Author

Jace Lington

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

Payroll tax deferral plan subject to challenge under Congressional Review Act, GAO confirms

On September 15, the Government Accountability Office (GAO) sent a letter to U.S. Senate Minority Leader Chuck Schumer (D-N.Y.) and Senator Ron Wyden (D-Ore.) clarifying that a recent IRS guidance document was subject to challenge through the Congressional Review Act (CRA).

The IRS guidance related to a presidential memorandum issued by President Donald Trump on August 8 that directed the Secretary of the Treasury to defer payroll tax collection for workers who make less than $4000 per paycheck between September and December 2020.

On September 4, U.S. Representative John Larson (D-Conn.) introduced a resolution of disapproval under the CRA in an attempt to block the IRS guidance from going into effect. As of September 18, the resolution had 28 cosponsors, all members of the Democratic Party.

Larson argued in a press release that Trump’s deferral policy “is the first step towards a long-time conservative dream to end Social Security as we know it. This is a direct attack on our country’s most popular program that must be stopped.” The administration argued that the deferral would “put money directly in the pockets of American workers and generate additional incentives for work and employment.”

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law’s creation in 1996, 17 out of the over 90,767 rules published in the _Federal Register_ during that time have been repealed using the CRA. To block the IRS guidance, both houses of Congress would have to pass a CRA resolution of disapproval and get President Trump to sign it into law.

To learn more about the Congressional Review Act or guidance documents, see here:
Congressional Review Act
Guidance (administrative state)

Additional reading:
Presidential memorandum
Administrative state
Federal government responses to the coronavirus (COVID-19) pandemic, 2020
U.S. Government Accountability Office
Internal Revenue Service



Ballotpedia study shows that 29 state APAs require administrative agencies to accept oral evidence during adjudicative hearings

A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 29 state APAs require administrative agencies to accept oral evidence during adjudicative hearings, as of August 2020. Administrative agencies in those states hear oral testimony during hearings like a state court.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Because state administrative agencies are not part of the judicial branch of government, adjudication proceedings before them do not necessarily afford the same procedural protections as in a courtroom trial. While oral testimony is customary in a courtroom, agencies may not always have to accept oral evidence during adjudication.

Twenty-nine states require agencies to accept oral testimony during hearings. Ballotpedia concluded, therefore, that those states require acceptance of oral evidence.

When states listed exceptions to a general rule that agencies should accept oral testimony during hearings, Ballotpedia concluded, therefore, that they sometimes require acceptance of oral evidence. Seven states have provisions like this.

When states allowed administrative agencies to accept either written or oral evidence during hearings, or left whether to accept oral testimony to the discretion of the hearing officer, Ballotpedia concluded, therefore, that they do not require agencies to accept oral evidence. Fourteen states have provisions like this.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Procedural rights: States that require administrative agencies to accept oral evidence during adjudicative hearings

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading:


Ballotpedia study shows that no states provide for juries to participate in agency adjudication hearings

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that no state constitutions or APAs provide for juries to participate in agency adjudication hearings, as of August 2020. Thus, hearing officers or other agency officials preside over and decide the outcome of adjudications instead of people from the community.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Because state administrative agencies are unlike traditional state courts, the same rules do not always apply. The absence of jury participation is a way agency adjudication differs from the traditional judicial process that state courts follow.

Understanding adjudication procedures provides insight into due process procedural rights of citizens at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Procedural rights: States that provide for juries to participate in agency adjudication hearings

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading:


Ballotpedia study shows that 46 states allow administrative agencies to choose whether to follow formal adjudication procedures

A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 46 state constitutions or APAs allow administrative agencies to choose whether to follow formal adjudication procedures in administrative hearings, as of August 2020. Those states allow administrative agencies to settle these cases informally with fewer procedural safeguards than the formal adjudication process provides.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Formal adjudication procedures approximate those of a traditional state court and include trial-like, adversarial hearings with witnesses, a written record, and a final decision made by a neutral presiding officer. Informal adjudication procedures vary but do not necessarily require a hearing with oral testimony, cross-examination of witnesses, or a verbatim stenographic record.

Most states allowed the agencies and accused parties to decide whether to go through a formal adjudication or to reach an informal settlement. Ballotpedia concluded, therefore, that those states do not require formal adjudication.

When states listed exceptions to a general rule that agencies should follow formal adjudication procedures, Ballotpedia concluded, therefore, that they sometimes require formal adjudication.

Understanding adjudication procedures provides insight into the due process and procedural rights of citizens at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Procedural rights: States that require agencies to follow formal adjudication procedures in administrative hearings

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading:


Ballotpedia study shows that every state allows administrative agencies to impose monetary penalties without a court order

A Ballotpedia survey of all 50 states showed that no state constitutions or Administrative Procedure Acts (APAs), as of May 2020, require administrative agencies to get a court order before imposing monetary penalties as a result of adjudication proceedings. Those state constitutions and APAs let agencies impose penalties without involving the judicial branch of the state government.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Understanding limits on agencies’ ability to impose monetary penalties provides insight into procedural rights at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here: Procedural rights: States that allow agencies to impose monetary penalties without a court order

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading:


Maine Supreme Court: Ballot measure violates boundaries of legislative power

On August 13, 2020, the Maine Supreme Court ruled in Avangrid Networks, Inc. v. Secretary of State that a ballot referendum scheduled to appear on the November 2020 ballot was an unconstitutional violation of state separation of powers principles. The judges held that the referendum did not meet the requirements of the state constitution for inclusion on the ballot because, in their words, “it exceeds the scope of the people’s legislative powers” under the Maine Constitution.

The referendum aimed to overturn a decision by the Maine Public Utilities Commission (PUC) to give a company permission to build a high-voltage power line to deliver electricity from Canada. The Maine Supreme Court argued that it had the power to review the constitutionality of the referendum before the November election to determine whether it would be a proper exercise of the people’s legislative authority.

The court ruled that the referendum was not within the legislative power of the people of Maine because it would be an exercise of executive or judicial power instead of legislative. The court wrote that the referendum’s “purpose and effect is to dictate the Commission’s exercise of its quasi-judicial executive-agency function in a particular proceeding.” The court added that the referendum “would interfere with and vitiate the Commission’s fact-finding and adjudicatory function—an executive power conferred on the Commission by the Legislature.”

While the legislature has the power to limit the legislative functions and authority of the PUC, the court ruled that it does not have the power to require the PUC to overturn and reverse a particular administrative decision that it had made. Since the ballot referendum process is an exercise of legislative power, the court held that the same limitation applies. Under the separation of powers provision contained in the Maine Constitution, no one in a particular branch of government may exercise the powers that belong to the other branches of government.

The court ruled that since the referendum did not propose legislation it should not appear on the November 2020 election ballot.

To learn more about the referendum and separation of powers, see here:
Additional reading:
Link to the Maine Supreme Court decision:


Maine Supreme Judicial Court hears arguments about the role of ballot referenda in overturning state administrative agency decisions

On August 5, the Maine Supreme Judicial Court heard oral arguments in a case about whether voters may use the ballot referendum process to reverse actions taken by a state administrative agency. At issue is a ballot referendum set to appear on the November 2020 ballot that would overturn a state agency decision giving a power company permission to build a high-voltage power line.

The lawyer for Avangrid Networks, which owns the power company, argued that the “integrity of the Maine Constitution and [its] constitutional form of government” depended on the court stopping the ballot referendum. He said that it was the duty of the court to stop proponents of the ballot referendum from attempting to use the referendum process in a way that is not supported by the state constitution.

Opponents of the referendum argue that the ballot measure violates the separation of powers provision found in Article III of the Maine Constitution. They’ve argued that the measure is an attempt to use a ballot referendum to exercise executive authority by reversing an agency order, and judicial authority by overturning a related court decision.

The lawyer representing supporters of the referendum argued that the court should wait to rule on the constitutionality of the referendum until after the November 2020 election. He argued that the referendum, which would direct the behavior of the Maine Public Utilities Commission, was a legitimate use of legislative authority. He added that however the court decides, voters should be allowed to vote for or against the measure in the election.

The lawyer for the secretary of state of Maine stated that the secretary agreed, along with the challengers, that the referendum goes beyond the power of citizens to legislate under the Maine Constitution. She also stated that the court should decide the issue before the November election.

To learn more about the Maine ballot measure, see here:
Additional reading:
Link to the oral argument:


Ballotpedia study shows that no states require administrative agencies to meet higher burdens of proof in proportion to the size of monetary penalties they seek to impose

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that no state constitutions or APAs require administrative agencies to meet higher burdens of proof in proportion to the size of monetary penalties they seek to impose following adjudication.

Agency adjudication is a quasi-judicial process that takes place in the executive branch of the state government instead of in the judicial branch. Often, the procedural protections associated with adjudication are different from those found in a traditional courtroom setting.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

States often require state agencies to base their adjudication decisions on substantial evidence. That requirement led Ballotpedia to wonder whether state agencies had higher evidentiary burdens when they sought to impose higher penalties and fines. The survey showed that no state required administrative agencies to meet higher burdens of proof in proportion to the size of monetary penalties they seek to impose.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Procedural rights: States that require agencies to meet higher burdens of proof in proportion to the size of monetary penalties they seek to impose

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading:


Ballotpedia survey shows no state constitution or administrative procedure act requires agencies to prove rule violators acted knowingly before imposing penalties

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that no state constitutions or APAs require agencies to prove rule violators acted knowingly before imposing penalties after adjudication. Without those requirements, state agencies may be able to order people and businesses to pay fines for breaking rules without proving whether rulebreakers did so knowingly.

Agency adjudication is a quasi-judicial process that takes place in the executive branch of the state government instead of in the judicial branch. Often, the procedural protections associated with adjudication are different from those found in a traditional courtroom setting.

Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

States traditionally require prosecutors in criminal cases to demonstrate that a defendant committed a crime knowing that the behavior was wrong, often known as mens rea. While traditional in criminal proceedings, this survey examined whether state agencies must also prove that people and businesses committed acts they knew violated regulations before issuing fines and penalties.

Understanding the burden of proof agencies must meet before charging fines and penalties provides insight into procedural rights at the state level. Procedural rights is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here:

Want to go further? Learn more about the five pillars of the administrative state here:

Additional reading:



California sues Trump administration for changing census procedures

California is challenging a Trump administration effort to exclude people who reside in the United States without legal permission from the census numbers used to allocate congressional districts.

On July 28, California Attorney General Xavier Becerra filed a lawsuit arguing that the July 21 presidential memorandum entitled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” violates separation of powers principles, the Administrative Procedure Act (APA), and the U.S. Constitution.

Becerra argues that Congress did not authorize President Trump to make the exclusion, and that the U.S. Commerce Department, which governs the U.S. Census Bureau, must first go through APA-required notice-and-comment rulemaking procedures in order to change its rule that census officials must count all persons at the residence where they sleep most of the time.

According to the presidential memorandum, “The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the ‘persons in each State, excluding Indians not taxed,’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census.” Becerra argues that the policy outlined in the memorandum would deprive California of what he called its rightful share of congressional representatives and depress the 2020 census count.

The memorandum adds that, “The discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.” In addition, “Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.”

The United States District Court for the Northern District of California will now decide whether to block the Trump administration’s new census policy.

Read more about the presidential memoranda and separation of powers here:
Additional reading:
Link to the lawsuit:
Link to the presidential memorandum:


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