic with the five pillars of the

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 30 through September 3, the Federal Register grew by 1,608 pages for a year-to-date total of 49,902 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 590 documents:

  1. 467 notices
  2. 11 presidential documents
  3. 39 proposed rules
  4. 73 final rules

Five proposed rules, including new migratory game bird hunting regulations from the U.S. Fish and Wildlife Service, and seven final rules, including the establishment of a dairy product donation program through the U.S. Department of Agriculture, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 49 significant proposed rules, 53 significant final rules, and one significant notice as of September 3.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

Additional reading:



OIRA reviewed 37 significant rules in August

Banner with the words "The Administrative State Project"

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 37 significant regulatory actions issued by federal agencies in August 2021. The agency approved one rule without changes and approved the intent of 33 rules while recommending changes to their content. Three rules were withdrawn from the review process.

OIRA reviewed 64 significant regulatory actions in August 2020, 49 significant regulatory actions in August 2019, 35 significant regulatory actions in August 2018, and 12 significant regulatory actions in August 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 53 significant regulatory actions each August.

OIRA has reviewed a total of 345 significant rules in 2021. The agency reviewed a total of 676 significant rules in 2020, 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.

OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.

Additional reading:



Federal Register weekly update: 611 new documents added

Banner with the words "The Administrative State Project"

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 23 through August 27, the Federal Register grew by 1,344 pages for a year-to-date total of 48,294 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 611 documents:

  1. 495 notices
  2. Two presidential documents
  3. 52 proposed rules
  4. 62 final rules

Seven proposed rules and five final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 44 significant proposed rules, 46 significant final rules, and one significant notice as of August 27.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Additional reading:



Federal Register weekly update: More than 2,000 final rules added so far in 2021

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 16 through August 20, the Federal Register grew by 2,178 pages for a year-to-date total of 46,950 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 515 documents:

  1. 426 notices
  2. Three presidential documents
  3. 28 proposed rules
  4. 58 final rules

Three proposed rules and six final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 37 significant proposed rules, 41 significant final rules, and one significant notice as of August 20.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2019.



Checks and Balances: FTC expands interpretation of its antitrust enforcement authority

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 a recent vote from the Federal Trade Commission to broaden its interpretation of the commission’s antitrust enforcement authority; Attorney General Merrick Garland’s restoration of administrative closure authority for immigration judges; and the latest activity from the U.S. Department of Health and Human Services aimed at rolling back state Medicaid work requirements. 

At the state level, we take a look at the Colorado Supreme Court’s new limits on deference practices in the state; a Wisconsin Supreme Court ruling that affirms agency authority to regulate state water resources; and state legislative approval of an indirect initiative in Michigan repealing the governor’s emergency powers.

We also highlight new commentary from the editorial board of The New York Sun that proposes referring to the current Supreme Court as the Hamburger Court after Columbia law professor Philip Hamburger. As always, we wrap up with our Regulatory Tally, which features information about the 182 proposed rules and 288 final rules added to the Federal Register in July and OIRA’s regulatory review activity.


In Washington

FTC expands interpretation of its antitrust enforcement authority

What’s the story? 

The Federal Trade Commission (FTC) on July 1 voted 3-2 to broaden its interpretation of the commission’s Section 5 authority, which authorizes the FTC to investigate and challenge what it deems “unfair methods of competition in or affecting commerce.” The change could allow the agency to expand enforcement proceedings against companies that don’t expressly violate federal antitrust statutes.

The new interpretation departs from the commission’s 2015 precedent, established through internal guidance, that relied on the consumer welfare standard to determine what constitutes antitrust activity. According to the consumer welfare standard, only companies that artificially raise prices qualify as monopolies for the purposes of FTC enforcement. The FTC did not pursue companies via this standard if enforcement through the Sherman Act or the Clayton Act could address the competitive harm.

Under the FTC’s broadened interpretation of its authority, the commission can issue civil penalties to challenge what it deems to be anti-competitive behavior regardless of whether the behavior violates federal antitrust statutes. The change could allow the FTC to bring enforcement proceedings against tech companies that do not qualify as monopolies but that, in the opinion of FTC Chair Lina Khan, have been alleged to have exhibited anti-competitive practices.

“Withdrawing the 2015 Statement is only the start of our efforts to clarify the meaning of Section 5 and apply it to today’s markets,” wrote Khan in a statement. “Section 5 is one of the Commission’s core statutory authorities in competition cases; it is a critical tool that the agency can and must utilize in fulfilling its congressional mandate to condemn unfair methods of competition.”

FTC Commissioner Christine Wilson issued a dissenting statement arguing that the consumer welfare standard “promotes predictability, administrability and credibility in antitrust enforcement. Without it, we can expect that antitrust enforcement will reflect political motivations rather than reasoned and objective assessments of benefits and harms to consumers.”

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Garland restores immigration judges’ authority to delay deportations

What’s the story? 

Attorney General Merrick Garland on July 15 issued a decision in a case before the Board of Immigration Appeals that reversed a Trump administration policy preventing immigration judges (IJs) from exercising administrative closure—a process that allows IJs to delay the deportation of individuals awaiting green cards or visas. 

Former Attorney General Jeff Sessions issued a 2018 decision that barred IJs from pausing deportation proceedings through administrative closure. “​​Although described as a temporary suspension,” claimed Sessions, “administrative closure is effectively permanent in most instances.” Sessions further argued that the U.S. Department of Homeland Security (DHS), rather than IJs, “has the exclusive authority to decide whether and when to initiate proceedings.” 

Three courts of appeals later rejected Sessions’ position and held that the U.S. Department of Justice’s (DOJ) regulations grant IJs the authority to exercise administrative closure. Garland agreed with the judges in his decision, stating that “administrative closure is ‘plainly within an immigration judge’s authority’ under Department of Justice regulations.” DOJ officials initiated rulemaking procedures in December 2020 aimed at codifying IJs’ administrative closure authority, barring a subsequent DOJ regulation or federal court ruling to the contrary.

Immigration Judge Dana Leigh Marks, executive vice president of the National Association of Immigration Judges, told the Associated Press that Garland’s decision to revive administrative closure will allow IJs to “clear our dockets so we’re dealing with cases that are really ready for hearings.” Former Justice Department official Gene Hamilton, on the other hand, argued that the resurgence of administrative closure will allow individuals residing in the country without legal permission to avoid deportation.

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HHS revokes state Medicaid work requirements

What’s the story? 

The U.S Department of Health and Human Services (HHS) on June 24 withdrew its conditional approval for Medicaid work requirements in Indiana and Arizona. HHS stated that the work requirements failed to, in its words, “promote the objectives of the Medicaid program.” 

Nineteen states applied for waivers to establish some form of work requirements for Medicaid recipients during the Trump administration, according to the Kaiser Family Foundation (KFF). HHS granted conditional approval for waivers in eight states, but federal litigation and the coronavirus (COVID-19) pandemic delayed their implementation.

In February 2021, HHS issued letters to all states with conditionally approved Medicaid work requirements directing those states to begin rolling back their program changes. The department later acted in March to expressly revoke planned Medicaid work requirements in Arkansas, Michigan, New Hampshire, and Wisconsin.

HHS on June 24 issued letters to the Indiana Family and Social Services Administration and the Arizona Health Care Cost Containment System withdrawing conditional approval for the states’ Medicaid work requirements, claiming in part that the work requirements would risk significant coverage losses among Medicaid recipients in the states and thus failed to further the intent of the Medicaid program.

Indiana Governor Eric Holcomb (R) expressed disappointment with the HHS decision, but told the Associated Press that the state would “continue to support the health and well-being of Hoosiers, and our participants will receive much needed job training and career support to help them transition from Medicaid to full employment.”

The Biden administration is expected to reject the remaining pending and conditionally approved state waivers for Medicaid work requirements, according to KFF.

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In the states

Colorado Supreme Court narrows state deference practices

What’s the story? In the wake of the Mississippi Supreme Court’s June 10 rejection of state-level Auer deference, the Colorado Supreme Court followed suit in a June 14 en banc decision that narrowed applications of Brand X deference and Chevron deference practices in the state.

In Nieto v. Clark’s Market, the court declined to extend Brand X deference to a regulation issued by the Colorado Department of Labor and Employment (CDLE). Brand X deference requires courts to defer to reasonable agency interpretations of statutes even when the interpretations conflict with prior court precedent. The challenged regulation in Nieto adopted an interpretation of a state labor law that departed from precedent set by the state Court of Appeals, but the Colorado Supreme Court declined to extend Brand X deference to the agency’s interpretation in the case.

“[T]he CDLE is a state agency, and the [U.S. Supreme] Court’s holding in Brand X is not binding as to parallel state administrative procedure statutes,” wrote Justice Melissa Hart in the opinion. “We have not yet similarly interpreted the Colorado Administrative Procedure Act, and we decline Nieto’s invitation to do so here.”

The justices further rejected state-level Chevron deference, which compels a court to defer to an agency’s interpretation of an unclear statute. Justice Hart stated that while the court has applied Chevron-style deference in the past, “we have made clear that, while agency interpretations should be given due consideration, they are ‘not binding on the court.’”

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Wisconsin Supreme Court affirms agency authority to regulate state water resources

What’s the story? The Wisconsin Supreme Court on July 8 issued decisions in two environmental cases that had pitted the state legislature against the state Department of Natural Resources (DNR) in a disagreement over which government entity has the authority to regulate water pollution and irrigation practices. In both cases, the court held 4-2 that the DNR is authorized to restrict permits in order to protect the state’s water resources.

The pair of cases, both initiated by Clean Wisconsin Inc. and Pleasant Lake Management District, centered on Wisconsin Act 21—a 2011 law that limits state agency authority by prohibiting state agencies from taking actions not specifically authorized by the state legislature.

The first case concerned an administrative law judge’s (ALJ) order that the DNR limit the size of a dairy herd causing nearby groundwater contamination. The DNR under then-Governor Scott Walker (R) did not enforce the ALJ’s directive, arguing that Act 21 prohibited the agency from carrying out the order.

A Dane County Circuit Court judge in 2016 affirmed the DNR’s authority to limit the size of the dairy herd to address water pollution. The DNR appealed the decision to the Wisconsin Supreme Court. The current DNR under Governor Tony Evers (D) changed its position and had since claimed regulatory authority in the case.

The Wisconsin Supreme Court upheld the circuit court’s decision. Writing for the majority, Justice Jill Karofsky stated “we conclude that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with [Act 21].”

In the second case, challengers sued the DNR seeking stricter enforcement of regulations regarding large-scale water withdrawals for irrigation. Challengers claimed that the agency failed to consider the cumulative negative impact on water levels in nearby lakes and streams when it issued permits for nine high-capacity wells. As in the previous case, the DNR argued that Act 21 prevented the agency from considering the cumulative impact of the new wells. 

The Wisconsin Supreme Court again affirmed the circuit court’s decision in the case, holding that the DNR erroneously claimed that it lacked regulatory authority. Writing for the majority, Justice Rebecca Dallet stated, “The DNR’s authority to consider the environmental effects of proposed high capacity wells, while broad, is nevertheless explicitly permitted by statute.”

Chief Justice Annette Ziegler joined Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky in both majority opinions. Justice Brian Hagedorn did not participate in the case.

Justices Rebecca Bradley and Patience Roggensack dissented, arguing in part: “Elevating its environmental policy preferences over the legislature’s prerogative to reclaim its constitutional authority, the majority distorts the plain language of [Act 21] to achieve its own ends.”

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Michigan legislators approve indirect initiative repealing governor’s emergency powers

What’s the story? The Michigan House of Representatives on July 21 voted 60-48 to approve the indirect initiative that repealed the Emergency Powers of Governor Act (EPGA)—a 1945 state law that authorized the governor to issue regulations with associated penalties to bring emergencies under control.

The campaign Unlock Michigan filed the initiative in June 2020, three months after Governor Gretchen Whitmer (D) issued the first coronavirus-related disaster declaration. In October 2020, the Michigan Supreme Court voted 4-3 to strike down the EPGA, holding that the law violated the nondelegation doctrine by unconstitutionally delegating legislative power to the executive branch. While the Supreme Court rendered the EPGA moot, Unlock Michigan continued to advocate for the law’s repeal to prevent the court from changing course in the future.

The House vote followed the state Senate’s 20-15 vote to approve the initiative. The Michigan governor cannot veto the legislature’s approval of an indirect citizen-initiated measure. 

Since March 2020, the following nine states have enacted 12 bills aimed at increasing legislative oversight of gubernatorial emergency authority: Arkansas, Colorado, Indiana, Kansas, Kentucky, New York, Ohio, Pennsylvania, and Utah. 

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The Hamburger Court?

The editorial board of The New York Sun on July 2 questioned, “What in the world are historians going to call this Supreme Court?”

The board rejected the traditional Roberts Court nomenclature in favor of the Hamburger Court after Columbia law professor and founder of the New Civil Liberties Alliance (NCLA) Philip Hamburger. The board argued that Hamburger’s scholarly work, which they described as aimed at reining in the administrative state, coupled with NCLA’s six victories in Supreme Court cases this term in which it filed amicus briefs, demonstrates Hamburger’s growing influence in legal circles.

The board argued that Hamburger’s work has, in their opinion, spurred a movement to return to constitutional principles:

“We understand that a lot of credit can be spread around for the advances in the long slog away from the doctrine of ‘Chevron deference,’ which has held sway in our courts for decades and requires that great deference is owed to our administrative agencies, however unaccountable they might be. Yet that only underlines the size of the problem and the valor of Mr. Hamburger and his colleagues in taking it on.

“‘Most Americans do not realize,’ the New Civil Liberties Alliance notes on its Web site, ‘that Congress today enacts fewer than one hundred statutes per year, handing over the task of legislating to federal administrative agencies.’ It reckons that the Administrative State ‘now creates, enforces and adjudicates hundreds of thousands of regulations governing daily activities in our lives.’ It’s nice to see that the long march back to the Constitution has begun.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 43 significant regulatory actions. 
  • No rules approved without changes; recommended changes to 38 proposed rules; five rules withdrawn from the review process.
  • As of August 2, 2021, OIRA’s website listed 65 regulatory actions under review.
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Federal Register weekly update: Seven significant final rules added

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 9 through August 13, the Federal Register grew by 1,392 pages for a year-to-date total of 44,772 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 540 documents:

  1. 414 notices
  2. Six presidential documents
  3. 56 proposed rules
  4. 64 final rules

Six proposed rules and seven final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 34 significant proposed rules, 35 significant final rules, and one significant notice as of August 13.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click below to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.



Federal Register weekly update: Thirteen significant documents added

Photo of the White House in Washington, D.C.

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 2 through August 6, the Federal Register grew by 2,000 pages for a year-to-date total of 43,380 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 499 documents:

  • 394 notices
  • No presidential documents
  • 38 proposed rules
  • 67 final rules

Four proposed rules and nine final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 28 significant proposed rules, 28 significant final rules, and one significant notice as of August 6.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017: Changes to the Federal Register 

Additional reading:

Click here to find yearly information about additions to the Federal Register from 1936 to 2019: Historical additions to the Federal Register, 1936-2019