Jace Lington

Jace Lington is a staff writer at Ballotpedia. Contact us at

U.S. Supreme Court rules DACA ended improperly; dissenting opinion argues ruling creates double standard

In a 5-4 decision, the U.S. Supreme Court ruled in  DHS v. Regents of the University of California that the U.S. Department of Homeland Security (DHS) did not properly follow Administrative Procedure Act (APA) procedures when it sought to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program in 2017. DHS started the program in 2012 with a memo that itself did not go through the APA rulemaking process.

The court’s ruling argued that DHS failed to provide required analysis of all relevant factors associated with ending the DACA program. The majority opinion argued that rendered the decision arbitrary and capricious under the APA. The court thus remanded the issue back to DHS, which can reattempt to end the program by providing a more thorough explanation for its decision.

Chief Justice Roberts delivered the majority opinion of the court saying, “The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.” Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined the full opinion. Justice Sonia Sotomayor joined most of the majority opinion, giving it the fifth vote it needed to become the official decision of the court.

Justice Sotomayor agreed with the court that DHS improperly followed the APA, but she wrote separately to argue that the court should have given those challenging the agency the opportunity to develop claims that the agency violated the equal protection guarantee of the 5th amendment to the U.S. Constitution.

In a dissenting opinion, Justice Thomas argued that an administration should be able to rescind policies not lawfully implemented: “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” He argued that the court’s decision was “an effort to avoid a politically controversial but legally correct decision.” Justices Samuel Alito and Neil Gorsuch joined Thomas’s opinion.

Justice Kavanaugh defended DHS’s reasons for ending DACA as adequate in a separate opinion. He added that the court’s decision applied precedent incorrectly when it held that a memo written by former DHS Secretary Kirstjen Nielsen came too late to provide the analysis the court said DHS needed to end the program.

Additional reading:

Pelosi press release:
Trump tweet:

Survey reveals state limits on who can challenge agency actions in court

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 42 states place limits on access to state courts to challenge agency actions.

For this survey, Ballotpedia set out to learn whether states limited who could challenge the outcome of agency adjudication actions in court. Most states allowed any aggrieved party to challenge agencies in court. Aggrieved parties include those involved in the case and anyone adversely affected by the agency’s decision.

Agency adjudication is a quasi-judicial process that takes place in the executive branch of the state government instead of the judicial branch. Often, the procedural protections associated with adjudication are different from those found in a traditional courtroom setting. State constitutional provisions declaring state courts open to those who suffer injuries might not apply to all actions by state agencies.

Anyone who suffers an injury or wrong to their person, property, or character because of an agency action might have the constitutional right to challenge that agency in the state court system. These constitutional provisions are not any more specific and do not explain who exactly has the standing to challenge the results of agency adjudication actions in court but imply broad access to the courts.

Understanding limits on access to state courts for judicial review of agency actions 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.

The procedural rights pillar refers to debates about individual due process and standing before administrative agency adjudication and enforcement actions. Procedural rights also include citizen access, agency rulemaking processes, and decisionmaking proceedings.

To learn more about Ballotpedia’s survey related to procedural rights, click here.

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

Additional reading:

Ballotpedia study examines statutes governing state-level judicial deference to agency interpretations

Two Ballotpedia surveys of all 50 state constitutions and administrative procedure acts (APAs) analyzed the different ways states approach judicial deference to administrative agencies.

Judicial deference — the principle of judicial review in which a court yields to an agency’s interpretation of a statute or regulation — is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

The first survey found that 14 states require judges to review agency actions on a de novo basis in at least some circumstances. Under de novo review, courts weigh the facts of a case and decide the meaning of laws and regulations for themselves instead of deferring to the conclusions and interpretations of administrative agencies.

In 37 states, the constitution or APA discussed judicial review but either required deference to agency actions in some cases or did not require judges to consider agency actions on a de novo basis.

The second survey found that no state constitutions or APAs set different standards for judicial deference depending on whether the court is reviewing administrative agency actions in a criminal or civil context.

While the surveys focused on the 50-state constitutions and state-level administrative procedure acts, a number of states have in recent years limited or prohibited judicial deference through legislative action and judicial decisions, as well as through citizen referenda.

Supporters of judicial deference suggest that the practice gives agencies more flexibility and allows them to apply technical expertise to policy challenges. Opponents of judicial deference argue that the practice violates the separation of powers because they believe judges who do not interpret statutes for themselves give away core powers of the judicial branch.

To learn more about Ballotpedia’s surveys related to judicial deference and state approaches and responses to judicial deference, see here:

State responses to judicial deference

Additional reading:

Trump vetoes CRA resolution that aimed to block student loan rule

On May 29, President Trump vetoed a resolution passed under the Congressional Review Act (CRA) to block a U.S. Department of Education (DOE) rule related to government forgiveness of certain student loan debt. Congress would now have to override his veto to block the rule.

In his veto message, Trump said, “Whereas the last administration promoted a regulatory environment that produced precipitous school closures and stranded students, this new rule puts the needs of students first, extends the window during which they can qualify for loan discharge, and encourages schools to provide students with opportunities to complete their educations and continue their pursuit of economic success.”

House Speaker Nancy Pelosi (D-Calif.) responded to the veto with this statement, “The House will soon vote to overturn this veto, which poses a grave harm to the financial security and futures of America’s students, particularly as America’s students are hurting more now than ever during the COVID-19 crisis.”

On January 16, 25 Democrats and six Republicans voted to pass the resolution in the U.S. House while 179 Republicans and Justin Amash (L-Mich.) voted nay. A version of the resolution passed the U.S. Senate on March 11 with 42 Democrats, 10 Republicans, and Angus King (I-Maine) voting to pass the resolution while 42 Republicans voted nay.

The DOE issued the 146-page rule in September 2019. The rule changed the process students must follow to discharge their loans and empowered the agency to collect money from schools to cover financial losses following successful student challenges. Education Secretary Betsy DeVos argued in a December 2019 press release that the new rule “ensures that taxpayers who did not go to college or who faithfully paid off their student loans do not shoulder student loan costs for those who didn’t suffer harm.”

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, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

Additional reading:

Administrative State Project

To read the text of the DOE rule, click here.
To read Trump’s Veto Message, click here.
To read Pelosi’s statement, click here.

Unanimous U.S. Supreme Court rejects appointments clause challenge to Puerto Rican debt board

On June 1, a unanimous U.S. Supreme Court ruled that the Appointments Clause of the U.S. Constitution does not require members of the Puerto Rican Financial Oversight and Management Board (FOMB) to face confirmation by the U.S. Senate.

The Appointments Clause gives the president authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These officers include ambassadors, heads of Cabinet-level departments, and federal judges. The U.S. Supreme Court ruled that because FOMB members have primarily local powers and duties that the Appointments Clause does not restrict how they are selected.

Congress created the FOMB in 2016 and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rican government. The seven-member board is made up of one member chosen at the president’s discretion and six other members selected by the president from a list written by members of Congress.

Aurelius Investment LLC and the Unión de Trabajadores de la Industria Eléctrica y Riego challenged the FOMB’s authority, arguing that board members’ appointments violated the Appointments Clause. Aurelius and the union claimed that the board members are “Officers of the United States” who must be nominated by the president and confirmed by the Senate. The board argued that because its activities are primarily local in nature its members do not qualify as “Officers of the United States.” The U.S. Supreme Court ruled in favor of the board and sent the case to the U.S. Court of Appeals for the First Circuit for further proceedings.

Justice Clarence Thomas wrote a concurring opinion arguing that the court made the right decision for the wrong reasons. He would have relied on the original public meaning of the phrase _officers of the United States_ to resolve the case.

Justice Sonia Sotomayor wrote a separate concurring opinion arguing that “territorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.” She stated that because the parties in the case did not address the implications of Puerto Rican home rule on the Appointments Clause she chose to concur in the judgment of the court.

Additional reading:

Administrative State Project

Click here to read the U.S. Supreme Court decision.

Group of states and cities sue Trump administration over rollback of Obama administration fuel efficiency standards

A group of 23 states, 4 cities, and the District of Columbia are challenging in court Trump administration efforts to change federal fuel efficiency requirements established by the Obama administration. On May 27, the group filed a lawsuit in the United States Court of Appeals for the D.C. Circuit asking the court to review new fuel efficiency standards set by federal agencies in April.

The Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) set the new standards in a final rule published in the Federal Register on April 30. The rule gives the auto industry more time to decrease how much gasoline their vehicles use and how much carbon dioxide they emit.

In a press release announcing the lawsuit, California Attorney General Xavier Beccera argued that the Trump administration rule violates the Clean Air Act and the Administrative Procedure Act (APA), and that new standards are too loose. He wrote, “The rule takes aim at the corporate average fuel efficiency standards, requiring automakers to make only minimal improvements to fuel economy—on the order of 1.5 percent annually instead of the previously anticipated annual improvement of approximately 5 percent. The rule also guts the requirements to reduce vehicles’ greenhouse gas emissions, allowing hundreds of millions of metric tons of avoidable carbon emissions into our atmosphere over the next decade.”

In a press release announcing the new fuel efficiency standards rule, the NHTSA wrote that the rule “reflects the realities of today’s markets, including substantially lower oil prices than in the original 2012 projection, significant increases in U.S. oil production, and growing consumer demand for larger vehicles.” The release quotes EPA Administrator Andrew Wheeler saying, “Our final rule puts in place a sensible one national program that strikes the right regulatory balance that protects our environment, and sets reasonable targets for the auto industry. This rule supports our economy, and the safety of American families.”

The rule is scheduled to go into effect on June 29, 2020.

Additional reading:


Link to the lawsuit:

Text of the fuel efficiency rule:

Link to Beccera’s press release:

Link to NHTSA press release:

New regulation allows U.S. Secretary of Labor to overturn agency appeal decisions

New regulations from the U.S Department of Labor (DOL) might allow the public to hold the agency more accountable for decisions it makes during adjudication.

On May 20, Secretary of Labor Eugene Scalia published a final rule that establishes a system allowing him to review cases decided by the agency Administrative Review Board (ARB) and Board of Alien Labor Certification Appeals (BALCA).

The rule empowers the secretary of labor to oversee appeals from decisions made by agency Administrative Law Judges (ALJs). ALJs are officials who preside over federal administrative hearings. By giving the secretary more responsibility for the outcome of appeals from agency hearings, the rule gives the public an official to hold accountable for agency decisions.

According to the text of the rule published in the Federal Register, previous rules created the ARB and BALCA to make intra-agency appeals decisions in the name of the secretary of labor without giving the secretary a way to review the power exercised on his or her behalf.

In an op-ed announcing the rule, Scalia argued, “Our new system allows the ARB to continue its important work deciding administrative appeals, but gives the Secretary the authority to step in when a case is wrongly decided. The new regulations also contain due process protections so the Department fairly exercises its dual roles as litigant and judge.”

Seth Harris, who worked for the DOL when the ARB was created, opposes the plan, arguing that giving the secretary review authority over appeals might bias agency decision making. “The idea that this is an impartial, quasi-judicial panel is blown to smithereens because the secretary, if he gets lobbied by one party or the other, can simply overturn what the board has decided,” Harris told Bloomberg Law.

Supporters of giving the secretary more control of appeals include David Fortney, who worked for the DOL under George H.W. Bush. Fortney told Bloomberg Law that “I think that, on its face, it sounds modest—it’s not. It is terribly important because every major program that the Labor Department administers and enforces largely goes through the ARB, and this will ensure that there aren’t rogue decisions.”

Adjudication is the way agencies resolve disputes between the agency and people or between two private parties. Through adjudication, agencies will issue an order to settle the dispute and, in some cases, set agency policy for similar cases in the future. This new rule gives the secretary of labor more power in the adjudication process.

The rule is scheduled to go into effect on June 19, 2020.

Additional reading:

Text of the final rule:

Link to Scalia op-ed:

Link to Bloomberg Law article:

Trump executive order targets regulations waived during pandemic for potential permanent repeal

On May 19, President Trump issued an executive order directing federal agencies to remove regulatory barriers to economic activity as part of a coronavirus pandemic recovery effort.

The order specifically directs agency leaders to determine whether regulations modified or waived during the pandemic should be repealed permanently. It also encourages agencies to use emergency powers to support economic recovery and to find and remove additional regulatory hurdles to job creation. According to news reports, more than 600 regulations could be affected.

Russ Vought, Acting Director of the Office of Management and Budget, stated, “If a bureaucratic rule needs to be suspended during a time of crisis to help the American people, we should ask ourselves if it makes sense to keep at all.”

U.S. Senator Ted Cruz (R-Texas), who supports the order, tweeted that “every regulation that was waived during this crisis should remain waived.” Kent Lassman, president of the libertarian Competitive Enterprise Institute, approved of the order and said, “CEI has identified dozens of regulations that were never needed and now hinder response to, and recovery from, this pandemic. Widespread repeal is necessary and on the way.”

U.S. Representative Bonnie Watson Coleman (D-N.J.), who opposes the order, tweeted that in her view the order puts workers and the environment at risk: “Step one: Remove the Inspectors General who keep an eye on wrongdoing at our federal agencies. Step two: Tell the agencies that it’s open season on measures that keep workers, consumers, and the environment safe.”

An executive order is a formal command handed down from the president to federal agencies within the executive branch. While executive orders are legally binding, they are not laws; they are instructions on how the executive branch ought to enforce the law. These instructions must line up with existing U.S. laws and the U.S. Constitution.

Executive orders are a way that presidents exercise executive control of agencies—one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

Additional reading:

Text of the executive order:

Link to CEI statement:

Link to Public Citizen statement:

COVID-19 might allow 117th Congress to block more Trump administration regulations

The coronavirus pandemic might give opponents of the Trump administration more opportunities to fight agency actions taken in the remaining months of 2020. Under the Congressional Review Act (CRA), a new Congress has 75 legislative days to overturn agency rules issued in the last 60 days of a prior session of Congress.

COVID-19 led congressional leaders to cancel business on several days when Congress would have been in session. Since the 117th Congress will begin in January, “any regulation issued by the Trump Administration between now and the end of the year will likely be subject to expedited Congressional review in the early months of 2021,” according to a National Law Review article by lawyer Robert Mangas. Mangas reported that the start date of the final 60 days of the 116th Congress would have been May 20 but with so many canceled work days, the beginning of the final 60 days might have already passed.

The president must sign CRA resolutions for them to go into effect. If Donald Trump wins re-election, opponents of agency actions taken this year would have to gather enough votes to override his veto. However, if another candidate becomes president in 2021, then rules made by agencies through most of 2020 might be vulnerable.

Administrative law scholars refer to rules adopted at the end of presidential administrations as “midnight rules.” The ticking clock of a pending leadership change, reminiscent of Cinderella’s magic disappearing at midnight, encourages executive agencies to accomplish as much of their regulatory agendas as possible before time runs out, according to Boston University School of Law professor Jack Beermann. Since 1948, agencies have made rules at a higher rate in the time between election day in November and inauguration day the following January compared with other periods.

The CRA gives Congress a chance to review midnight rules and serve as a check on the rulemaking activities of federal agencies. In the first four months of his administration, President Donald Trump signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s presidency.

Additional reading:


Maine lawsuit challenges whether voters can overturn state agency orders

A new lawsuit asks whether the Maine Constitution allows citizens to use ballot initiatives to reverse agency orders. On May 12, Avangrid Networks, Inc. asked the Cumberland County Superior Court to block a ballot initiative that aims to overturn a Maine Public Utilities Commission (PUC) decision to grant Central Maine Power Company (CMP) a permit to build new electricity transmission lines.

Opponents of the electricity project gathered enough signatures to put the ballot initiative before voters during the November 3 election but Avangrid argued that the initiative is unconstitutional.

According to Article IV of the Maine Constitution, citizens may exercise the legislative power through direct initiative. Avangrid argued that this particular initiative goes beyond an exercise of legislative authority by the people because “it would enact no law, would repeal no law, and would amend no law.” Instead of changing how the agency awards Certificates of Public Convenience and Necessity (CPCN), the ballot initiative would reverse a single PUC order granting a CPNC for the electricity project.

Avangrid argued that letting the ballot initiative move forward would violate the separation of powers provision found in Article III of the Maine Constitution. The company stated that the initiative would exercise executive authority by reversing an agency order and judicial authority by overturning a related court decision.

Additional reading: