Author

Jace Lington

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

Group of 17 states brings administrative law challenge against new Endangered Species Act rules

On September 25, a group of 17 states, Washington, D.C., and New York City, joined together to sue the Trump administration in an effort to block three new rules that changed how federal agencies enforce the Endangered Species Act (ESA). The lawsuit argues that the U.S. Fish and Wildlife Service and National Marine Fisheries Service failed the Administrative Procedure Act’s (APA) arbitrary-or-capricious test when they issued the rules in August.
 
The arbitrary-or-capricious test is a legal standard of review judges use to assess actions taken by administrative agencies. The test came from a provision of the 1946 Administrative Procedure Act, 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.” Judges use the test most often to assess the facts underlying an agency rulemaking.
 
According to the Trump administration, the rule changes related to the ESA reduce the regulatory burden and increase agency transparency. Opponents of the rules argue that the changes limit the ability of agencies to respond to perceived problems.
 
The states filed the lawsuit in the United States District Court for the Northern District of California. The 17 states that joined the lawsuit are California, Massachusetts, Maryland, Colorado, Connecticut, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
 


Fifth Circuit pauses SEC action while it resolves appointment power question

On September 24, a panel of judges on the Fifth Circuit Court of Appeals ordered the Securities and Exchange Commission (SEC) to delay enforcement proceedings against an accountant until after the court resolves a pending legal challenge. The accountant, Michelle Cochran, argues that since the president cannot fire the SEC Administrative Law Judge (ALJ) that will oversee her agency hearing, the ALJ has unconstitutional protections. The Fifth Circuit will now decide whether SEC ALJs operate in line with the U.S. Constitution.
 
An ALJ is an official who presides over federal administrative hearings. ALJs serve as both the judge and the jury in an administrative hearing. The Administrative Procedure Act (APA) requires that administrative law judges preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings aim to resolve disputes between either agencies and private parties or between two private parties.
 
According to a summary provided by her lawyers, Cochran’s case started in 2016, when she was charged with violating accounting standards. An SEC ALJ ruled against her in 2017, fined her, and banned her from practicing as an accountant for five years. Soon after, the U.S. Supreme Court decided _Lucia v. SEC_. In that case, the court ruled that SEC ALJs were officers of the United States and had to be appointed by the president according to the procedures in the U.S. Constitution.
 
Since the ALJ who made the 2017 ruling against Cochran was not appointed by the president, the SEC decided that a new, properly appointed, ALJ had to re-hear her case. Now, Cochran is challenging the civil service removal protections that keep presidents from firing SEC ALJs once they have been appointed. She argues that the ALJs enjoy layers of removal protections similar to those the U.S. Supreme Court found unconstitutional in the 2013 case _Free Enterprise Fund v. PCAOB_.
 
Cochran is represented by the New Civil Liberties Alliance (NCLA), a public interest law firm in Washington, D.C. The judges on the Fifth Circuit panel were Reagan-appointee Edith Jones, Obama-appointee Stephen Higginson, and Trump-appointee Andrew Oldham.
 


Fifth Circuit finds federal housing agency structure unconstitutional

On September 6, 2019, the Fifth Circuit Court of Appeals ruled 9-7 that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional. The Fifth Circuit sent the case back to the district court to decide how to resolve remaining questions about how the FHFA decided to handle the finances of Fannie Mae and Freddie Mac.
 
The FHFA was created by Congress in the aftermath of the 2008 recession as an independent agency to regulate the United States mortgage market. This case, _Collins v. Mnuchin_, involved whether the FHFA had the authority to require Fannie Mae and Freddie Mac to give nearly all of their money to the U.S. Treasury Department each quarter instead of to the companies’ shareholders. The companies argued that such an arrangement went beyond the FHFA’s legal authority and that the structure of the agency was unconstitutional.
 
The Fifth Circuit held that the FHFA for-cause removal structure “limits the President’s removal power and does not fit within the recognized exception for independent agencies.” The U.S Supreme Court established that exception for agencies led by multi-member boards in the 1935 case _Humphrey’s Executor v. United States_. The Fifth Circuit held that court precedent does not support removal protections for agencies led by single directors like the FHFA.
 
The court also held that “an independent agency with a single Director removable only ‘for cause,’ violates the separation of powers.” In this context, separation of powers refers to the three divided branches of the United States federal government: legislative, executive, and judicial. Under a strict reading of the U.S. Constitution, each branch has distinct powers and responsibilities and Congress is not allowed to create independent agencies that blend those powers.
 
The majority opinion cited the 2010 U.S. Supreme Court case _Free Enterprise Fund v. PCAOB_ to support severing the removal protections from the FHFA statute and leaving the rest of the law in place.
 


U.S. Supreme Court lifts injunction, lets Trump administration enforce new asylum rule

 
On September 11, the U.S. Supreme Court granted the Trump administration’s request to lift an injunction that was blocking the enforcement of a new rule dealing with asylum seekers. The court’s order allows the rule to go into effect while legal challenges against it come before the 9th Circuit Court of Appeals and, potentially, the U.S. Supreme Court.
 
Justice Sotomayor, joined by Justice Ginsburg, wrote a four-page dissent from the U.S. Supreme Court’s decision. The rule in question allows federal agencies to deny asylum applications made by those who traveled through a third country before arriving at the U.S. border after failing to apply for asylum in that third country first. Among the reasons Sotomayor would have left the injunction in place, she argued that the rule violated administrative procedures that give the public time to comment on proposed rules before they take effect. She also suggested that agency explanations of the rule might fail the arbitrary-or-capricious test, which requires courts to invalidate rules that are arbitrary, capricious, an abuse of discretion, or contrary to law.
 
In the government’s request for a stay from the Supreme Court, U.S. Solicitor General Noel Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the Administrative Procedure Act (APA). The agencies that issued the asylum rule argued that immigration enforcement challenges on the southern border allowed them to issue the rule under the APA’s good cause exception to notice-and-comment procedures. The good cause exception allows agencies to issue rules without waiting for public comment if those procedures would be “impracticable, unnecessary, or contrary to the public interest.”
 
On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California had restored the nationwide injunction against the asylum rule. He had originally issued a nationwide injunction against the rule in July, but the 9th Circuit Court of Appeals narrowed its scope to only those states within the 9th Circuit in an August ruling.
 
Judge Tigar argued that he had to block the asylum rule nationwide. He said organizations that help asylum seekers with offices in several states would otherwise have to spend money and time figuring out whether a particular applicant was covered by a narrower injunction.
 


Federal Judge restores nationwide injunction against Trump administration asylum rule

On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California restored the nationwide scope of an injunction against a Trump administration asylum rule. He had originally issued a nationwide injunction against the rule in July, but the 9th Circuit Court of Appeals narrowed its scope to only those states within the 9th Circuit in an August ruling. The injunction prevents the Trump administration from enforcing the asylum rule until the courts resolve the legal challenges brought against it.
 
The rule, issued by the U.S. Department of Justice, U.S. Citizenship and Immigration Services, and the U.S. Department of Homeland Security on July 16, aims to deny asylum to people who travel through another country and fail to file for asylum there before applying in the United States.
 
Judge Tigar argued that he had to block the asylum rule nationwide. He said organizations that help asylum seekers with offices in several states would otherwise have to spend money and time figuring out whether a particular applicant was covered by a narrower injunction. He also argued that the rule failed the arbitrary-or-capricious test outlined by the Administrative Procedure Act (APA).
 
On August 26, U.S. Solicitor General Noel Francisco asked the U.S. Supreme Court to allow the Trump administration to go ahead with enforcement of the rule while the challenge works its way through the court system. In the government’s request for a stay from the Supreme Court, Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the APA. The agencies that issued the asylum rule argued that immigration enforcement challenges on the southern border allowed them to issue the rule under the APA’s good cause exception to notice-and-comment procedures. The good cause exception allows agencies to issue rules without waiting for public comment if those procedures would be “impracticable, unnecessary, or contrary to the public interest.”
 
As of September 6, the Trump administration’s request to remove or narrow the injunction against the asylum rule was still pending before the U.S. Supreme Court.
 


Letter reveals Democrats’ plan to repeal Trump administration healthcare guidance

Senate Democrats plan to use the Congressional Review Act (CRA) this fall to reverse a guidance document that gave states more flexibility when applying for waivers from Obamacare requirements. The plan was included in a letter written by Senate Minority Leader Chuck Schumer (D.-N.Y.) outlining fall priorities for the Democratic Party, according to Politico on September 5. Schumer wrote that the guidance document allows states to offer health insurance plans that do not include protections for patients with pre-existing conditions.
 
U.S. Senator Mark Warner (D-VA) introduced a CRA resolution that would repeal the guidance document on July 31, 2019. The Centers for Medicare & Medicaid Services (CMS), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury issued the guidance on October 24, 2018. The guidance aims to allow states to innovate within their individual health insurance markets.
 
The resolution has attracted 44 Democratic cosponsors and the two independent U.S. senators. Under the CRA, the resolution would need to pass both houses of Congress and receive President Trump’s signature to repeal the guidance.
 
On July 15, 2019, the Government Accountability Office concluded that the guidance document was a rule according to the Congressional Review Act (CRA). 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, 17 out of the over 90,767 rules published in the Federal Register during that time have been repealed using the CRA. 13 additional attempts either failed to pass through Congress or received vetoes.
 
Guidance is a term in administrative law used to describe documents created by administrative agencies to explain rules, laws, and procedures. Guidance documents affect how agencies administer regulations and programs. However, they are not supposed to be legally binding in the same way as rules issued through the rulemaking processes of the Administrative Procedure Act. Congress used the CRA to repeal a guidance document for the first time on May 21, 2018.
 


Department of Energy withdraws rules that would have expanded energy-efficient lightbulb requirements

The U.S. Department of Energy (DOE) published a final rule on September 5 that withdraws rules made during the Obama administration that apply higher energy-efficiency requirements to some specialty lightbulbs. The department also published a separate proposed rule saying that current energy-efficiency standards do not need to change.

This means that certain types of lightbulbs—rough service lamps, vibration service lamps, 3-way incandescent lamps, high lumen lamps, and shatter-resistant lamps—will no longer be required to meet higher energy-efficiency requirements. Those bulbs—which are often used in chandeliers, bathroom fixtures, and commercial applications—would have fallen under those requirements starting in January 2020. Had the prior rule gone into effect, consumers would have seen different light bulbs for sale in stores starting in 2020. The DOE’s new rules will maintain the existing definition of general service lamps.

The Energy Policy and Conservation Act of 1975 (EPCA) gave the DOE the responsibility to manage an energy conservation program for consumer products, including lightbulbs. Under the program, consumers are not allowed to purchase lightbulbs that fall within the definition of general service lamps (GSLs) that don’t meet energy-efficiency standards.

The law defined GSLs to include general service incandescent lamps (GSILs), compact fluorescent lamps (CFLs), general service light-emitting diode (LED) lamps, organic light-emitting diode (OLED) lamps, and other lamps that the Secretary of Energy determines are used similarly to traditional incandescent light bulbs.

Following amendments made to the EPCA in 2007, the DOE has been deciding whether to change the energy conservation standards for GSLs and whether to add particular kinds of lightbulbs to the definition of GSLs. The new DOE rules maintain the energy conservation standards for GSLs as well as the types of lightbulbs to which it applies.

During the Obama administration, the DOE issued two rules that expanded the definition of GSLs to lightbulbs that had been exempt from some energy-efficiency rules. Those rules were published in the Federal Register but had not gone into effect. In issuing its rule, the DOE said the revised definitions of general service lamps “included certain GSILs as GSLs in a manner that is not consistent with the best reading of the statute.” The DOE scheduled the withdrawal of the previous rules effective October 7.



Trump administration asks U.S. Supreme Court for emergency action on asylum rule

On August 26, U.S. Solicitor General Noel Francisco asked the U.S. Supreme Court to allow the Trump administration to enforce a new asylum rule while a challenge to the rule is working its way through the court system.
 
What happened?
 
The solicitor general asked the U.S. Supreme Court to grant a stay of injunction. If the Supreme Court complies, the Trump administration could deny asylum to people who travel through another country and fail to file for asylum there before applying in the United States. On August 16, the Ninth Circuit had upheld a district court’s injunction, which blocked the rule from going into effect until after courts resolve the cases brought against it. You can read about the Ninth Circuit’s ruling here
 
In the government’s request for a stay, Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the Administrative Procedure Act (APA). He argued that if the Supreme Court does not remove the injunction it should at least limit its application to specific people who were injured under the new rule. When the Ninth Circuit upheld the initial injunction, it limited the scope to those states within its jurisdiction.
 
What comes next?
 
According to Amy Howe, writing for SCOTUSblog, Justice Elena Kagan handles emergency requests related to cases before the Ninth Circuit. She will decide whether to rule on the government’s request herself or to refer the decision to the full Supreme Court.
 


President Trump nominates Eugene Scalia to lead U.S. Department of Labor

On August 27, 2019, President Trump nominated lawyer Eugene Scalia to replace Alexander Acosta as secretary of labor.
 
Who is he?
 
Scalia is the son of late U.S. Supreme Court Justice Antonin Scalia and handled Labor Department litigation and gave legal advice on rulemakings and administrative law during George W. Bush’s presidency.
 
According to his law firm biography, Eugene Scalia also served as special assistant to U.S. Attorney General William Barr from 1992 to 1993 and has written over 20 articles and papers on labor, employment, and constitutional law.
 
What happens next?
 
After the summer recess, the U.S. Senate Committee on Health, Education, Labor and Pensions will vote on Scalia’s nomination. If the committee approves him, then the full Senate will vote on whether to confirm him as the new head of the Department of Labor.
 


President Trump issues memorandum that aims to help disabled veterans navigate student loan forgiveness program

On August 21, President Trump issued a presidential memorandum directing the Departments of Education (DOE) and Veterans Affairs (VA) to simplify the process disabled veterans must follow to have their student loans forgiven.
 
Under the Higher Education Act, veterans who have total and permanent disabilities because of their military service qualify for federal student loan forgiveness. According to President Trump’s memorandum, only half of those veterans who qualify have taken advantage of the program.
 
The memorandum directs the DOE and the VA to work together to minimize the burdens on qualifying veterans who want relief from their student loans.
 
Presidential memoranda and executive orders both carry the force of law, but memoranda are not numbered nor required by law to be published in the _Federal Register_. Under an executive order issued by President John F. Kennedy, the president must cite the constitutional or legal authority that justifies issuing an executive order; that justification is not required for presidential memoranda.
 


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