Author

Jace Lington

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

Ninth Circuit panel limits nationwide injunction of Trump administration immigration rule

On August 16, a panel of judges on the U.S. Court of Appeals for the Ninth Circuit ruled that a federal district court went too far when it granted a nationwide injunction against a new federal immigration rule.
 
What happened?
 
The Ninth Circuit upheld the injunction, which blocks enforcement of a rule, within the bounds of the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) but held that the nationwide scope of the injunction was not supported by the record. The panel said that the district court did not explain why it believed a nationwide injunction was necessary in this case.
 
How did we get here?
 
On July 24, 2019, Judge Jon Tigar, on United States District Court for the Northern District of California, issued a nationwide injunction to block a Trump administration rule while court challenges to the rule move forward.
 
The interim final 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.
 
The agencies argued that immigration enforcement challenges on the southern border allowed them to issue the new asylum rule under the Administrative Procedure Act’s (APA) 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.” The agencies also argued that they could skip notice-and-comment procedures because the rule involved a “foreign affairs function of the United States” and procedural delay could have negative international consequences.
 
Judge Tigar argued that the agencies did not show that a public comment period would have undesirable international consequences and that the rule fails the arbitrary-or-capricious test. Under that test, judges invalidate rules that are an abuse of discretion or not in accordance with law.
 
What happens next?
 
The Ninth Circuit panel asked the district court to reconsider the reasons supporting a nationwide injunction and scheduled future arguments in the case for December 2019.
 
 


Trump administration changes rules for immigrants who use government assistance

On August 12, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) announced a final rule that changes how the federal government screens immigrants who might become dependent on government services. According to the 837-page rule, agencies may deny immigrants a visa or a green card if they have used food stamps, Medicaid, housing subsidies, or other public benefits.
 
Per an earlier 1999 guidance document, only public cash assistance or long-term institutionalization at government expense counted as evidence that an immigrant was at risk of being a public charge. Prior to the new rule, agencies could deny immigrants continued legal status if they determined that the immigrants were likely to rely on public benefits. The new rule amends the 1999 guidance to expand the factors agencies may consider when deciding those cases.
 
Guidance is a term in administrative law used to describe a variety of documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. 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 (APA).
 
In this case, the agencies followed informal procedures and issued the immigration rule after announcing a proposal and giving the public a chance to offer feedback. The agencies scheduled the rule to go into effect in October, 60 days after its publication in the Federal Register.
 


Administrative Conference of the United States recommends changing how agencies handle guidance

On August 8, the Administrative Conference of the United States (ACUS), an independent federal agency charged with improving administrative procedures, published four recommendations in the Federal Register. Two of those recommendations involved agency guidance, which refers to documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures.
 
The first recommendation encourages agencies to offer the public chances to propose alternatives to interpretive rules and to allow the public to participate in modifying those rules.
 
The next guidance recommendation instructs agencies to post their guidance documents online and to make sure the public knows where to find them.
 
The other two ACUS recommendations involved hiring procedures for Administrative Law Judges (ALJs) and updating rules related to awarding attorney fees to those who successfully challenge government actions in court.
 


Resolution aims to block Trump administration guidance that gave states more flexibility from Obamacare requirements

On July 31, U.S. Senator Mark Warner (D-VA) introduced a resolution under the Congressional Review Act (CRA) that would repeal a guidance document that gave states more flexibility when applying for waivers from Obamacare requirements. 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.
 
Senator Warner’s CRA resolution, if passed and signed into law, would undo the health insurance waiver guidance and attracted 44 Democratic cosponsors and the two independent U.S. senators. U.S. Senator Tom Udall (D-N.M.) said that the guidance gives states the authority to allow health insurers to offer short-term plans that do not cover pre-existing conditions. 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 were vetoed.
 
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.
 


U.S. Supreme Court allows Pentagon to fund wall on U.S. border, questions Sierra Club’s right to sue

On July 26, 2019, the U.S. Supreme Court ruled to allow the Pentagon to use military funds to build a wall along the southern border of the United States. The ruling said that groups objecting to the use of money for the border wall had not shown that they have the right to challenge the government’s actions in court.
 
The Supreme Court’s decision temporarily blocked an injunction issued by California District Court Judge Haywood S. Gillam, Jr. until after the 9th Circuit Court of Appeals resolves the case or after the case comes before the U.S. Supreme Court. While the five Republican-appointed justices voted to grant the temporary stay on the injunction, the four Democrat-appointed justices dissented.
 
In February 2019, the Sierra Club and the Southern Border Communities Coalition (SBCC) sued President Trump and members of his administration. They argued that the courts should not allow officials to construct a barrier on the border using funds appropriated by Congress for the Department of Defense.
 
Judge Gillam issued an injunction in May 2019 that blocked the Trump administration from diverting Department of Defense funds to build sections of the border wall. Gillam ruled that the Sierra Club and SBCC did not need a special right of action to ask for a court order to block executive actions they believed were beyond the executive branch’s legal authority. He held that the Administrative Procedure Act (APA) framework of judicial review did not apply in this case.
 
 


Council on Environmental Quality extends comment period for new greenhouse gas emissions guidance

On July 24, the White House Council on Environmental Quality (CEQ) gave the public more time to comment on new guidance related to how federal agencies should address greenhouse gas emissions. The guidance tells agencies to focus on the reasonably foreseeable environmental consequences of major actions. It also tells agencies that they do not have to weigh the monetary costs and benefits of proposed actions under the National Environmental Policy Act (NEPA).
 
The CEQ published the draft guidance in the Federal Register on June 26 and originally scheduled a month for public feedback. After a request to extend the comment period, CEQ published a notice moving the deadline to August 26, 2019.
 
The CEQ guidance will replace 2016 guidance about greenhouse gas emissions. The 2016 guidance was withdrawn following President Trump’s Executive Order 13783, which directed federal agencies to review all rules related to domestic energy development and to remove any that imposed significant economic costs.
 
The NEPA established the CEQ inside the Executive Office of the President to coordinate agency actions that affect environmental quality and to make sure agencies comply with NEPA requirements. The NEPA requires agencies to consider the environmental consequences of proposed actions and to tell the public about how the agency makes decisions.
 
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.
 


Idaho governor announces new regulatory processes, plans to simplify Idaho regulations

On July 25, Idaho Governor Brad Little announced four changes to the state rulemaking process:
  1. The state will post all notices and schedules for public hearings during the rulemaking process on one website.
  2. Citizens may now subscribe to a state newsletter informing them when new rules are published.
  3. Agencies will have to include a cover sheet with new rules explaining the purpose of the rule, who is covered by the rule, and who to contact for more information.
  4. Agencies will consolidate the chapters of rules they administer to make them easier for the public to understand.
In a July 19 announcement, Governor Little said he wanted to simplify up to 60 percent of the state’s regulations by the end of 2019. He added that he directed agencies to get rid of duplication and not to change fundamental policies. Little said that changing policy is the responsibility of the state legislature.
 
To learn more about Idaho’s regulatory code and other state approaches to the administrative state, click the link below.
 


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

President Trump announced on July 18, 2019, that he would pick lawyer Eugene Scalia to replace Alexander Acosta as secretary of labor. Scalia is son of the late U.S. Supreme Court Justice Antonin Scalia and was responsible for all Labor Department litigation and 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 and employment law and constitutional law.
 


Resolutions aim to restore state and local tax deduction via the Congressional Review Act

Congressional Review Act (CRA) resolutions introduced in both houses of Congress on July 16 aim to allow states and local governments to let taxpayers donate more to charity in exchange for paying less in state and local taxes. The resolutions would repeal an Internal Revenue Service (IRS) regulation designed to prevent states and local governments from helping taxpayers avoid the limits placed on state and local tax (SALT) deductions by the Tax Cuts and Jobs Act of 2017. According to the IRS regulation, taxpayers lose some of their federal charitable tax deduction based on how much of a deduction their state or local governments provide. If the CRA resolutions pass, many residents of states and cities that charge higher taxes would pay less in federal income taxes.
 
Senate Minority Leader Chuck Schumer (D-N.Y.) and Representative Mikie Sherrill (D-N.J.) introduced companion resolutions that would undo the IRS regulation and attracted 61 Democratic cosponsors and 1 Republican cosponsor as of July 19.
 
Under the Congressional Review Act, the resolutions would need to pass both houses of Congress and receive President Trump’s signature to repeal the IRS regulation.
 
The Congressional Review Act (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 were vetoed.
 


Trump administration asks court to uphold restrictions on presidential authority over housing agency

In a July 9, 2019, letter, the Federal Housing Finance Agency (FHFA) asked the Fifth Circuit Court of Appeals to uphold for-cause removal protections, which limit the circumstances in which presidents can remove the heads of agencies. The FHFA told the court that the agency’s new director had reconsidered the constitutionality of the agency’s structure.
 
The FHFA sent the letter as part of the ongoing proceedings in Collins v. Mnuchin, where a panel of the Fifth Circuit found that the structure of the FHFA is unconstitutional because it is led by a single director who is only removable by the president for cause. The court reheard the case en banc in January 2019 and had not announced a decision as of July 11, 2019.
 
The FHFA was created by the Housing and Economic Recovery Act of 2008 (HERA) to oversee the government-sponsored mortgage security corporations Fannie Mae and Freddie Mac. In Collins v. Mnuchin, Fannie Mae and Freddie Mac shareholders presented the following complaints:
  • A 2012 dividend agreement between the FHFA and the U.S. Department of the Treasury, which rendered their shares valueless, exceeded the statutory authority of the FHFA and the Treasury Department.
  • The FHFA is unconstitutionally structured because it is headed by a single director who is only removable for cause and it does not depend on congressional appropriations.
A district court dismissed the shareholders’ complaints. In a split decision, however, the Fifth Circuit panel reversed the decision on the grounds that the structure of the FHFA violates the separation of powers because the agency’s director is too insulated from presidential control. The court struck the language from HERA that only allowed the president to dismiss the FHFA director for good cause. Though the panel found the FHFA structure unconstitutional, they upheld the power of FHFA and Treasury Department to enter into the dividend agreement.
 
Additional reading:
 
FHFA letter to the 5th Circuit:


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