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Caitlin Styrsky

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

Federal Register weekly update; 2019 weekly page average tops 1,000 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 April 8 to April 12, the number of pages in the Federal Register increased by 1,288 pages, bringing the year-to-date total to 15,082 pages. This week’s Federal Register featured a total of 551 documents, including 436 notices, four presidential documents, 45 proposed rules, and 66 final rules.
 
One final rule was deemed significant under E.O. 12866—meaning that it may 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 1,164 pages. As of April 12, the 2019 total trailed the 2018 total by 1,100 pages.
 
The Trump administration has added an average of 1,005 pages to the Federal Register each week in 2019 as of April 12. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Third federal judge strikes down citizenship question on 2020 U.S. Census

Judge George Jarrod Hazel of the United States District Court for the District of Maryland became the third federal judge to block a citizenship question on the 2020 U.S. Census on April 5, 2019. Hazel ruled in a consolidated case that the question, in his view, was unconstitutional and a violation of administrative law.
 
Commerce Secretary Wilbur Ross approved the addition of a citizenship question on the 2020 U.S. Census in March 2018. The question asks, “Is this person a citizen of the United States?”
 
Hazel claimed that the citizenship question violates the U.S. Constitution because it could hinder the government’s responsibility under the Enumeration Clause to count every person living in the United States. He also claimed that the Trump administration failed to follow proper administrative procedure when it added the citizenship question to the U.S. Census. He wrote, “The decision to add a citizenship question to the 2020 Census was arbitrary and capricious in violation of the [Administrative Procedure Act]” and “ran counter to the evidence before the agency.” Ross has stated that he added the citizenship question to the 2020 census at the request of the U.S. Department of Justice (DOJ) in order to improve enforcement of the Voting Rights Act.
 
Three federal judges had blocked the citizenship question from appearing on 2020 census forms as of April 2019. The United States Supreme Court will hear oral arguments on the question in Department of Commerce v. New York on April 23, 2019. A ruling is expected in June 2019.
 


Federal Register weekly update; highest weekly total of presidential documents in 2019

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 April 1 to April 5, the number of pages in the Federal Register increased by 1,748 pages, bringing the year-to-date total to 13,794 pages. This week’s Federal Register featured a total of 604 documents, including 452 notices, 12 presidential documents, 57 proposed rules, and 83 final rules.
 
One proposed rules, three final rules, and one notice were deemed significant under E.O. 12866—meaning that they may 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 1,394 pages. As of April 5, the 2019 total trailed the 2018 total by 1,224 pages.
 
The Trump administration has added an average of 985 pages to the Federal Register each week in 2019 as of April 5. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


March 2019 OIRA review count; highest monthly review count of 2019

In March 2019, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 27 significant regulatory actions issued by federal agencies. The agency approved three rules without changes and approved the intent of 23 rules while recommending changes to their content. One rule was subject to a statutory or judicial deadline.
 
OIRA reviewed 19 significant regulatory actions in March 2018—eight fewer rules than the 27 significant regulatory actions reviewed by the agency in March 2019. During the Obama administration from 2009-2016, OIRA reviewed an average of 42 significant regulatory actions each February.
 
OIRA reviewed a total of 355 significant rules in 2018. In 2017, the agency reviewed 237 significant rules.
 
As of April 1, 2019, OIRA’s website listed 115 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.
 


Federal Register weekly update; fewest final rules added since end of January

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 March 25 to March 29, the number of pages in the Federal Register increased by 1,076 pages, bringing the year-to-date total to 12,046 pages. This week’s Federal Register featured a total of 566 documents, including 474 notices, four presidential documents, 40 proposed rules, and 48 final rules.
 
Three proposed rules and two final rules were deemed significant under E.O. 12866—meaning that they may 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 776 pages. As of March 29, the 2019 total trailed the 2018 total by 1,578 pages.
 
The Trump administration has added an average of 927 pages to the Federal Register each week in 2019 as of March 29. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Federal judge expresses concern over constitutionality of ALJ proceedings

Judge John McBryde of the U.S. District Court for the Northern District of Texas expressed concern on Tuesday in his opinion in Cochran v. SEC over the constitutionality of the administrative law judges (ALJs) at the Securities and Exchange Commission (SEC).
 
The plaintiff, Michelle Cochran, appealed an adverse decision from an SEC ALJ in 2017, but further action on her appeal was stalled as Lucia v. SEC moved through the federal courts. The Lucia case challenged the constitutionality of the SEC’s ALJ appointment process. The United States Supreme Court ultimately ruled in June 2018 the agency’s ALJ appointments violated the U.S. Constitution’s Appointments Clause. Following the Lucia decision, Cochran’s case was reassigned to new proceedings before a different, constitutionally-appointed ALJ.
 
Cochran filed for injunctive relief against the agency proceedings in district court, claiming that the SEC’s ALJs remained unconstitutionally appointed despite ratification by the agency’s commissioners. Cochran argued that the SEC’s ALJs have double for-cause removal protections, which unconstitutionally insulate them from direct removal by the president.
 
McBryde dismissed the case due to the court’s lack of subject matter jurisdiction. However, he expressed concern over the constitutionality of the SEC’s ALJs in his opinion, stating, “The court is deeply concerned with the fact that plaintiff has been subjected to extensive proceedings before an ALJ who was not constitutionally appointed and contends that the one she must now face for further, undoubtedly extended, proceedings likewise is unconstitutionally appointed.”
 
The New Civil Liberties Alliance, a pro bono law firm with a focus on the administrative state, plans to appeal Cochran’s case to the United States Court of Appeals for the Fifth Circuit.
 
Additional reading:


Federal Register weekly update; year-to-date page total exceeds 10,000 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 March 18 to March 22, the number of pages in the Federal Register increased by 1,278 pages, bringing the year-to-date total to 10,970 pages. A total of 620 documents were included in the week’s Federal Register, including 511 notices, five presidential documents, 45 proposed rules, and 59 final rules.
 
Three final rules were deemed significant under E.O. 12866—meaning that they may 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 1,004 pages. As of March 22, the 2019 total trailed the 2018 total by 1,878 pages.
 
The Trump administration has added an average of 914 pages to the Federal Register each week in 2019 as of March 22. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Civil service reforms resurface in Trump’s 2020 budget proposal

President Trump’s (R) 2020 budget proposal includes provisions that would impact the structure and internal procedures of the federal civil service.
 
A selection of the provisions was previously featured in Trump’s three civil service executive orders (E.O. 13837, E.O. 13836, and E.O. 13839) issued in May 2018. These include proposals aimed at removing poor-performing federal employees and streamlining collective bargaining procedures. A federal district judge struck down the bulk of the executive orders in August 2018 and an appeal is currently pending before the United States Court of Appeals for the District of Columbia Circuit.
 
Additional civil service provisions featured in Trump’s 2020 budget proposal include:
  • Establishing new pay systems for special occupations.
  • Increasing temporary hiring to employ more highly qualified experts.
  • Eliminating certain retirement pensions in favor of contributions to the government’s Thrift Savings Plan.
  • Creating an industry exchange to allow nonprofit employees and academics to temporarily serve on federal projects.
  • Increasing the number of federal interns, which dropped from 35,000 in 2010 to 4,000 in 2018.
  • Re-skilling federal employees who currently serve in transactional positions that can be automated.
Congress must reconcile and approve a set of appropriations bills in order for the president to sign the budget into law.
 
The federal civil service is made up of all unelected “positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services,” according to the United States Code. The civil service is subdivided into the competitive service, the excepted service, and the Senior Executive Service.
 


Federal Register weekly update; lowest weekly page total since January

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 March 11 to March 15, the number of pages in the Federal Register increased by 1,104 pages, bringing the year-to-date total to 9,692 pages. A total of 596 documents were included in the week’s Federal Register, including 494 notices, three presidential documents, 30 proposed rules, and 69 final rules.
 
One final rule was deemed significant under E.O. 12866—meaning that it may 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 1,292 pages. As of March 15, the 2019 total trailed the 2018 total by 2,152 pages.
 
The Trump administration has added an average of 881 pages to the Federal Register each week in 2019 as of March 15. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 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.


DOJ asks SCOTUS to consider constitutional claim against census citizenship question

The U.S. Department of Justice (DOJ) requested on March 11 that the U.S. Supreme Court weigh in on Judge Richard Seeborg’s constitutional claim challenging the addition of a citizenship question on the U.S. Census when it hears Department of Commerce v. New York in April 2019. Seeborg’s ruling was the second decision by a federal judge since January challenging the addition of the citizenship question, which asks, “Is this person a citizen of the United States?”

Seeborg issued a ruling in State of California v. Ross on March 6, 2019, holding that Commerce Secretary Wilbur Ross’ addition of a citizenship question on the 2020 census was, in his view, unconstitutional and a violation of the Administrative Procedure Act (APA). Seeborg ruled that the question was unconstitutional because it prevented the federal government from carrying out its duty under the U.S. Constitution’s Enumeration Clause to count every person living in the United States every 10 years, which could distort the proper apportionment of congressional representatives. He also held that the question violated the APA because he interpreted the administrative record in the case as being contrary to law.

Seeborg’s ruling follows Judge Jesse Furman’s decision in January 2019 holding that the citizenship question violated the APA by failing to follow proper procedure. Though plaintiffs in the case had also argued that Ross violated the equal protection component of the U.S. Constitution’s Due Process Clause, Furman held that the due process claims fell short because the administrative record in the case did not demonstrate discrimination as a motivating factor for Ross’ decision. The U.S. Supreme Court announced in February that it would hear Furman’s case—Department of Commerce v. New York—in April 2019.

Solicitor General Noel Francisco sent a letter to the U.S. Supreme Court on March 11, 2019, asking the court to also consider Seeborg’s constitutional claims when they hear Department of Commerce v. New York. “In light of that finding, only if the Court addresses respondents’ Enumeration Clause claim can its decision definitively resolve whether the Secretary may reinstate a question about citizenship to the 2020 decennial census,” said Francisco. He continued, “In the alternative, if the Court has any concerns about addressing respondents’ Enumeration Clause claim in this case, it should grant the government’s petition in the California case and consolidate that case with this one for oral argument.”

Two additional lawsuits claiming that the citizenship question discriminates against immigrant and minority communities are pending before Judge George Hazel of the United States District Court for the District of Maryland. Hazel heard closing arguments in February.



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