Author

Jace Lington

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

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

The U.S. Senate voted 53 to 42 on March 11 to pass a resolution under the Congressional Review Act (CRA) to block a final rule related to government forgiveness of certain student loan debt.

42 Democrats, 10 Republicans, and Angus King (I-Maine) voted to pass the resolution while 42 Republicans voted nay. The U.S. House passed a resolution to block the rule on January 16, 2020.

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 2019 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.), who sponsored the Senate version of the resolution, argued that the DOE rule “guts essential protections for student borrowers and taxpayers.”

The CRA resolution has to 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. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

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

Additional reading:
Final rule
Rulemaking
Federal Register
Betsy DeVos
U.S. House passes CRA resolution to block Department of Education student loan rule (2020)

Link to the roll call vote:
https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=116&session=2&vote=00070
Text of the DOE rule:
https://www.govinfo.gov/content/pkg/FR-2019-09-23/pdf/2019-19309.pdf#page=1



U.S. Supreme Court allows Trump administration to return asylum-seekers to Mexico for processing

The U.S. Supreme Court ruled March 11 to allow the Trump administration to have some asylum-seekers wait in Mexico while U.S. officials process their claims. The ruling in _Wolf v. Innovation Law Lab_ allows immigration personnel to follow the Migrant Protection Protocols (MPP), called the “Remain in Mexico” policy, while challenges to the policy work through the lower courts.

The decision lifted a preliminary injunction issued on April 8, 2019, by Judge Richard Seeborg, an Obama appointee serving on the United States District Court for the Northern District of California. Seeborg ruled that the remain in Mexico policy violated federal regulatory requirements and federal immigration law.

In the application for a stay of the 2019 injunction, U.S. Solicitor General Noel Francisco argued that the remain in Mexico policy “has been an enormously effective and indispensable tool in the United States’ efforts, working cooperatively with Mexico,” to address the large number of people seeking to enter the United States through the Southwest border. He also argued that universal injunctions are improper responses to rules challenged under the Administrative Procedure Act (APA). The APA is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations.

The temporary hold on the injunction lasts until the case comes before the U.S Supreme Court for a final decision. The order said that Justice Sonia Sotomayor would have denied the government’s request for a stay.

To learn more about the U.S. Supreme Court and the Administrative Procedure Act, see here:
Supreme Court of the United States
Administrative Procedure Act

Additional reading:
Federal policy on immigration, 2017-2020
Timeline of federal policy on immigration, 2017-2020
Richard Seeborg
U.S. Citizenship and Immigration Services
United States Court of Appeals for the Ninth Circuit

Link to the U.S. Supreme Court order granting a stay of injunction:
https://www.supremecourt.gov/orders/courtorders/031120zr_19m2.pdf

Link to the request for a stay of the 2019 injunction:
https://www.supremecourt.gov/DocketPDF/19/19A960/137254/20200306100526858_Innovation%20Law%20Lab%20-%20S.Ct.%20Stay%20Application%20-%20FINAL.pdf

Link to the 2019 injunction:
https://www.politico.com/f/?id=00000169-fee3-d8fd-a7e9-ffe314940002

Link to Wolf v. Innovation Law Lab docket information:
https://www.supremecourt.gov/DocketPDF/19/19A960/137254/20200306100540649_Innovation%20Law%20Lab%20Stay%20Application%20Appendix.pdf



Justice Gorsuch argues against deference in criminal cases

Justice Gorsuch released a statement critical of applying Chevron deference to laws involving criminal penalties following the U.S. Supreme Court’s March 2 decision not to hear Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The case challenged the Trump administration’s decision to outlaw bump stocks through regulation.

Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Gorsuch argued that Chevron “has nothing to say about the proper interpretation of the law” at issue in the bump stock case because “whatever else one thinks about Chevron, it has no role to play when liberty is at stake.”

In 2018, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a rule redefining “machine gun” to include bump stocks. The rule expanded the definition of “machine gun” in the Gun Control Act and National Firearms Act to include devices that allow semi-automatic firearms to shoot more than once with a single pull of the trigger using recoil energy to keep firing. Under the rule, owners of bump stock devices must destroy or surrender them or face federal prison time.

Gorsuch agreed with the court’s decision not to take the case, but said that “waiting should not be mistaken for lack of concern.”

To learn more about the bump stock rule change, click here.

To read Gorsuch’s statement, click here.

Additional reading:


Fifth Circuit upholds limits on presidential removal power over CFPB head

A panel of judges on the U.S. Court of Appeals for the Fifth Circuit decided 2-1 to uphold the structure of the Consumer Financial Protection Bureau (CFPB). The court’s March 3 opinion said that the legal restrictions on the president’s authority to remove the head of the agency were “valid and constitutional.”

Judge Stephen Higginson, an Obama appointee, delivered the opinion of the court, saying that “neither the text of the Constitution nor the Supreme Court’s previous decisions” support the argument that the CFPB has an unconstitutional structure.

Judge Patrick Higginbotham, a Reagan appointee, wrote a concurring opinion joined by Higginson, arguing that the president may still exert authority over the CFPB through the Financial Stability Oversight Council, which can veto CFPB rules. He said that the U.S. Supreme Court has approved presidential removal power restrictions similar to those protecting the head of the CFPB.

Judge Jerry Edwin Smith, a Reagan appointee, filed a dissenting opinion, arguing that recent Fifth Circuit precedent suggested that the structure of the CFPB was unconstitutional.

The appointment and removal power refers to the authority of an executive to appoint and remove officials in the various branches. The Appointments Clause of the United States Constitution vests the president with the authority to appoint officers of the United States, including federal judges, ambassadors, and Cabinet-level department heads. The president has the authority to remove his appointees from office, but the heads of independent federal agencies can only be removed for cause.

The Fifth Circuit published its decision on the same day the U.S. Supreme Court heard oral argument in another case challenging the structure of the CFPB,  Seila Law v. Consumer Financial Protection Bureau. A U.S. Supreme Court decision that the U.S. Constitution forbids protecting the director of the CFPB from presidential removal might give the president more control of other leaders of independent administrative agencies. Also, CFPB decisions made under a director with removal protections might become invalid following the ruling.

Click here to read the Fifth Circuit decision and here to learn more about Seila Law v. Consumer Financial Protection Bureau.

Additional reading:


Justice Thomas signals reconsideration of judicial deference doctrine

Justice Clarence Thomas wrote on February 24 that he would reconsider his 2005 Brand X opinion. He made his remarks while dissenting from the U.S. Supreme Court’s decision not to hear Baldwin v. U.S., which challenged Brand X. Thomas argued that Brand X appears to be “inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”

Brand X involved an application of the Chevron deference doctrine. Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Brand X built on Chevron’s foundation by requiring courts to defer to agency interpretations of statutes even when courts previously held contrary views.

Justice Thomas argued that both deference precedents undermined the requirements of the United States Constitution. He wrote, “Regrettably, Brand X has taken this Court to the precipice of administrative absolutism. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations. Brand X may well follow from Chevron, but in so doing, it poignantly lays bare the flaws of our entire executive-deference jurisprudence. Even if the Court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X.”

Click here learn more about Chevron deference, or click here to learn more about the Administrative Procedure Act.

Additional reading:

Link to Justice Thomas’ dissent: https://www.supremecourt.gov/orders/courtorders/022420zor_mjo1.pdf



U.S. Supreme Court allows DHS to enforce public charge rule in Illinois

The U.S. Supreme Court on February 21 voted 5-4 to allow the U.S. Department of Homeland Security (DHS) to enforce in Illinois a rule that allows the federal government to deny immigrants a visa or a green card if they rely on government assistance. The court let DHS enforce the same rule elsewhere in the U.S. following a January 27 order.

DHS issued the final rule detailing how federal agencies determine the inadmissibility of immigrants likely to become public charges (e.g. dependent on government assistance) in August 2019. Five federal judges later issued injunctions blocking the rule from taking effect. Appellate courts lifted three of the injunctions in December 2019, but a nationwide injunction from the U.S. District Court for the Southern District of New York and a statewide injunction from the U.S. District Court for the Northern District of Illinois remained in effect until the January 27 and February 21 orders from the U.S. Supreme Court.

DHS requested that the U.S. Supreme Court stay the statewide injunction issued by Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois. In his October 2019 order, Judge Feinerman held that the DHS rule would impose financial consequences on Cook County. He also held that the county would likely succeed in defending the argument that DHS exceeded its legal authority and acted arbitrarily and capriciously when it made the public charge rule.

The U.S. Supreme Court granted the request for a stay. Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ruled in favor of the stay while Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. Sotomayor filed a dissenting opinion with the order, arguing, “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

The decision allows the rule to take effect nationwide pending a final decision in _Wolf v. Cook County, Ill._ The U.S. Court of Appeals for the Seventh Circuit heard oral argument in the case on February 26.

Click here to learn more about rulemaking, or click here to learn about the related U.S. Supreme Court order.

Additional reading:

Source documents:



U.S. Supreme Court includes birth control case on April argument calendar

A U.S. Supreme Court case scheduled for April 29 could clarify when notice-and-comment procedures satisfy the requirements of the Administrative Procedure Act (APA), allowing individuals to challenge more federal laws and regulations on religious grounds.

The case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , is about whether the Trump administration had the legal authority to issue rules providing a religious or moral exemption to the contraception mandate created under the Affordable Care Act, commonly known as Obamacare.

In a July 2019 ruling, the U.S. Court of Appeals for the Third Circuit upheld a nationwide injunction that blocked the new exemption rules from going into effect. That court held that the U.S. Department of the Treasury, U.S. Department of Labor, Internal Revenue Service, and U.S. Department of Health and Human Services did not have legal permission to modify the contraceptive requirements developed after Obamacare passed. The Third Circuit also held that the agencies violated APA notice-and-comment requirements.

The APA is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions. Under the APA’s informal rulemaking system, agencies must consider written public feedback on proposed rules submitted during a comment period.

Learn more about the case or rulemaking.

Additional reading:


Virginia pilot program aims to reduce regulations

The Virginia General Assembly created a regulatory reduction pilot program in 2018 that aims to cut regulations in two state agencies by 25% before July 1, 2021. Both agencies cut regulations faster than planned, according to a progress report published in October 2019.

Under the program, the Virginia Department of Professional and Occupational Regulation (DPOR) and the Virginia Department of Criminal Justice Services (DCJS) must reduce regulatory requirements and compliance costs by 25% by the 2021 deadline. Both agencies were ahead of the first year goal of eliminating 7.5% of their regulations. The DPOR and DCJS had cut regulations by 9.78% and 10.14%, respectively, as of October 1, 2019.

If the pilot agencies meet the 2021 deadline, the Virginia Secretary of Finance must write a report on the feasibility of adopting a 2-for-1 regulatory budget in the state. Under that budget, state agencies would have to streamline or repeal two existing regulations for every new one they create. President Donald Trump (R) issued a similar executive order at the federal level in January 2017. Executive Order 13771 included a requirement that agencies eliminate two old regulations for each new regulation issued.

Virginia Delegate Michael Webert (R) and Virginia Senator Amanda Chase (R) sponsored the legislation creating the program and Governor Ralph Northam (D) approved it on March 23, 2018.

To learn more about the Virginia General Assembly or other state approaches to address the administrative state, see here:
Additional reading:

Virginia Administrative Procedure Act

Click here to read the text of the law establishing the pilot program.
Click here to read the text of the 2019 progress report.


New York sues federal agencies over new travel restrictions

The state of New York on February 10 filed suit in the U.S. District Court for the Southern District of New York arguing that the U.S. Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) violated the Administrative Procedure Act (APA) when they blocked New York residents from participating in Trusted Traveler programs (TTPs). The lawsuit claims in part that the agencies did not follow the rulemaking procedures required by the APA when they excluded New York residents from the programs.

DHS informed New York officials on February 5 that residents of New York were no longer eligible to participate in TTPs, which allow travelers to use faster screening lanes at airports and at international borders. The federal agencies acted in response to a 2019 New York law, known as the Green Light Law, that allows people in the United States without legal permission to apply for New York drivers licenses. The legislation “restricts CBP’s access to certain criminal history information maintained by the New York Department of Motor Vehicles,” according to a CBP press release.

New York Attorney General Letitia James argues in the lawsuit that the “new policy is a punitive measure intended to single out New York and coerce the state into changing its policies to compel conformity with preferred federal policies,” according to a press release. The lawsuit further claims that the policy is a rule that should have had a public notice and comment period before going into effect.

The APA specifies procedures for agencies to follow when they issue a new rule. Under the APA’s informal rulemaking process, agencies must publish a notice of proposed rulemaking in the _Federal Register_, provide a comment period to allow interested members of the public to weigh in on the new rule, and publish a final rule in the _Federal Register_ 30 days before it goes into effect.

To learn more about the Administrative Procedure Act and informal rulemaking, see here:

Additional reading:
Comment period
Federal Register
Final rule
Formal rulemaking
Administrative state

Lawsuit:
https://ag.ny.gov/sites/default/files/ny_v_w_complaint.pdf

CBP Press Release:
https://www.cbp.gov/newsroom/national-media-release/new-york-residents-no-longer-eligible-apply-or-renew-trusted

New York Attorney General Press Release:
https://ag.ny.gov/press-release/2020/attorney-general-james-files-lawsuit-against-trump-administration-over-assault



Survey finds 44 states do not prohibit delegation of legislative power to agencies

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 44 states, 88%, had no prohibition against the delegation of legislative power to agencies as of January 2020.

The nondelegation doctrine refers to limits placed on transferring legislative authority to the executive branch or to administrative agencies. The doctrine is a constitutional principle key to understanding one of the main areas of debate about the nature and scope of the administrative state.

States have a range of limitations on the delegation of legislative authority. Most state constitutions divide power between branches of government and some restrict the types of rules administrative agencies can issue using delegated authority.

The Ballotpedia survey found that six state APAs, 12%, contained prohibitions against the delegation of legislative authority to agencies. State APAs contain procedures for state administrative agencies to propose and issue regulations, to adjudicate disputes, and provide for judicial review of agency decisions. Many state APAs are modeled on the federal APA, which governs the administrative processes of federal executive branch agencies.

Click here to learn more about the results of the survey.

Click here to learn more about the nondelegation doctrine.

Additional reading:



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