Author

Jace Lington

Jace Lington is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

U.S. Supreme Court to hear case about 2019 DHS immigration rule expanding definition of public charge

On February 22, the U.S. Supreme Court agreed to hear Department of Homeland Security v. New York, a case about whether the U.S. Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) and federal immigration law when it issued a 2019 rule expanding the definition of those the agency would consider to be a public charge

When DHS classifies someone as likely to become a public charge, the agency gains ground to deny that person entry into the United States or deny them legal permanent resident status. Opponents of the rule argue that it violated the Administrative Procedure Act (APA) by failing the arbitrary-or-capricious test, which instructs courts reviewing agency actions to invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

DHS defends the rule, arguing that it was within the agency’s broad authority to decide questions of immigration policy. DHS also argued that the states, city, and nonprofit organizations who challenged the rule did not have legal standing to file a lawsuit under the APA.

The U.S. Supreme Court is set to schedule oral argument in the case during its October 2021-2022 term. However, Adam Liptak, writing for _The New York Times_, argued that the case might become moot before the court makes a decision. President Joe Biden (D) has called for review of the DHS rule and may direct the agency to repeal it. If DHS reverses the rule, there may no longer be a live case for the court to resolve.

To learn more about the case or the Administrative Procedure Act see here:

https://ballotpedia.org/Department_of_Homeland_Security_v._New_York

https://ballotpedia.org/Administrative_Procedure_Act

Additional Reading:

Liptak article:



Easter deadline to use Congressional Review Act to repeal end-of-term Trump administration regulatory activity

A recent edition of the Congressional Record clarified that Congress has 60 days from February 3, 2021, to use the Congressional Review Act (CRA) to block regulatory activity taken near the end of the Trump administration.

The Congressional Review Act is a federal law passed in 1996 that creates a 60 day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule.

The law defines days under the CRA as days where Congress is in continuous session, so the estimated deadline to block any end-of-term regulatory activity from the Trump administration is April 4, 2021, Easter Sunday. That date could move later into April if either chamber of Congress adjourns for longer than three days before then.

Since the law’s creation in 1996, Congress has used the CRA to repeal 17 rules published in the Federal Register. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of the his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. Congress ultimately repealed 16 rules in total using the CRA during the Trump administration.

To learn more about the Congressional Review Act and its use, see here: https://ballotpedia.org/Congressional_Review_Act

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act: https://ballotpedia.org/Journey:_Congressional_Review_Act

Additional reading:

Text of the Congressional Review Act:

https://www.law.cornell.edu/uscode/text/5/801

Text of the _Congressional Record_:

https://www.govinfo.gov/content/pkg/CREC-2021-02-03/pdf/CREC-2021-02-03-house.pdf

GW’s Daniel Pérez Estimate:

https://regulatorystudies.columbian.gwu.edu/congressional-review-act



Differing deference views in FDA abortion pill case

On January 12, the U.S. Supreme Court temporarily restored restrictions implemented by the U.S. Food and Drug Administration (FDA) governing the dispensation of an abortion-inducing pill. A district court had ordered the FDA to loosen restrictions on the drug because, in its view, the COVID-19 pandemic made it more difficult for women to access the pills.

In a concurring opinion attached to the court’s action, Chief Justice Roberts argued that the district court should have given judicial deference to the FDA’s judgment about how to adjust its rules during the pandemic. 

He wrote, “Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’”

Justice Sotomayor wrote a dissenting opinion, joined by Justice Elena Kagan, agreeing with Roberts that “deference is due to reasoned decisions of public health officials grappling with a deadly pandemic.” However, she wrote that “the record here is bereft of any reasoning [… and there] simply is no reasoned decision here to which this Court can defer.”   

Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. It refers to when a federal court yields to an agency’s interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. In other words, when a law or regulation is challenged in court, the agency’s interpretation is upheld if it is considered to be reasonable, even if the court would prefer a different interpretation.

To learn more about judicial deference or federal responses to the COVID-19 pandemic, see the links below.

To read the full text of the decision, click here.

Additional reading:



Colorado Supreme Court rules that state board must defer to disciplinary actions taken by other state agencies

Photo of Colorado State Supreme Court building

On Dec. 21, the Colorado Supreme Court ruled in DOC v. Stiles that the Colorado State Personnel Board (Board) must defer to disciplinary decisions made by state agencies. The court’s decision aimed to shed light on the standard the Board must apply when reviewing other state agencies’ disciplinary decisions. 

The court held that when the Board considers appeals of decisions to discipline agency employees, they must apply the “arbitrary, capricious, or contrary to rule or law” standard instead of reviewing the facts of the case on a de novo basis. 

The arbitrary or capricious standard instructs the Board to give deference to the disciplinary action taken by the state agency. It prevents the Board from overturning such actions unless the agency failed to give honest consideration to the evidence involved in the case or violated a law or rule. De novo review would allow the Board to evaluate the evidence in the case and make its own decision without regard for the earlier conclusions made by the state agency that decided to discipline an employee.

The court remanded the case back to the state administrative law judge (ALJ), working for the Board, who had overruled the state agency disciplinary action at issue in the case. 

In the opening paragraph of the opinion announcing the decision, Justice Carlos Samour wrote about the stakes of the case in the following way: “At a micro level, it will affect whether Mathew Mark Stiles keeps his job at the Department of Corrections (“DOC”). At a macro level, it will affect the 30,000-plus other certified state employees in Colorado’s personnel system.”

The standard articulated by the Colorado Supreme Court is similar to the arbitrary-or-capricious test established by the federal Administrative Procedure Act. Under that test, courts reviewing agency actions invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

To learn more about state administrative law judges or judicial deference, see here:

Additional reading:

Text of the decision:



Four new Kentucky bills would limit the governor’s emergency powers

On Jan. 7, the Kentucky State House and Senate passed four pieces of legislation aimed at limiting the emergency powers of the state governor.  

The first bill, House Bill 1, would allow any businesses, schools, or associations to remain open as long as their operating plans meet or exceed guidance issued by the federal Centers for Disease Control and Prevention (CDC). The bill aims to override restrictions placed on businesses and other groups by Governor Beshear (D) in response to the coronavirus pandemic. It passed in the House with 70 votes in favor and 25 opposed.

The second bill, House Bill 5, would limit the authority of the governor to temporarily reorganize administrative agencies and transfer personnel without legislative approval. It passed in the House with 73 votes in favor and 22 opposed.

The third bill, Senate Bill 1, would limit the power of the governor during states of emergency. The bill would sunset after 30 days executive orders issued by the governor related to restrictions on in-person meetings and the functioning of schools, businesses, and churches unless the legislature approves an extension. The bill also allows the state legislature to terminate declarations of emergency at any time. It passed in the Senate with 27 votes in favor and nine opposed.

The final bill, Senate Bill 2, would make it more difficult for the governor to direct state administrative agencies to make emergency regulations without justifying the emergency nature of the situation. The bill defines an emergency situation and requires agencies to demonstrate such emergencies with documentary evidence to receive approval for new regulations from the Administrative Regulation Review Subcommittee. It passed in the Senate with 31 votes in favor and six opposed. 

The General Assembly may override a possible gubernatorial veto with a majority vote in both houses.

To learn more about state responses to the administrative state or the COVID-19 pandemic, see here:

Additional reading:

Text of House Bill 1:

Text of House Bill 5:

Text of Senate Bill 1:

Text of Senate Bill 2:

News report about the bills:

Kentucky legislative procedure:



New bill would require GAO to send Congress a report on major midnight regulations

On December 14, Representative Gerald Connolly (D-Va.) introduced the Midnight Regulations Review Act in the U.S. House of Representatives. The bill would require the Government Accountability Office (GAO) to send Congress a report about major regulations made by outgoing presidents just before the transition to a new administration.

The bill defines major rules as those that would have an annual economic effect of $100,000,000 or more, would cause major cost increases for consumers, industries, or government agencies, or would have significant adverse effects on competition, employment, investment, productivity, innovation, or trade.

The bill requires the GAO to send the report to Congress within five weeks after a new president has been inaugurated. The report must identify any new major rules that Congress could block using the Congressional Review Act (CRA). 

Under the CRA, Congress has a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, Congress has used it to repeal 17 out of the over 90,767 rules published in the Federal Register during that time. Congress blocked 16 of those rules at the beginning of the Trump administration as it reviewed rules made by agencies at the end of the Obama administration.

Debates about midnight rulemaking or midnight regulations refer to the informal rules that federal agencies adopt at the end of presidential administrations. Scholars have found that since 1948 agencies have made rules at a higher rate between election day in November and inauguration day the following January. Concerns about the quality of midnight regulations have led presidents, starting with Ronald Reagan (R), to issue regulatory freezes at the beginning of their administrations.

Connolly’s bill had four Democratic party cosponsors as of December 18: Carolyn Maloney (N.Y.), Raja Krishamoorthi (Ill.), Jackie Speier (Calif.), and Eleanor Holmes Norton (D.C.).

Additional reading:



Florida Administrative Commission appoints new chief administrative law judge

On December 15, the Florida Administrative Commission, composed of the governor and cabinet, appointed Pete Antonacci to serve as chief administrative law judge (ALJ) of the Florida Division of Administrative Hearings (DOAH).

As chief administrative law judge, Antonacci will manage 31 administrative law judges within the DOAH as they oversee challenges to state agency rules. 

State ALJ operations vary by state. While some states mirror the federal ALJ structure by allowing state agencies to maintain a roster of state ALJs, 28 states, including Florida, operate a central panel of ALJs who are assigned to agencies as needed. 

Additional reading:



U.S. Supreme Court hears oral argument in case about presidential control of independent agencies

Banner with the words "The Administrative State Project"

On December 9, the U.S. Supreme Court heard oral argument in Collins v. Mnuchin, a case about the extent of the president’s appointment and removal powers and control of independent federal agencies. The U.S. Supreme Court will decide whether restrictions Congress placed on the ability of the president to remove the director of the Federal Housing Finance Agency (FHFA) amount to an unconstitutional violation of separation of powers principles.

Opponents of the structure of the FHFA argue that Congress interfered with the power of the executive branch to control the agency when it gave the director removal protections.

Supporters of the structure of the FHFA argue that the U.S. Constitution, in their view, allows Congress to insulate some agencies from direct presidential control.

In June, the U.S. Supreme Court decided a similar case, Seila Law v. Consumer Financial Protection Bureau, ruling 5-4 that the removal protections given to the director of the Consumer Financial Protection Bureau were unconstitutional.

Additional reading:



U.S. Supreme Court agrees to hear case challenging HHS approval of state work requirements for Medicaid beneficiaries

Banner with the words "The Administrative State Project"

On December 4, the U.S. Supreme Court agreed to hear a case involving agency approval of work requirements for state Medicaid beneficiaries. In Azar v. Gresham, the court will decide whether the Medicaid statute empowers the secretary of the U.S. Department of Health and Human Services (HHS) to approve state plans to use work requirements to encourage Medicaid beneficiaries to find alternative healthcare coverage.

In 2018, HHS began approving state requests for waivers from Medicaid requirements so those states could test plans that require certain Medicaid beneficiaries to work or pursue job-training to remain enrolled in the program. States argued that such plans would help beneficiaries find employer-sponsored health insurance or get individual plans from a state exchange. With people moving off of Medicaid, states argued that their Medicaid programs would have more resources to help people who cannot afford healthcare coverage on their own.

The U.S. District Court for the District of Columbia blocked HHS from approving state plans in Arkansas and New Hampshire. The court held that HHS failed to consider the core objective of Medicaid, providing healthcare coverage to the needy, when it approved the state work requirement plans. 

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the decision of the district court. The court held that HHS focused on alternative goals that go beyond what the agency may consider when deciding whether to grant a waiver from Medicaid requirements. The court ruled that HHS failed the Administrative Procedure Act’s arbitrary-or-capricious test, which requires courts to invalidate agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

In cases where courts find that agencies violate legal requirements, they do not grant judicial deference to those agency actions. Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Judicial deference to administrative agencies is a principle of judicial review that applies when a court yields to an agency’s interpretation of either a statute or regulation promulgated by the agency.

Additional reading:



President Trump executive order outlines use of artificial intelligence by federal agencies

On December 3, Donald Trump signed an executive order that aims to promote the use of artificial intelligence (AI) by federal agencies while protecting public trust and upholding the law. The order directs the Director of the Office of Management and Budget to post a roadmap for future policy guidance about AI consistent with the principles of the order.

Guidance documents clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules issued through one of the rulemaking processes of the Administrative Procedure Act.

The order directs federal agencies adopting AI to adhere to the following framework:

1. Agencies should design, acquire, and use AI in ways that respect national values and that remain consistent with the U.S. Constitution and other laws and regulations (including those involving privacy, civil rights, and civil liberties)

2. Agencies should only use AI in situations where the benefits significantly outweigh the risks and the risks can be measured and managed

3. Agencies should use AI for the cases regarding which the AI was trained and make sure the AI is accurate, reliable, and effective

4. Agencies should make sure AI is safe, secure, and resilient in the face of attacks. Agencies should make sure AI operations and outcomes are understandable by experts, users, and others as needed

5. Agencies should make sure that human responsibilities regarding AI are clear and that all operations are well-documented and traceable to the extent practicable

6. Agencies should make sure their AI applications are tested regularly to ensure compliance with these principles and consistent performance 

7. Agencies should be transparent about disclosing relevant information about the use of AI

8. Agencies should be accountable for implementing and enforcing safeguards regarding the use of AI and document compliance with those safeguards

The order also directs each federal agency to identify and share non-classified uses of AI by the agency and determine what changes they must make to comply with the order. Finally, the order directs the General Services Administration to attract industry and academic experts to help agencies develop AI systems.

To learn more about executive orders or guidance, see here:

Additional reading:

Text of the executive order: