Jace Lington – Ballotpedia News

February 18, 2022 at 6:49 PM

A Congressional Review Act (CRA) resolution introduced in the U.S. Senate aims to block an interim final rule issued by the U.S. Department of Health and Human Services (HHS) that requires all Head Start staff and volunteers to get vaccinated against COVID-19 and wear a mask.

Senator John Thune (R-S.D.) sponsored the resolution in the U.S. Senate on Feb. 14. The resolution had 23 cosponsors, all from the Republican Party, as of Feb. 17.

The Congressional Review Act is a federal law passed in 1996 that creates a 60 day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule. Both houses of Congress have to pass a resolution disapproving of the HHS rule and President Biden would then have to sign that resolution into law to block the requirements.

Since the law’s creation in 1996, Congress has used the CRA to repeal 20 rules published in the Federal Register. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency.

Congress ultimately repealed 16 rules in total using the CRA during the Trump administration and repealed three more at the beginning of the Biden administration.

Additional reading:

U.S. Supreme Court to decide whether veterans may challenge VA decisions based on illegal regulations

By Jace Lington

In Federal

February 14, 2022 at 11:09 AM

The U.S. Supreme Court agreed to hear George v. McDonough in an order released on Jan. 14, 2022. The case concerns whether veterans may challenge U.S. Department of Veterans Affairs (VA) decisions based on regulations that are found to be in violation of the plain text of governing statutes. If the U.S. Supreme Court rules that veterans may challenge VA decisions based on regulations that are later found to be invalid, veterans whose disability claims were denied on those grounds may seek to have the agency revise its decisions.

The VA denied Kevin George’s 1970s disability claim based on a regulation that did not require the agency to prove that his military service did not aggravate his condition. Decades later, a court ruled that the regulation was invalid because it violated the unambiguous text of the relevant statute. George sought to have the VA reconsider his claim following the court ruling, arguing that reliance on the faulty regulation constituted “clear and unmistakable error” (CUE).

The Federal Circuit held that George could not show that the VA committed CUE in his case because the agency applied the law as it was understood at the time. George appealed to the U.S. Supreme Court, arguing that when federal courts interpret an unambiguous statute they establish what the law always meant instead of changing the meaning.

The U.S. Supreme Court is set to schedule oral argument in the case during its October 2021-2022 term.

Additional reading:

U.S. Supreme Court to decide whether federal courts have jurisdiction over challenges to the structure of the Federal Trade Commission

By Jace Lington

In Federal

February 14, 2022 at 11:01 AM

The U.S. Supreme Court agreed to hear Axon Enterprise, Inc. v. Federal Trade Commission in an order released on Jan. 24, 2022. The case concerns whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission (FTC) if plaintiffs have not first raised such challenges during agency adjudication proceedings. If the U.S. Supreme Court rules in favor of Axon, then people may challenge administrative agencies in federal court without first going through administrative proceedings.

The dispute that led to this case began when Axon Enterprise, Inc., a police body camera company, acquired a competitor in 2018 and the FTC opened an antitrust investigation. The FTC ordered Axon to undo the acquisition and to give the competitor company Axon’s intellectual property.

Axon sued, arguing that the FTC violated the company’s due process rights, that the FTC’s structure violates Article II of the U.S. Constitution by providing improper insulation from the president, and that Axon’s acquisition did not violate antitrust law.

A district court and the United States Court of Appeals for the Ninth Circuit both ruled that when Congress created the FTC’s administrative review procedures it implied that district courts did not have authority to review constitutional challenges to the agency before the agency considered those challenges through adjudication.

The U.S. Supreme Court is set to schedule oral argument in the case during its October 2022-2023 term.

Additional reading:

U.S. Supreme Court to determine the regulatory jurisdiction of the EPA under the Clean Water Act

By Jace Lington

In Federal

February 14, 2022 at 10:51 AM

The U.S. Supreme Court agreed to hear Sackett v. Environmental Protection Agency in an order released on Jan. 24, 2022. The case concerns the proper test for determining whether wetlands are “Waters of the United States” under the Clean Water Act (CWA). If a majority of justices interpret the CWA in the same way, then the Environmental Protection Agency (EPA) and federal courts might know more about how to decide what land is subject to regulation.

The dispute that led to this case began when Chantell and Michael Sackett purchased a residential lot near a lake in Idaho and used gravel and sand to fill the lot and get it ready for home construction. The EPA ordered the Sacketts to remove the fill and return the lot to its natural state, arguing that the lot contained wetlands subject to regulation under the CWA. The Sacketts sued in 2008 and argued that the EPA lacked jurisdiction over their property. The dispute has worked its way through the federal courts for the fourteen years following that initial lawsuit.

The United States Court of Appeals for the Ninth Circuit ruled in favor of the EPA in 2021, holding that the CWA covers the Sacketts’ property. The Sacketts appealed to the U.S. Supreme Court, asking for clarification about which wetlands are covered by the CWA.

The U.S. Supreme Court is set to schedule oral argument in the case during its October 2022-2023 term.

Additional reading:

Congressional resolution would block OSHA COVID-19 vaccine mandate

By Jace Lington

In Federal

December 8, 2021 at 11:52 AM

Companion resolutions, introduced in both houses of Congress under the Congressional Review Act (CRA), aim to block a mandate issued by the Occupational Safety and Health Administration that directs large employers to require employees to get vaccinated against COVID-19 or to submit to regular testing and face covering.

Representative Fred Keller (R-Penn.) sponsored the resolution in the U.S. House on Nov. 17. The House resolution had 206 cosponsors, all from the Republican Party, as of Dec. 3.

On the other side of Capitol Hill, Senator Mike Braun (R-Ind.) introduced an identical resolution, also on Nov. 17. The Senate resolution had 50 cosponsors, including all of the senators from the Republican Party and Sen. Joe Manchin (D-W.Va.), as of Dec. 3.

The Congressional Review Act is a federal law passed in 1996 that creates a 60 day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule. Both houses of Congress have to pass a resolution disapproving of the OSHA mandate and President Biden would then have to sign that resolution into law to block the mandate.

Since the law’s creation in 1996, Congress has used the CRA to repeal 20 rules published in the Federal Register. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency.

Congress ultimately repealed 16 rules in total using the CRA during the Trump administration and repealed 3 more at the beginning of the Biden administration.

Additional reading:

Biden signs three Congressional Review Act bills repealing Trump-era rules

By Jace Lington

In Federal

July 2, 2021 at 11:18 AM

Image of the south facade of the White House.

President Joe Biden (D) signed three Congressional Review Act (CRA) bills on June 30, reversing three administrative rules implemented near the end of the Donald Trump (R) administration.

Signing these bills brings the total number of rules repealed under the CRA to 20. These CRA bills are also the first Congress has used to reverse regulatory actions taken by a Republican president.

The first bill, S.J.Res.13, reversed a Trump-era Equal Employment Opportunity Commission (EEOC) rule that changed what information the agency would share with companies accused of discrimination. It passed 219-210 in the U.S. House of Representatives with Democrats voting in favor and Republicans voting against it. In the U.S. Senate, the resolution passed 50-48 with 48 Democrats and two independents in favor and 48 Republicans opposed.

The second bill, S.J.Res.14, reversed a Trump-era Environmental Protection Agency (EPA) methane rule and restored methane emissions standards set during the Barack Obama (D) administration. It passed 229-191 in the U.S. House with 217 Democrats and 12 Republicans voting in favor and 191 Republicans voting against it. In the U.S. Senate, the resolution passed 52-42 with 47 Democrats, three Republicans, and two independents voting in favor while 42 Republicans voted against it.

The third bill, S.J.Res.15, reversed a Trump-era U.S. Comptroller of the Currency (OCC) rule that changed regulations governing banks that give money to third-parties to lend to borrowers. It passed 218-208 in the U.S. House with 217 Democrats and one Republican voting in favor and 208 Republicans voting against it. In the U.S. Senate, the resolution passed 52-47 with 47 Democrats, 3 Republicans, and two independents voting in favor while 47 Republicans voted against it.

The Congressional Review Act is a federal law passed in 1996 that creates a 60 day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule.

The law defines days under the CRA as days where Congress is in continuous session, so the estimated window to block any end-of-term regulatory activity from the Trump administration was between Feb. 3, and April 4, 2021. Congress had until then to introduce CRA resolutions to block regulatory activity that occurred between Aug. 20, 2020, and Jan. 3, 2021.

Since the law’s creation in 1996, Congress has used the CRA to successfully repeal 20 rules published in the _Federal Register_. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. Congress ultimately repealed 16 rules in total using the CRA during the Trump administration.

To learn more about the CRA or its use during the Biden administration see here:

Additional reading:

Link to remarks from the president while signing the bills:

Remarks

U.S. Supreme Court rules Federal Housing Finance Agency has unconstitutional structure

By Jace Lington

In Federal

June 28, 2021 at 11:07 AM

In Collins v. Yellen, the U.S. Supreme Court held that restrictions on the president’s authority to remove the director of the Federal Housing Finance Agency (FHFA) violated the separation of powers. In its June 23 decision, the court also rejected the argument that the FHFA actions at issue in the case went beyond the agency’s legal authority.

Justice Samuel Alito delivered the opinion of the court, writing that the Housing and Economic Recovery Act (HERA) blocks shareholders from challenging FHFA decisions in court since the agency acted within the bounds of its powers. However, he also wrote that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” The end of the opinion says that FHFA officers were properly appointed but that lower courts should resolve whether the unconstitutional restriction on the president’s removal power inflicted harm that gives the shareholders a right to request relief in federal court.

Justice Clarence Thomas wrote a concurring opinion arguing that actions taken by federal officials are not necessarily unlawful just because a restriction on the president’s removal power over them is unlawful in the abstract.

Justice Neil Gorsuch wrote an opinion concurring in part in which he argued that the distinction between unconstitutionally _appointed_ officials and unconstitutionally _insulated_ officials should not prevent the court from ruling that an official acted without constitutional authority.

Justice Elena Kagan wrote an opinion concurring in part and concurring in the judgment and Justices Stephen Breyer and Sonia Sotomayor joined part II of her opinion. Kagan agreed with the majority that the FHFA did not exceed the limits of its powers, but she only agreed to hold the agency structure unconstitutional out of respect for precedent. Part II of her opinion agreed with the majority that it would be right to undo the FHFA’s actions only if the president’s inability to fire the director affected those actions.

Justice Sonia Sotomayor wrote an opinion concurring in part and dissenting in part, joined by Justice Breyer. Sotomayor agreed with the parts of the majority opinion upholding the FHFA’s actions under the HERA and discussing potential remedies following remand of the case. Regarding the constitutional question, she argued that the court misapplied the precedent from Seila Law (2020). She wrote, “The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress.”

The court’s decision to hold the structure of the FHFA unconstitutional articulated limits on the kinds of administrative agencies Congress may create and reaffirmed the court’s decision in Seila Law. Each of the Justices’ opinions referenced arguments from the debate surrounding presidential control over administrative officials across the federal government.

The case was consolidated with Yellen v. Collins.

To learn more about the case or executive control of agencies see here:

Additional reading:

Link to the U.S. Supreme Court decision:

Collins v. Yellen decision

U.S. Supreme Court: Constitution requires more supervision over administrative patent judges from Patent and Trademark Office director

By Jace Lington

In Federal

June 23, 2021 at 2:05 PM

In United States v. Arthrex, the U.S. Supreme Court held that the Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without more supervision from higher-level agency officials. In its June 21 decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from reviewing APJ decisions unilaterally.

Chief Justice John Roberts delivered the opinion of the court. Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined parts I and II of his opinion, which held that the director of the PTO improperly lacked direct review power over APJ decisions, giving them power that conflicted with the “design of the Appointments Clause ‘to preserve political accountability.’”

Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett joined part III of Roberts’ opinion and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan concurred with the result. In part III, the court blocked enforcement of the patent statute at issue “to the extent that its requirements prevent the Director from reviewing final decisions rendered by APJs.”

Justice Neil Gorsuch wrote an opinion concurring in part and dissenting in part. He agreed with the majority opinion about the relation of the Appointments Clause to APJs but rejected the idea that the court had the power to sever (remove) portions of statutes when they violate the constitution.

Justice Stephen Breyer wrote an opinion concurring in part and dissenting in part, joined by Justices Sonia Sotomayor and Elena Kagan. Breyer agreed with parts I and II of Justice Clarence Thomas’ dissenting opinion but agreed to go along with the majority’s remedy in the case, to make Patent Trial and Appeal Board (PTAB) decisions reviewable by the director of the PTO.

Justice Clarence Thomas wrote a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in parts I and II, arguing that the court ruled “for the very first time” that “Congress violated the Constitution by vesting the appointment of a federal officer in the head of a department.” Thomas argued that neither court precedent nor the Appointments Clause requires the U.S. Senate to confirm officers inferior to two officers below the president.

The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office. Each of the Justices’ opinions referenced arguments from the debate surrounding presidential control over other administrative officials across the federal government.

The case was consolidated with Smith & Nephew Inc. v. Arthrex Inc. and Arthrex Inc. v. Smith & Nephew Inc.

Additional reading:

Article II, United States Constitution

Oil States Energy Services v. Greene’s Energy Group

Free Enterprise Fund v. Public Company Accounting Oversight Board

Judicial review

Administrative state

Link to the U.S. Supreme Court decision:

United States v. Arthrex,

Unanimous U.S. Supreme Court rules in favor of pre-enforcement challenge against IRS regulation

By Jace Lington

In Federal

May 19, 2021 at 12:20 PM

The U.S. Supreme Court ruled unanimously in CIC Services v. Internal Revenue Service that CIC Services, a risk management consulting firm, may challenge an IRS records reporting regulation without first violating the new regulation and paying a tax penalty.

At issue was whether the Anti-Injunction Act (AIA), a federal law that bars lawsuits to prevent the assessment or collection of taxes, blocked CIC’s challenge in this case.

Elena Kagan delivered the opinion of the court on May 17, arguing that a “suit to enjoin a requirement to report information is not an action to restrain the ‘assessment or collection’ of a tax, even if the information will help the IRS collect future tax revenue.” For the court, that distinction meant that the AIA did not block challenges to such reporting requirements.

Justice Sonia Sotomayor wrote a concurring opinion arguing that the ruling in CIC may not apply to cases brought by individual taxpayers. Justice Brett Kavanaugh also wrote a concurring opinion, arguing that the CIC decision narrowed earlier court precedent about the AIA in a way he supported.

The U.S. Supreme Court sent the case back to the circuit court for further proceedings.

To learn more about the case, see here:

CIC Services v. Internal Revenue Service

Additional reading:

Link to the U.S. Supreme Court opinion:

https://www.supremecourt.gov/opinions/20pdf/19-930_d1o3.pdf

U.S. Supreme Court dismisses case challenging regulations related to abortion under Title X family planning program

By Jace Lington

In Federal

May 19, 2021 at 12:16 PM

The U.S. Supreme Court dismissed American Medical Association v. Becerra in its order list published on May 17. The case concerned whether the U.S. Department of Health and Human Services (HHS) violated the Administrative Procedure Act (APA) and federal healthcare laws when it issued a 2019 rule that placed abortion-related restrictions on healthcare providers receiving federal funds under a Title X family planning program.

The court’s order dismissing the case stated that the Joe Biden (D) administration had filed a letter saying that it would enforce the challenged regulations outside the state of Maryland while it worked through the notice and comment rulemaking process to override them. The administration said it aimed to have a new final rule published early in the fall of 2021 so that it could go into effect before the 2022 Title X funding announcement.

The court also rejected requests from 19 states and the American Association of Pro-Life Obstetricians & Gynecologists to intervene to defend the rule.

The case was consolidated with Oregon v. Cochran and Cochran v. Mayor and City Council of Baltimore, which were also dismissed.

To learn more about the case or the Administrative Procedure Act see here:

Additional reading:

Link to the U.S. Supreme Court order:

https://www.supremecourt.gov/orders/courtorders/051721zor_6537.pdf

Link to the docket for _AMA v. Becerra_:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-429.html

Link to the letter from the Biden administration:

https://www.supremecourt.gov/DocketPDF/20/20-429/177132/20210503144133267_20-429%20Am%20Med%2020-454%20and%2020-539.pdf