Author

Jace Lington

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

U.S. House passes CRA resolution to block Department of Education student loan rule

The U.S. House of Representatives voted 231 to 180 on January 16 to pass a resolution under the Congressional Review Act (CRA) to block a final rule related to government forgiveness of certain student loan debt. Two hundred and twenty-five Democrats and six Republicans voted to pass the resolution while 179 Republicans and Justin Amash (I-Mich.) voted nay.

The Department of Education (DOE) issued the 146-page rule in September 2019. The rule changed the process students must follow to discharge their loans and empowered the agency to collect money from schools to cover financial losses following successful student challenges. Education Secretary Betsy DeVos argued in a December press release that the new rule “ensures that taxpayers who did not go to college or who faithfully paid off their student loans do not shoulder student loan costs for those who didn’t suffer harm.”

U.S. Senate Minority Whip Dick Durbin (D.-Ill.) argued after the U.S. House passed the CRA resolution that the DOE rule “guts essential protections for student borrowers and taxpayers.” He sponsored an identical CRA resolution in the U.S. Senate in September 2019. That resolution has attracted 40 Democratic cosponsors and the two Independent U.S. senators.

The CRA resolution must pass both houses of Congress and receive President Trump’s signature to repeal the rule.

The CRA gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register since the law’s creation in 1996.

To learn more about the Congressional Review Act and its use, click here.

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act by clicking here.

Additional reading:
Final rule
Rulemaking
Federal Register
Betsy DeVos
U.S. Department of Education

Click here to see the roll call vote.

Click here to see the text of the DOE rule.



Lawsuit claims new SNAP work requirements are unlawful

A group of states, the District of Columbia, and New York City filed a lawsuit on January 16 against the U.S. Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. The lawsuit argues that a December 2019 rule violated federal law and arbitrarily reversed decades of policies governing when states could seek waivers from Supplemental Nutrition Assistance Program (SNAP) work requirements.

The plaintiffs asked the court to apply the Administrative Procedure Act’s (APA) arbitrary-or-capricious test to block the USDA from implementing the rule. Under that test, courts reviewing agency actions must throw out any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The plaintiffs also argued that the USDA failed to allow stakeholders to comment on the rule during the planning process—a potential violation of informal rulemaking requirements.

The USDA rule grants state waivers to SNAP work requirements for able-bodied adults without dependents only if the unemployment rate is higher than six percent. In the past, the USDA granted waivers to states with areas of average unemployment 20 percent above the national average. The rule also prevents states from combining areas of high and low unemployment to receive waivers for larger geographic areas.

The USDA proposed the rule in response to President Trump’s Executive Order 13828, which directed agencies to strengthen work requirements for work-capable individuals receiving benefits from public assistance programs. The executive order instructed agencies to review regulations and guidance documents to see whether they increased self-sufficiency, well-being, and economic mobility.

To learn more about the Administrative Procedure Act or the arbitrary-or-capricious test, click here.

https://ag.ny.gov/sites/default/files/2020-01-16_complaint_-_snap_-_filed.pdfClick here to learn more.

Additional reading:
United States District Court for the District of Columbia
U.S. Department of Agriculture
Informal rulemaking 
Executive order
Rulemaking

Click here to view the lawsuit.

Click here to see the rule in the Federal Register.



D.C. Circuit directs district court to reconsider legality of USDA inaction

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on January 10 unanimously ruled that a district court must reconsider a lawsuit arguing that the U.S. Department of Agriculture (USDA) violated the Administrative Procedure Act (APA).

The American Anti-Vivisection Society and the Avian Welfare Coalition sued the USDA in an attempt to compel the agency to either issue bird handling standards or apply general standards for the humane treatment of animals to birds. Congress amended the Animal Welfare Act (AWA) in 2002 to protect birds and required the USDA to set standards for the animals’ humane treatment, but the agency failed to issue the standards.

The animal rights groups argued that the USDA violated the APA’s arbitrary-or-capricious test as well as its prohibition against withheld or delayed actions by failing to publish standards for birds. The arbitrary-or-capricious test requires that courts reviewing agency actions throw out any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

The D.C. Circuit panel agreed with the district court that the arbitrary-or-capricious challenge failed because the USDA had not yet taken final action regarding the treatment of birds under the AWA. However, the D.C. Circuit reversed the district court’s dismissal of the additional APA challenge, holding that the district court must now consider whether the USDA unreasonably delayed issuing standards for the protection of birds.

Judge David Tatel, a Bill Clinton appointee, wrote the panel opinion. Judges Cornelia T. L. Pillard and Robert Leon Wilkins, Barack Obama appointees, joined in the opinion.

Click here to learn more about the APA.
Click here to learn more about the arbitrary-or-capricious test.

Additional reading:
U.S. Department of Agriculture 
D.C. Circuit 
United States District Court for the District of Columbia 
David Tatel
Cornelia T. L. Pillard
Robert Leon Wilkins

Click here to read the D.C. Circuit’s decision.



U.S. Senate confirms Paul Ray as head of federal regulatory review agency

The United States Senate on January 9 voted 50-44 to confirm Paul Ray as administrator of the Office of Information and Regulatory Affairs (OIRA).

OIRA is a federal agency located within the Office of Management and Budget (OMB) that reviews regulations, approves government information requests, and provides oversight of statistical and privacy policies. OIRA gives presidents the ability to monitor agency rulemaking.

50 Republicans voted to confirm Ray, while 43 Democrats and Independent Angus King (Maine) voted nay. Six senators did not vote: Lamar Alexander (R-Tenn.), Cory Booker (D-N.J.), Jerry Moran (R.-Kan.), David Perdue (R-Ga.) Bernie Sanders (D-Vt.), and Elizabeth Warren (D-Mass.).

Click here to learn more about OIRA.

Click here to learn more about OMB.

Additional reading:
Presidential Executive Order 12866
Regulatory review
Regulatory impact analysis

Click here to view the roll call vote:



D.C. Circuit rejects APA challenge to e-cigarette regulation

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on December 10 unanimously rejected an Administrative Procedure Act (APA) challenge to the Food and Drug Administration’s (FDA) process for approving new e-cigarette products. An e-cigarette manufacturer joined with an e-cigarette advocacy group to sue the FDA, arguing that the agency violated the APA by not providing an easier pathway for new e-cigarette products to be approved for marketing and sale.

The court ruled that requiring companies to show that selling an e-cigarette product was consistent with public health did not fail the APA’s arbitrary-or-capricious test, which instructs courts reviewing agency actions to invalidate those they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The judges argued in the opinion that the plaintiffs’ “wholesale objection is to Congress’ design, not to any arbitrariness on the FDA’s part in carrying it out.”

Judge Cornelia T.L. Pillard, and Obama appointee, wrote the opinion for the D.C. Circuit panel. The other judges on the panel were Judith Rogers, a Clinton appointee, and David Sentelle, a Reagan appointee.

Click here to learn more about the Administrative Procedure Act.
Click here to learn more about the D.C. Circuit.

Additional reading:

Click here to read the full opinion.


Trump OIRA nominee approved by Senate committee; awaits full Senate vote

On December 17, the U.S. Senate Committee on Homeland Security and Governmental Affairs approved Paul Ray, President Trump’s nominee to lead the Office of Information and Regulatory Affairs (OIRA). After approval, Ray’s nomination moved from the committee to await a vote in the full U.S. Senate.

OIRA is a federal agency located within the Office of Management and Budget that reviews regulations, approves government information requests, and provides oversight of statistical and privacy policies. OIRA gives presidents the ability to monitor agency rulemaking. Congress created OIRA in 1980 as part of the Paperwork Reduction Act, which aimed to minimize the information collection burden imposed by administrative agencies.

President Trump nominated Ray to replace Neomi Rao as administrator of OIRA on October 15. Rao joined the U.S. Court of Appeals for the D.C. Circuit in March 2019 and Ray became acting administrator of OIRA at that time. Before leading the agency in an acting capacity, Ray served as associate administrator of OIRA starting in May 2018. Before working for the Trump administration, Ray worked as a clerk for U.S. Supreme Court Justice Samuel Alito and worked as an attorney specializing in administrative law.

To learn more about the Office of Information and Regulatory Affairs or the Office of Management and Budget, see here:

Additional reading:


Resolution aims to block new SNAP program work requirements

A resolution introduced under the Congressional Review Act (CRA) in the U.S. House of Representatives on December 6 aims to block a new rule governing Supplemental Nutrition Assistance Program (SNAP) work requirement waivers.

 

The new rule grants waivers to SNAP work requirements for able-bodied adults without dependents (ABAWD) only if the unemployment rate is higher than six percent. In the past, the U.S. Department of Agriculture granted waivers to states with areas of average unemployment 20 percent above the national average. The rule also prevents states from combining areas of high and low unemployment to receive waivers for larger geographic areas.

 

Representative Rosa DeLauro (D-Conn.) sponsored the resolution against the new rule and gained 105 Democratic cosponsors as of December 13. Under the CRA, the resolution would need to pass both houses of Congress and receive President Trump’s signature to repeal the guidance.

 

The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, 17 out of the over 90,767 rules published in the Federal Register during that time have been repealed using the CRA.

 

To learn more about the Congressional Review Act and its use, click here.

 

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act:

 

Additional reading:

 

Link to the resolution:

 

Link to the rule in the Federal Register:


U.S. Supreme Court to review truncated immigration enforcement procedures

The U.S. Supreme Court will decide a case next year that may restrict the ability of the executive branch to use expedited procedures in some asylum cases. At issue is whether asylum seekers may challenge the procedures used by immigration officials to deny an asylum application.
In Department of Homeland Security (DHS) v. Thuraissigiam, the U.S. Supreme Court will review a decision by the 9th Circuit Court of Appeals that allowed a man to challenge in court the expedited procedures that an immigration judge and other executive branch officials used to deny his asylum application.
DHS argues that people who apply to enter and stay in the United States are only entitled to the procedural rights Congress grants to them. The agency also argued that the administrative procedures followed by officials in this case were adequate. Thuraissigiam’s lawyers disagreed, arguing that expedited removal procedures “drastically limit the administrative and judicial review that is ordinarily available.”
Allowing Thuraissigiam to sue in court “hinders the Trump administration’s desire to more quickly deport undocumented immigrants after their requests for asylum have been denied,” according to reporter Robert Barnes writing for The Washington Post. “If full habeas review does not cover expedited-removal cases, ICE agents may soon be able to seize immigrants anywhere in the U.S. and hustle them out of the country without any meaningful procedures,” according to writer Garrett Epps at The Atlantic, discussing the potential impact of the case.
The U.S. Supreme Court is scheduled to hear oral argument in this case on March 2, 2020.
To learn more about the case and adjudication in the administrative state, click here.


Governor Brad Little says Idaho is the least-regulated state in the nation

Idaho Governor Brad Little says that Idaho became “the least-regulated state in the country by cutting and simplifying 75 percent of regulatory rules in one year,” according to a press release from the governor’s office.
In April of 2019, the Idaho State Legislature failed to pass legislation that would have reauthorized administrative rules in the state—essentially repealing the state’s entire regulatory code.
Governor Little subsequently announced a goal to simplify up to 60 percent of the state’s regulations by the end of 2019. He said he directed agencies to get rid of duplication and not to change fundamental policies.
Little said that since January he has worked with the state legislature to cut 1,804 pages from the administrative code. He calculated that for every chapter he and the legislature added to the code they cut another 83 chapters.
Click here to learn more.


U.S. Supreme Court sets argument dates for three administrative state cases

On November 26, the U.S. Supreme Court released its upcoming argument calendar, which included dates it will hear oral argument in three upcoming cases related to the administrative state.
 
On March 2, 2020, the court will hear Department of Homeland Security v. Thuraissigiam, which involves the question of when asylum seekers may challenge in traditional courts of law the decisions made during administrative agency adjudication hearings.
 
The court will hear two cases on March 3. In Seila Law v. Consumer Financial Protection Bureau, at issue is whether the structure of the Consumer Financial Protection Bureau violates the separation of powers. In Liu v. Securities and Exchange Commission, the court will decide the limits of the Securities and Exchange Commission’s enforcement powers.
 


Bitnami