Author

Jace Lington

Jace Lington is a staff writer at Ballotpedia and can be reached at jace.lington@ballotpedia.org

Idaho governor targets regulatory costs with two executive orders

Idaho Governor Brad Little signed two executive orders in January 2019 aimed at reducing state regulations on businesses and individuals in Idaho. He said that the orders would “help simplify Idaho state government and make it more accountable to citizens.”
 
The first executive order, the Licensing Freedom Act of 2019 (LFA), makes changes to the way Idaho implements and maintains occupational licenses. The LFA establishes a sunset rule that requires a regular gubernatorial review of every licensure requirement to determine whether those requirements still serve the public interest. The LFA also creates a list of sunrise factors that the governor and executive departments must consider with the legislature in order to impose new regulations on businesses, professions, or occupations.
 
The second executive order, called the Red Tape Reduction Act (RTRA), requires the state Division of Financial Management to submit annual reports detailing efforts to eliminate regulations and to streamline state government. In addition, the RTRA changes the procedures for proposing new rules through the 2021 fiscal year. First, state agencies must submit a statement identifying the impact that a new rule would have on individuals and small businesses. Second, agencies must name at least two existing rules to repeal or simplify or they must give reasons why existing rules cannot be simplified or removed. This requirement is similar to President Donald Trump’s Executive Order 13771, which requires federal agencies to eliminate two old regulations for every new regulation they issue.
 


U.S. Attorney General reverses 2005 decision, making some detained asylum seekers ineligible for release on bond

Attorney General William Barr overruled a 2005 decision by the Board of Immigration Appeals (BIA) that had allowed some aliens to post bond and leave detention after establishing a credible fear of persecution or torture. Barr’s decision, issued on April 16, 2019, held that the Immigration and Nationality Act (INA) and subsequent regulations required the Department of Homeland Security (DHS) to detain those individuals transferred from expedited to full proceedings unless the secretary of DHS grants temporary parole.
 
When aliens face expedited removal proceedings, DHS enforcement officers are in charge of removing them from the country and those individuals are usually kept in detention until removed. If a detained individual facing expedited removal makes a credible case that he or she will face persecution or torture if sent back to their country of origin, then they are transferred to receive full removal proceedings, which means an immigration judge will decide their case. Barr’s decision denied that aliens transferred from expedited to full proceedings were eligible for release on bond. He argued that the law gives the secretary of DHS the discretion to grant temporary parole for asylum seekers if there is an urgent humanitarian reason like a serious medical condition.
 
At the request of DHS, Barr agreed to delay the effective date of his decision for 90 days because the agency said his ruling would have an immediate, significant impact on detention operations. The case Barr overruled had made a large population of aliens eligible for release on bond. Under Barr’s ruling, this transferred group of asylum seekers will remain in detention while they wait for immigration judges to review their cases. It can take months or even years for immigration judges to decide a given case.
 
The BIA is a 21-member administrative body within the Executive Office for Immigration Review at the U.S. Department of Justice (DOJ). It is responsible for interpreting and applying immigration laws and hearing appeals in immigration cases decided by immigration judges and DHS officials, who are bound by the decisions of the BIA unless the U.S. attorney general or a federal court intervenes. An immigration judge is a kind of administrative judge who presides over special adjudication proceedings involving immigration, including removal decisions.
 
You can read Barr’s decision here: https://www.justice.gov/eoir/file/1154747/download
 


New memo outlines White House review of independent agencies and guidance documents

The White House may soon exercise more oversight of independent agencies like the Federal Reserve Board and the Securities and Exchange Commission (SEC). An April 11 guidance memo published by the acting director of the Office of Management and Budget (OMB) establishes rules for compliance with the Congressional Review Act (CRA). It amends earlier OMB guidance for implementing the CRA published in 1999 to affirm that Office of Information and Regulatory Affairs (OIRA) review procedures apply to historically independent agencies. It also states that some guidance documents fall within the definition of rules subject to the CRA.
 
The CRA is a 1996 law that requires agencies to submit rules to Congress before they go into effect. The law allows Congress to pass a joint resolution of disapproval to block a rule. If the president signs the resolution, then the agency rule is void and the agency cannot make a similar rule in the future without explicit congressional authorization.
 
The guidance memo tells agencies not to publish any rules in the Federal Register or anywhere else until both OIRA determines whether the rule is major and the agency has complied with the CRA.
 
The CRA defines major rules as those that have or are likely to have the following features:
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, industries, government agencies, or geographic regions
  • Significant adverse effects on competition, employment, investment, productivity, innovation, or foreign trade competition
The memo affirms the broad scope of the CRA over administrative rules. Under Executive Order 12866, agencies have to submit any significant regulatory actions to OIRA for review. However, agencies do not submit all CRA-covered actions to OIRA. In addition to notice-and-comment rules, the new OMB memo says that agencies have to submit statements of policy and interpretive rules to OIRA and Congress. That includes guidance documents, which agencies often fail to submit for CRA review. The memo requires agencies to include a CRA compliance statement in the body of new rules, giving Congress notice that OIRA determined whether the rule was major.
 


Federal judge: Association health plan expansion challenged during Chevron two-step

A federal judge threw out a Trump administration rule designed to expand association health plans (AHP). The Department of Labor (DOL) rule allowed self-employed people to join associations that provided group health insurance plans like those offered by employers. United States District Court Judge John Bates’ 43-page opinion, issued on March 28th, said that the DOL rule used an unreasonable interpretation of federal law that he must set aside under the Administrative Procedure Act (APA) and the Chevron doctrine.
 
The Chevron doctrine is a two-step framework that compels federal judges to defer to agency interpretations of laws in some cases. When judges review agency interpretations of law under Chevron they must first determine whether the law was clear. If the law is ambiguous, then the judge will defer to the agency interpretation unless it is unreasonable. The APA requires judges to invalidate agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
 
In this case, Judge Bates held that the DOL rule was designed as an end-run around the Affordable Care Act (ACA) that ignored the language and purpose of both the ACA and the Employee Retirement Income Security Act of 1974 (ERISA).
 
Bates held that ERISA defined employer in an ambiguous way, but that the DOL rule’s definition was unreasonable. He wrote that the DOL rule failed at Chevron step two because its definition of employer stretched beyond the limits of ERISA in an unlawful way. He held that Congress did not intend for ERISA to regulate commercial healthcare insurance providers directly or to expand citizen access to healthcare benefits outside of employment relationships. He held that the DOL rule also contradicted the Affordable Care Act. He said Congress did not intend “that fifty-one distinct individuals employing no others could exempt themselves from the individual market’s requirements by loosely affiliating through a so-called ‘bona fide association’ without real employment ties.”
 


Arizona becomes the first state to recognize out-of-state occupational licenses

A new Arizona law directs state regulatory agencies to issue licenses or certifications for new residents who were already licensed in their previous state. The law allows people who move to Arizona to continue working in their career field without having to attend state-specific training. For example, licensed nurses in Texas would not have to go through a new process to become recertified as nurses in Arizona before moving and working in an Arizona hospital.
 
The law lists requirements for new residents seeking Arizona licenses to work in regulated fields. The law requires applicants to have a current certification in the same discipline in another state and have no record of disciplinary action or of the loss of a license in another state.
 
In his 2019 State of the State Address, Arizona Governor Doug Ducey argued in favor of the law saying, “100,000 people will move here this year. There’s a job available for every one of them. Lots of them are trained and certified in other states. Standing in their way of earning a living in Arizona, our own licensing boards, and their cronies […] And before those unelected boards feign outrage – let’s remember: workers don’t lose their skills simply because they move to Arizona.”
 
Opponents of the law, like the National Board of Certified Counselors, argued, “Although the intent is to make it easier to work in Arizona, such legislation potentially exposes the public to mental health providers who have not met the minimum qualifications to practice in the state.”
 


SCOTUS rejects a challenge to expert testimony

Biestek v. Berryhill asked whether agency experts must provide data supporting their testimony during benefits hearings. On April 1st, the U.S. Supreme Court ruled, “not categorically.” The court held that reviewing courts could uphold agency decisions even when experts withhold requested data.
 
Justice Elena Kagan, writing for a 6-3 majority, argued that a blanket rule against experts refusing to reveal data used to support their conclusions would be too broad. She held that reviewing courts should adopt a case-by-case approach. Justice Neil Gorsuch, in a dissent joined by Justice Ruth Bader Ginsburg, argued that agency experts should provide support for their allegations when asked.
 
When the Social Security Administration (SSA) decides whether to award disability benefits to applicants, it follows an informal adjudication process laid out in the Social Security Act of 1935. SSA administrative law judges (ALJs) conduct hearings to determine whether the agency should accept or reject disability claims. If someone challenges an SSA benefits decision in court, judges will uphold the agency’s factual determinations if a reasonable person would accept that the supporting evidence was adequate.
 
Courts reviewing factual determinations made by the SSA have to make sure the agency based its decisions on substantial evidence. Court precedent defines substantial evidence as that which a reasonable mind would accept as supporting a conclusion.
 
In this case, Michael Biestek went before an SSA ALJ for a hearing to see if there was any work he could perform with his disabilities. A vocational expert working for the SSA testified that there were hundreds of thousands of jobs available for someone like Biestek. The ALJ did not require the expert to share the surveys she used to make her assessment when Biestek’s lawyer asked to see them. Based on the expert testimony, the ALJ rejected part of Biestek’s disability application. Biestek challenged the partial denial of benefits, saying that the expert’s refusal to share her data meant that her testimony fell short of the substantial evidence standard.
 
Justice Kagan held that expert testimony alone is usually enough to qualify as substantial evidence. She did not support rejecting expert testimony in all cases where the agency expert refuses to divulge the underlying data. Justice Sonia Sotomayor wrote a dissenting opinion, arguing that the SSA had the burden of proof to show that Biestek had work opportunities. Justice Gorsuch wrote a separate dissenting opinion, arguing that “The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decisionmaking [….] Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice.”
 


SCOTUS weighs the expertise of agencies and courts during oral argument for Kisor v. Wilkie

During oral argument on March 27, 2019, for Kisor v. Wilkie, Justice Stephen Breyer said overturning Auer deference “sounds like the greatest judicial power grab since Marbury v. Madison.” He argued that, without Auer, judges could make decisions best left to experts in executive agencies. Justice Neil Gorsuch held a different view, arguing that federal law requires independent judges to decide all questions of law. Gorsuch said the promise of independent judges seemed to him “a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran” facing an agency in court.
 
The case involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA) over whether he should receive retroactive disability benefits for PTSD he developed during the Vietnam War. The VA denied Kisor’s initial disability claim in 1983 and granted him benefits in 2006. At issue is the VA’s interpretation of whether certain records were relevant to its decision to grant Kisor benefits with an effective date in 2006 instead of 1983. The U.S. Supreme Court will decide whether to defer to the expertise of the VA or to apply their own view of what the VA regulation means.
 


U.S. Supreme Court rejects requests to pause ATF rule banning bump stocks

A new rule banning bump stocks will remain in force while critics challenge it in court. The U.S. Supreme Court rejected two requests to pause the ban while lower courts decide pending cases. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) bump stock rule went into effect on March 26. It requires owners of bump stock devices to destroy them or surrender them to the ATF. Bump stock owners who do not comply could face up to 10 years in prison and a $250,000 fine.
 
The ATF rule followed a February 2018 presidential memorandum signed by President Trump. The memorandum told the attorney general to propose a rule banning devices that turn legal weapons into machine guns. He signed the memorandum in response to the 2017 Las Vegas shooting where a gunman killed 58 and wounded hundreds more.
 
On March 25, the D.C. Circuit issued a stay for members of gun rights groups involved in a lawsuit before the court. That means the rule will not apply to members of the groups until the court decides their case. The 10th Circuit issued a stay for Clark Aposhian, a gun rights lobbyist challenging the ban with the New Civil Liberties Alliance.
 
Bump stocks are a firearm accessory that makes it easier to shoot faster. Supporters of the ban say that the rule protects members of law enforcement and the public from mass shooters. Opponents say agencies like the ATF do not have the constitutional authority to ban bump stocks by redefining legal terms. They argue that only Congress may write criminal laws.
 
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U.S. Supreme Court to reconsider judicial deference to agency interpretations of regulations

The U.S. Supreme Court will soon decide whether courts should still defer to agency interpretations of their own ambiguous regulations. Under Auer deference, courts uphold agency interpretations of ambiguous regulations unless they are plainly erroneous or inconsistent. Supporters of Auer deference see Kisor v. Wilkie as a threat to the foundation of American administrative law while opponents see the case as an opportunity to restore separation of powers principles.
 
The case is scheduled for oral argument on March 27, 2019.
 
Auer deference refers to federal courts yielding to agency interpretations of ambiguous regulations made by that agency. The practice comes from precedents established by two U.S. Supreme Court decisions: Bowles v. Seminole Rock & Sand Co (1945) and Auer v. Robbins (1997).
 
In Kisor, the court will decide whether to overrule those precedents. The case involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA) over whether he should receive retroactive disability benefits for PTSD he developed during the Vietnam War. The VA denied Kisor’s initial disability claim in 1983 and granted him benefits in 2006. At issue is the VA’s interpretation of whether certain records were relevant to its decision to grant Kisor benefits with an effective date in 2006 instead of 1983.
 


U.S. House passes the Federal Register Modernization Act

The U.S. House passed a bill that would change printing requirements for the Federal Register. The Federal Register is a legal newspaper published every federal business day by the National Archives and Records Administration (NARA) and the Government Publishing Office (GPO). The Federal Register lists new administrative agency rules and regulations in addition to policy statements and interpretations of existing rules. It also contains presidential documents (such as executive orders) and notices for public hearings, grant applications, and administrative orders.
 
The Federal Register Modernization Act passed the House by a 426 to one vote on March 12, 2019. The bill requires that the Federal Register be published, but not necessarily in print form with duplicate copies of each particular document. In times when the GPO cannot print the Federal Register as usual, the bill allows it to publish the Federal Register on a website. The bill also requires a time stamp for each document in the Federal Register showing when the GPO made them available for public inspection.


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