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Jace Lington

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

Nevada voters reject ballot measure that would have increased legislative control over state board of regents

On November 3, Nevada voters chose not to adopt Nevada Question 1, a ballot measure that would have given the state legislature more control over the Nevada State Board of Regents. The Board of Regents is an elected executive agency that manages Nevada’s higher education system.

According to the 2017 legislation that introduced the ballot measure, the Board of Regents “has, at various times, relied on its constitutional status and its authority to control and manage the affairs of the State University as a defensive shield and cloak against the people’s legislative check of accountability,” and has “taken actions that have hindered, thwarted or undermined the Legislature’s investigation, review and scrutiny of the institutions, programs and operations of the Nevada System of Higher Education.”

The ballot measure would have removed references to the Board of Regents from the Nevada Constitution to ensure that the agency only uses authority derived from statutes passed by the legislature.

Supporters of the measure, like State Assemblyman Jim Wheeler (R), argued, “Question 1 simply makes the Board of Regents a statutory body, subject to checks and balances—an important American principle.” 

Opponents of the measure, like Board of Regents Member Laura E. Perkins, argued, “There’s no numbers or positive proof that the system that may or may not come out of this is better than the system that we have now.”

Questions about legislative control of administrative agencies often involve the nondelegation doctrine, one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. The nondelegation doctrine is a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities.

To learn more about the ballot measure or the nondelegation doctrine, see here:

Additional reading:

Text of the resolution:

Assembly Joint Resolution No. 5

Source of Wheeler quote:

Jim Wheeler: Vote for Question 1, reform higher education

Source of Perkins quote:

The Indy Explains: Question 1, a measure that would strike the Board of Regents from the Constitution



Ballotpedia study shows that 25 state APAs and constitutions specify qualifications for administrative agency leaders

Banner with the words "The Administrative State Project"

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 25 state APAs and constitutions specify qualifications for administrative agency leaders and the other half of the states do not specify any required qualifications as of November 2020. 

Administrative agency leaders are those who direct the activities of state agencies. State requirements for agency leaders vary but some require leaders to be over a certain age, be U.S. citizens, have relevant professional experience, or have special certifications.

To learn more about Ballotpedia’s study, see here: 

Agency dynamics: States that specify qualifications for administrative agency leaders

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

Administrative state

Additional reading:



U.S. Supreme Court agrees to hear Appointments Clause challenge to Social Security Administration ALJs

Image of the front of the United States Supreme Court building.

On November 9, the U.S. Supreme Court agreed to hear Carr v. Saul, a case involving the president’s appointment and removal power and whether people may raise Appointments Clause arguments in court that they did not make during administrative proceedings.

The Social Security Administration (SSA) denied Willie Carr’s application for Social Security disability benefits and rejected his appeals. While his appeal in federal court was pending, the U.S. Supreme Court decided Lucia v. SEC, in which the court held that administrative law judges (ALJs) working for the Securities and Exchange Commission (SEC) were improperly appointed. Carr added to his appeal in federal court the argument that the SSA ALJ who decided his benefits case was improperly appointed. 

A district court in Oklahoma ruled in Carr’s favor, but the 10th Circuit reversed the district court, arguing that Carr had to have made his Appointments Clause challenge during proceedings at the SSA and could not raise the issue for the first time in federal court. Now, the U.S. Supreme Court will decide whether people must raise issues during administrative proceedings before being allowed to ask courts to weigh in on them during judicial review.

The Appointments Clause of the U.S. Constitution gives the president the power, with the advice and consent of the U.S. Senate, to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and other officers of the United States. The clause allows Congress to give authority to the president alone, courts, or department heads to appoint inferior officers.

Debates over the extent of the appointment and removal power and how it applies to those who work in federal agencies are part of a broader debate about executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

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

Five pillars of the administrative state: Executive control of agencies

Additional reading:



Legislation would block Trump executive order to change civil service classifications

On Oct. 27, Rep. Gerry Connolly (D-Va.) introduced the Saving the Civil Service Act (H.R. 8687) to block President Donald Trump’s Executive Order 13957.

The executive order, issued on Oct. 21, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions and make it easier for agency management to remove poor-performing employees.


“The executive order would erode due process protections for civil service employees,” Connolly, along with Rep. Carolyn Maloney (D-N.Y.) said in a letter that was signed by other members of the Democratic caucus. “It would expedite the hiring of Trump loyalists and place them in roles best served by career civil servants.”

The text of the executive order Trump signed reads: “Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions. High performance by such employees can meaningfully enhance agency operations, while poor performance can significantly hinder them.”

The debate over the executive order to change civil service classifications is part of a larger debate over executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. 

Executive control is primarily exercised through appointment and removal power — the authority of an executive to appoint and remove officials in the various branches of government.

A scholarly debate in this area concerns the president’s removal power: The president has the authority to remove his appointees from office, for example, but he can only fire the heads of independent federal agencies with a cause.

U.S. Representative Carolyn Maloney (D-N.Y.) co-sponsored the Saving the Civil Service Act and the bill was referred to the House Committee on Oversight and Reform.

To learn more about executive control of agencies, see here.

Additional reading:



Ballotpedia study shows that 12 state APAs define what qualifies as a guidance document

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A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 12 state APAs include provisions that define what qualifies as a guidance document and the other 38 states do not have provisions in their APAs or constitutions defining guidance as of September 2020. 

Guidance is a term 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 typically clarify and affect how agencies administer regulations and programs. However, they are not legally binding in the same way as rules made using the rulemaking procedures established by a state’s Administrative Procedure Act.

The survey about guidance in the states is one of several about administrative agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

Additional reading:



U.S. Senate rejects CRA resolution to block changes to the Community Reinvestment Act

On October 19, the U.S. Senate rejected a Congressional Review Act (CRA) resolution to block a new banking rule issued by the Office of the Comptroller of the Currency (OCC).

The resolution, passed by the U.S. House in June, failed on a procedural vote of 48 to 43 in the U.S. Senate. Democratic members of the Senate, Susan Collins (R-Maine), and both independent senators voted in favor of the resolution. The other Republican senators voted nay. Four Republican senators and five Democratic senators did not vote.

Congresswoman Maxine  Waters (D-Calif.), who sponsored the resolution to block the rule in the U.S. House, said in a press release after the U.S. Senate vote, “Senate Republicans have given a green light to modern day redlining […] which will result in harm to low- and moderate-income communities across the nation.”

According to former Comptroller of the Currency Joseph M. Otting, the final rule improves Community Reinvestment Act regulations “by clarifying what qualifies for CRA consideration, updating how banks define their assessment areas, evaluating bank CRA performance more objectively, and making the entire process more transparent and timelier. The final rule’s framework will increase support to small business, small and family-owned farms, Indian Country, and distressed areas, and it accommodates banks of all sizes and business models.”

The Congressional Review Act 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 it to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

The OCC rule went into effect on October 1, 2020. 

Sign up today for our Learning Journey on the Congressional Review Act:

Journey: Congressional Review Act

Additional reading:



U.S. Supreme Court agrees to hear challenge to DHS ‘remain in Mexico’ policy

On October 19, the U.S. Supreme Court agreed to hear Wolf v. Innovation Law Lab. The case involves whether the U.S. Department of Homeland Security (DHS) properly implemented a policy called the Migrant Protection Protocols (MPP). The MPP requires people seeking asylum in the United States who travel from a third country through Mexico to return to Mexico while U.S. officials process their requests.

Opponents argue that the MPP violates federal immigration law and international immigration treaties. They also claim that DHS should have gone through notice-and-comment procedures before putting the program into practice.

Supporters of the MPP argue that DHS had the legal authority to make the policy change and that the policy was a general statement of policy, or guidance, exempt from notice-and-comment requirements. They also argue that a district court’s decision to block the policy from going into effect using a universal preliminary injunction was overbroad. 

Additional reading:

Link to the October 19 SCOTUS order list

Link to the U.S. Government petition for certiorari

Link to the Ninth Circuit opinion



Ballotpedia study finds that 36 state APAs limit ex parte communications between hearing officers and the parties involved in agency adjudication

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 36 state APAs limit ex parte communications between hearing officers and the parties involved in adjudication, as of October 2020. No state constitutions restrict contact between agency hearing officials and parties in a case.

Ex parte communications are any form of contact between a party to an adjudication and the official conducting the hearing without the knowledge or consent of the other party to the case. Adjudication proceedings are 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 adjudication procedures provides insight into due process procedural rights of citizens at the state level, 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: State that limit ex part communications between hearing officers and the parties involved in adjudication

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

Additional reading:



U.S. Supreme Court agrees to hear Appointments Clause challenge to administrative patent judges

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On October 13, the U.S. Supreme Court agreed to hear United States v. Arthrex Inc., a case involving the president’s appointment and removal power and whether administrative patent judges (APJs) are principal officers of the United States who must be appointed by the president and confirmed by the U.S. Senate.

After losing a patent dispute before three APJs, Arthrex, Inc. appealed their decision to the U.S. Court of Appeals for the Federal Circuit. Arthrex argued that the APJs were principal officers and that allowing the secretary of commerce to appoint them violated the Appointments Clause in Article II of the U.S. Constitution. The Federal Circuit ruled in Arthrex’s favor, holding that the removal protections APJs enjoy as members of the federal civil service makes them principal officers who must be appointed by the president, not the secretary of commerce.

To resolve what they saw as an unconstitutional process, the Federal Circuit ruled that federal removal protections could not apply to APJs moving forward. The court’s opinion states that making the APJs removable at-will changes them into inferior officers and allows the secretary of commerce to appoint them.

The U.S. government appealed the decision of the Federal Circuit. Former Solicitor General Noel Francisco argued that the U.S. Supreme Court should review the case because the Federal Circuit’s decision found “a constitutional infirmity in the statutory framework that governs more than 200 agency adjudicators, in an agency that administers intellectual-property rights affecting vast swaths of the Nation’s economy.” He also argued that the Federal Circuit was wrong to conclude that APJs were principal officers that needed to be appointed by the president and confirmed by the U.S. Senate.

The Appointments Clause of the U.S. Constitution gives the president the power, with the advice and consent of the U.S. Senate, to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and other officers of the United States. The clause allows Congress to give authority to the president alone, courts, or department heads to appoint inferior officers.

Debates over the extent of the appointment and removal power and how it applies to those who work in federal agencies are part of a broader debate about executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about the case or the appointment and removal power, see here:
United States v. Arthrex Inc.
Appointment and removal power (administrative state)

Additional reading:
Five pillars of the administrative state: Executive control of agencies
Arguments in favor of strong executive appointment and removal power
Arguments against strong executive appointment and removal power
Reform proposals related to executive appointment and removal power
List of scholarly work pertaining to executive appointment and removal power

Link to the October 13 SCOTUS order list:
https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf

Link to the U.S. Government petition for certiorari:
https://www.supremecourt.gov/DocketPDF/19/19-1434/146330/20200625125505259_19-___%20-%20USA%20v.%20Arthrex%20%20USA%20v.%20Polaris%20Petition.pdf

Link to the Federal Circuit opinion:
https://casetext.com/case/arthrex-inc-v-smith-nephew-inc-2021



U.S. Supreme Court declines to hear case challenging Chevron deference

On October 5, the U.S. Supreme Court rejected a challenge against Chevron deference brought by the Children’s Hospital Association of Texas. The association had asked whether courts should give Chevron deference to agency legal interpretations that are different from previous agency interpretations.

Chevron deference is an approach to judicial review that compels federal courts to yield to a federal agency’s reasonable interpretation of an ambiguous or unclear statute instead of using the courts’ own interpretation. Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

The challenge to Chevron came out of a decision issued by the U.S. Court of Appeals for the D.C. Circuit.

The association argued in its petition to the U.S. Supreme Court that the D.C. Circuit should not have upheld the rule under Chevron. The petition says, “the court of appeals chose to ‘skip’ Chevron step one, brushed aside canons of statutory construction, and looked past what it acknowledged was a legal error in a key premise of the agency’s rulemaking—the agency’s insistence that its new regulation merely clarified, and was consistent with, existing policy. In numerous ways, this ruling conflicts with decisions from other circuits and this Court.

Judge Karen Henderson, a George H.W. Bush appointee, wrote the opinion for the D.C. Circuit saying, “The familiar Chevron framework guides our review.” She held that the statute was clear, so the court needed only to decide whether the agency’s interpretation was reasonable. Henderson wrote that the rule was consistent with the Medicaid law and upheld it.

Since the U.S. Supreme Court denied review of the case, the 2019 decision of the D.C. Circuit will remain in effect.

To learn more about Chevron deference or judicial deference, see here:



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