Author

Caitlin Styrsky

Caitlin Styrsky is a staff writer at Ballotpedia and can be reached at caitlin.styrsky@ballotpedia.org

FTC faces due process challenge to adjudication, administrative law judges

The Federal Trade Commission (FTC) on January 3 became the latest federal agency to face a constitutional challenge to its adjudication procedures, including the role of administrative law judges (ALJs). Axon Enterprises Inc. filed a complaint in the United States District Court for the District of Arizona arguing that the FTC’s adjudication procedures vest the agency and its ALJs “with the powers of prosecutor, judge, and jury in violation of the Due Process and Equal Protection guarantees of the U.S. Constitution.”

Axon, a police equipment manufacturer, filed the complaint in response to a December order from the FTC blocking the company’s acquisition of Vievu LLC, a competing manufacturer of police body cameras. The FTC claimed in part that Axon’s acquisition of Vievu eliminated competition in the police body camera market. Axon contested the claim and argued that the in-house adjudication procedures used by the FTC to pursue the action are unconstitutional because they subject the company to a “biased administrative proceeding with a preordained result.”

Axon claims that the ALJs of the FTC do not act as neutral decision makers during agency adjudication. Instead, the company argues that the ALJs jointly act as prosecutor, judge, and jury.

Axon’s constitutional challenge to the use of ALJs departs from previous challenges because it centers on due process claims rather than Appointments Clause questions, like the challenges faced by the Securities and Exchange Commission (SEC) and the Patent Trial and Appeal Board (PTAB) in recent years

In the 2018 United States Supreme Court case Lucia v. SEC, the court held that the SEC’s ALJs are inferior officers (rather than agency employees) who must be appointed by the agency’s commissioners as required by the Constitution’s Appointments Clause. In October, a three-judge panel of the United States Court of Appeals for the Federal Circuit stripped administrative patent judges—a position similar to ALJs that is specific to the Patent Trial and Appeal Board (PTAB)—of their for-cause removal protections in order to classify them as inferior officers in accordance with the Appointments Clause.

Click here to learn more.

Additional reading:
Adjudication (administrative state)
Federal Trade Commission
Lucia v. SEC



Federal Register weekly update; 2020 page total exceeds 2019 and 2018

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 regulatory activity.

From January 13 to January 17, the Federal Register grew to 3,228 pages. Over the same period in 2019 and 2018, the Federal Register grew to 194 pages and 2,884 pages, respectively. As of January 10, the 2020 total led the 2019 total by 3,034 pages and the 2018 total by 344 pages.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 493 documents:
• 384 notices
• one presidential document
• 42 proposed rules
• 66 final rules

One proposed rule and two final rules were deemed significant under E.O. 12866—meaning that they could 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.

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 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.



FLRA hears testimony in bid to decertify immigration judge union

The Federal Labor Relations Authority (FLRA) held a hearing on January 7 to consider testimony on a petition filed by the U.S. Department of Justice (DOJ) in August that seeks to decertify the union representing the agency’s immigration judges (IJs), the National Association of Immigration Judges (NAIJ).

Decertification of the NAIJ could give DOJ officials more control over the work schedules and caseloads of immigration judges. The DOJ last attempted to decertify the NAIJ in 2000 under the Clinton administration, claiming at the time that IJs function in management roles and cannot legally participate in collective bargaining activities. FLRA rejected the DOJ’s petition in 2000, but the DOJ has since contended, in part, that changes to the Board of Immigration Appeals’ (BIA) review process in 2002 relaxed oversight of IJ decisions and strengthened IJs’ policymaking authority.

In the hearing, DOJ attorneys argued that IJs are management officials who cannot participate in union activities. Federal law defines management officials as “any individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.” IJs qualify as management officials, according to the DOJ, because they can issue final orders that set binding precedent for agency policy.

NAIJ attorneys disagreed with the DOJ’s assessment, arguing that IJs do not serve in management roles because management responsibilities would prevent them from focusing on immigration hearings. Moreover, the attorneys contended that orders issued by IJs can be appealed and reviewed, which limits their ability to set agency policy.

The FLRA is expected to issue a decision later this year.

IJs are a type of federal administrative adjudicator employed by the DOJ to preside over special classes of administrative adjudication proceedings pertaining to immigration, including removal proceedings. The department employed 424 immigration judges as of May 2019.

Click here to learn more.

Additional reading:
U.S. Department of Justice
Federal administrative adjudicators 



Federal Register weekly update; 2020 page total to date exceeds 2019, trails 2018

From January 6 to January 10, the Federal Register grew to 1,730 pages. Over the same period in 2019 and 2018, the Federal Register grew to 106 pages and 2,028 pages, respectively. As of January 10, the 2020 total led the 2019 total by 1,624 pages and trailed the 2018 total by 298 pages.

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 regulatory activity.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 362 documents:
• 281 notices
• one presidential document
• 28 proposed rules
• 52 final rules

Three final rules were deemed significant under E.O. 12866—meaning that they could 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.

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 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.



Federal Register weekly update; first 21 rules of 2020

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 regulatory activity.

From January 1 to January 3, the 2020 Federal Register grew to 418 pages. The publication featured the following 165 documents:
• 131 notices
• zero presidential documents
• 13 proposed rules
• 21 final rules

No proposed or final rules were deemed significant under E.O. 12866—meaning that they could 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.

During the first week of 2019, the Federal Register grew to 34 pages. As of January 3, the 2020 total led the 2019 total by 384 pages.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

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 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.



OIRA reviewed 475 significant rules in 2019

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 475 significant regulatory actions issued by federal agencies in 2019. The agency reviewed a total of 355 significant rules in 2018 and 237 significant rules in 2017.

As of January 3, 2020, OIRA’s website listed 132 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.

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, click here.

Additional reading:
Office of Information and Regulatory Affairs
Rulemaking 



Justice Kavanaugh open to reviving the nondelegation doctrine

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 report on Justice Kavanaugh’s interest in reviving the nondelegation doctrine; the latest figures in the Trump administration’s 2-for-1 deregulatory policy; a summit hosted by the U.S. Department of Justice to examine the need to reform the Administrative Procedure Act (APA); rulemaking and due process reforms at the U.S. Department of Transportation; and the lifting of multiple injunctions against the administration’s rules for determining the admissibility of aliens who are likely to become dependent on public assistance.

At the state level, we review an unusual request for a smaller budget from the Oklahoma State Department of Health, and the New Hampshire governor’s challenge to a federal rule requiring the state to change its highway exit signs. As always, we wrap up with our Regulatory Tally, which features information about the 150 proposed rules and 245 final rules published in the Federal Register in November and the Office of Information and Regulatory Affairs‘ (OIRA) regulatory review activity.

The Checks and Balances Letter

Key readings.jpg

In Washington

Justice Kavanaugh open to reviving the nondelegation doctrine

What’s the story? In a statement published with the United States Supreme Court’s November 25 orders, Justice Brett Kavanaugh noted that Justice Neil Gorsuch’s analysis of the nondelegation doctrine—the constitutional principle forbidding Congress from delegating its legislative powers to the executive—in Gundy v. United States last term “may warrant further consideration in future cases.”
Kavanaugh had not yet joined the court when the conservative justices commented on reviving the nondelegation doctrine in Gundy. His comments suggest that there is now a conservative majority willing to reconsider the doctrine.
Kavanaugh’s statement followed the court’s decision to not hear Ronald W. Paul v. United States, which raised the same issue of statutory interpretation that the court resolved in Gundy. The issue concerns whether the Constitution allows Congress to delegate authority to the U.S. attorney general to retroactively require mandatory sex offender registration without providing explicit guidance on the use of that power.
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Trump administration 2-for-1 deregulatory goal in 2019

What’s the story? The Office of Information and Regulatory Affairs (OIRA) issued its final 2019 fiscal year report on the results of the Trump administration’s 2-to-1 executive order, which requires agencies to eliminate two significant regulations for each new significant regulation issued.
In 2019, OIRA reported that agencies issued 61 significant deregulatory actions (those eliminating significant regulations) and 35 significant regulatory actions for a ratio of 1.7-to-1—just shy of the administration’s 2-to-1 goal.
President Donald Trump (R) instituted the 2-to-1 policy in January 2017 via Executive Order 13771. At the end of the 2017 fiscal year, OIRA reported a ratio of 22-to-1. Following the 2018 fiscal year, OIRA reported a ratio of 4-to-1
The latest 2-to-1 report followed the release of the Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions in late November.
Want to go deeper?

DOJ hosts summit on APA’s contribution to the administrative state

What’s the story? The U.S. Department of Justice (DOJ) on December 6 hosted federal lawmakers, staff, and administrative law experts to consider whether the Administrative Procedure Act (APA) is contributing to the expansion of the administrative state and how the APA should be reformed.
Deputy Attorney General Jeff Rosen delivered the keynote address in which he asserted that “regulation is now our principal form of lawmaking.” He also stated that the increase of informal rulemaking since the 1970s has contributed to the expansion of the administrative state.
Solicitor General Noel Francisco also addressed the gathering, pointing out that informal rulemaking constitutes agency end-runs around judicial review. He also spoke of the potential for codifying Trump’s regulatory reforms, and highlighted recent legislative proposals to reform the APA, such as expanding hybrid and formal rulemaking, increasing the use of cost-benefit analysis, and broadening the scope of judicial review.
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DOT rule on rules

What’s the story? The U.S. Department of Transportation (DOT) on December 5 finalized a rule—dubbed “the rule on rules”—that changes the department’s rulemaking, guidance, and regulatory enforcement practices.
The new rule “enhances the department’s regulatory process by providing greater transparency and strengthening due process in enforcement actions,” according to a statement issued by Transportation Secretary Elaine Chao.
The rule incorporates President Trump’s 2-for-1 regulatory policy (from Executive Order 13771) and the regulatory reform task force (from Executive Order 13777) into the department’s rulemaking practices. The rule also incorporates Trump’s October executive order prohibiting the imposition of regulations through guidance documents.
The rule also aims to strengthen due process protections in the department’s enforcement proceedings by ensuring that proceedings are free from bias, in part by ensuring that enforcement personnel are free from financial or personal interests that could affect the outcome of the enforcement action; that final decisions are well-documented; and that penalties are reasonable, among other changes.
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9th Circuit lifts injunctions against public charge rule

What’s the story? A three-judge panel of the United States Court of Appeals for the 9th Circuit voted 2-1 on December 5 to lift injunctions issued by federal judges in California and Washington that had blocked a Trump administration rule detailing how agencies are to determine the admissibility of aliens who are likely to become “public charges” (e.g., dependent on public assistance).
The ruling stated that the public charge rule is a reasonable interpretation of the Immigration and Nationality Act. Judges Jay Bybee and Sandra Ikuta, both appointed by George W. Bush (R), wrote that the “public charge” phrase “is subject to multiple interpretations, it in fact has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it.”
Judge John Owens, appointed by Barack Obama (D), dissented, stating that he would have preferred for the court to have had more time to conduct an in-depth review of the policy. He also called out Congress for failing to pass immigration legislation that could have avoided the injunctions, and beseeched legislators to take a more active role in addressing immigration.
A panel of the United States Court of Appeals for the 4th Circuit on December 9 followed suit by lifting a separate injunction by a 2-1 vote.
One additional nationwide injunction blocking the rule is currently on appeal before the United States Court of Appeals for the 2nd Circuit.
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In the states

Oklahoma health department request for lower budget confuses legislators

What’s the story? Commissioner Gary Cox of Oklahoma’s Department of Health recently asked state legislators to reduce state funding for the 2021 fiscal year by 1.5%, or roughly $4.5 million. (The department’s complete 2021 budget proposal, including federal funds, totals $427 million.)
Cox’s request resulted in confusion among legislators, some of whom called the proposal counterintuitive and claimed that agencies rarely seek reduced funding. “In my nine years here, this is the first agency that has come to a committee meeting I’ve been a part of and asked for less money,” said state Senator Frank Simpson (R).
Cox told legislators that the proposal aims to reduce costs by eliminating unnecessary and duplicative jobs. The cost savings would be directed toward improving department efficiency by hiring nurses, health educators, and other health department employees.
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New Hampshire governor opposes federal highway edict

What’s the story? New Hampshire Governor Chris Sununu on November 27 said that the state should refuse to implement a 2009 federal regulation that requires highway exit numbers to correspond with mileage markers.
New Hampshire, Delaware, and Massachusetts are the only three states that have yet to fully comply with the federal mandate.
Sununu argued that local businesses who use the state’s sequential exit numbers in their marketing campaigns would incur hefty costs to change their marketing materials; that GPS has made mileage-based systems irrelevant; and that New Hampshire citizens have an emotional connection to their local highway exit signs.
“I don’t know about you, but I love the fact that I grew up as an Exit 3 kid in Salem,” said Sununu via Twitter. “Exit numbers are a point of pride for some of us in NH, and we shouldn’t let Washington bureaucrats threaten to take that away!”
The New Hampshire Department of Transportation estimated that the change would cost $1 million.
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Suppressing dissent in commissions

Attorney Todd Phillips, writing in the November 11th Notice & Comment blog (of the Yale Journal on Regulation) expresses concern over the potential supression of dissent on government commissions. The issue presented itself, he said, in a recent opinion by Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals in a case challenging the release of statements by members of the Commodity Futures Trading Commission. According to Judge Easterbrook, “every member of the Commission has a right to publish an explanation of his or her vote,” but only because of a statute specific to the CFTC.
But what of commissioners for whom no such specific statute exists?
According to Phillips,
“Administrative law currently does not have a good way of dealing with commission minorities and ensuring they are able to articulate their concerns with the actions of the majority. Perhaps it should.”
Click here to read the full post.

Regulatory Tally

Federal Register

  • The Federal Register in November reached 65,906 pages. The number of pages at the end of each November during the Obama administration (2009-2016) averaged 73,485 pages.
  • The November Federal Register included 150 proposed rules and 245 final rules. These included amended Venezuela sanctions, changes to the recruitment requirements for H-2B foreign workers, and the removal of the Colorado butterfly plant from the endangered species list due to its recovery, among others.
Want to go deeper?

Office of Information and Regulatory Affairs (OIRA)

OIRA’s October regulatory review activity included:
  • Review of 46 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 47 significant regulatory actions each November.
  • Approved three proposed rules without changes.
  • Recommended changes to 42 proposed rules.
  • Agencies withdrew one rule from the review process.
  • As of December 17, 2019, the OIRA website listed 135 regulatory actions under review.
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Federal Register weekly update; first week since July with no new presidential documents

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 regulatory activity.

During the week of December 23 to December 27, the Federal Register increased by 1,342 pages, bringing the year-to-date total to 71,734 pages. The week’s Federal Register featured a total of 408 documents, including 323 notices, zero presidential documents, 50 proposed rules, and 35 final rules.

One final rule was deemed significant under E.O. 12866—meaning that it could 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.

During the same week in 2018, the number of pages in the Federal Register increased by 1,600 pages for a year-to-date total of 67,676 pages. As of December 28, the 2019 total led the 2018 total by 4,058 pages.

The Trump administration has added an average of 1,380 pages to the Federal Register each week in 2019 as of December 28. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

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 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.


Federal Register weekly update; 2019 page total surpasses 70,000 pages

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 regulatory activity.

During the week of December 16 to December 20, the Federal Register increased by 2,068 pages, bringing the year-to-date total to 70,392 pages. The week’s Federal Register featured a total of 578 documents, including 447 notices, four presidential documents, 64 proposed rules, and 63 final rules.

Two proposed rules were deemed significant under E.O. 12866—meaning that they could 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.

During the same week in 2018, the number of pages in the Federal Register increased by 1,644 pages for a year-to-date total of 66,076 pages. As of December 20, the 2019 total led the 2018 total by 4,316 pages.

The Trump administration has added an average of 1,380 pages to the Federal Register each week in 2019 as of December 20. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

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 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.



New CFPB lawsuit raises nondelegation challenge

The New Civil Liberties Alliance (NCLA), a pro bono law firm with a focus on the administrative state, filed a lawsuit on December 19 in the U.S. District Court for the Southern District of New York challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB) on the grounds that Congress unlawfully delegated appropriations power to the agency in violation of the nondelegation doctrine. Prior constitutional challenges to the CFPB, including a case currently pending before the United States Supreme Court, have claimed that the CFPB’s single director is unconstitutionally insulated from removal by the president.

The nondelegation doctrine is a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers can’t allow non-lawmakers to make laws. The case, Law Offices of Crystal Moroney v. Bureau of Consumer Financial Protection, alleges that Congress violated the nondelegation doctrine by granting the CFPB the authority to draw funding directly from the Federal Reserve. This grant of authority, according to NCLA, allows the agency to unilaterally exercise appropriations power and evade oversight from congressional appropriations committees.

The lawsuit also reiterates the claim that the structure of the CFPB is unconstitutional because its single director (rather than multi-member commission) has protections that guard against direct removal by the president. This question is currently pending before the United States Supreme Court in Seila Law v. Consumer Financial Protection Bureau.

The case further alleges that the CFPB violated Crystal Moroney’s due process rights by issuing, withdrawing, and—after a federal court dismissed the case—reissuing civil investigative demands against Moroney’s law firm.

Click here to learn more about the nondelegation doctrine.
Click here to learn more about the appointment and removal power.

Additional reading:


Bitnami