Jace Lington

Jace Lington is a staff writer at Ballotpedia and can be reached at

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law’s creation in 1996, 17 out of the over 90,767 rules published in the Federal Register during that time have been repealed using the CRA. 13 additional attempts either failed to pass through Congress or were vetoed.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:

U.S. Supreme Court upholds deference to agency interpretations of regulations, lays out limitations

In Kisor v. Wilkie, the U.S. Supreme Court upheld Auer deference while restating the limited circumstances in which the administrative law principle applies. A principle of judicial review, Auer deference requires a federal court to yield to an administrative agency’s interpretation of an ambiguous regulation that the agency has promulgated.
The ruling in the case, about a marine veteran who challenged a U.S. Department of Veterans Affairs (VA) decision related to retroactive disability benefits, was unanimous in vacating and remanding the judgment of the Federal Circuit Court of Appeals. But justices disagreed about the future of judicial deference to agencies. The court instructed the Federal Circuit to redo the case and decide whether the application of Auer deference is appropriate.
Justice Gorsuch, who agreed to send the case back to the lower circuit, wrote a concurring opinion joined by Justices Thomas, Alito, and Kavanaugh, strongly criticizing the court for not overruling Auer deference as a doctrine.
Justice Kagan delivered the opinion of the court, which restated the following limitations on Auer deference:
1. Courts should only give Auer deference to an agency after establishing that the regulation in question is actually ambiguous. Courts must first consider the text, structure, history, and purpose of a regulation before deferring to a reasonable agency view.
2. A court must determine whether the reasonable agency interpretation of a regulation is an authoritative or official position of the agency before giving Auer deference.
3. Courts should only give Auer deference to agency interpretations based on the expertise of that agency. For questions that fall outside the regular duties of an agency, Auer deference is less appropriate.
4. The reasonable agency interpretation of an ambiguous regulation must be a “fair and considered judgment” that does not create an unfair surprise for those subject to the regulation in order to qualify for Auer deference. Courts should not defer to agency interpretations that were adopted just to help the agency during a lawsuit.

Wisconsin Supreme Court rules against Superintendent of Public Instruction, affirming the legislature can control how agencies make rules

In Koschkee v. Taylor, the Supreme Court of Wisconsin ruled 4-2 that the DPI must submit new rules to the governor for approval before they go into effect, affirming the state REINS Act, which requires new rules be sent to the governor before they can go into effect. 
Governor Tony Evers (D), then the superintendent of public instruction, and the DPI were sued for allegedly violating the state REINS Act. Evers and DPI argued that the state superintendent is a constitutional office in Wisconsin not subject to gubernatorial control under the REINS Act. They also argued that the issue was already settled in the 2016 case Coyne v. Walker, which ruled that a 2011 law did not apply to the state superintendent. Koschkee v. Taylor overruled the Coyne decision and affirmed the constitutional power of the legislature to control how agencies make rules.
Signed into law in August 2017 by Governor Scott Walker (R), the REINS Act made changes to the regulatory process in Wisconsin. It requires state agencies to submit statements of scope for proposed regulations to the governor. Governors may then approve or reject an agency’s proposal.
Based on a proposed federal law of the same name, the Wisconsin REINS Act also requires legislative authorization of major rules and allows a Joint Committee for the Review of Administrative Rules to indefinitely suspend a proposed rule.

U.S. Supreme Court sends deference case back to 4th Circuit

In PDR Network, LLC v. Carlton & Harris Chiropractic Inc., the U.S. Supreme Court ruled 9-0 that the 4th Circuit Court of Appeals needed to answer several questions before it could decide whether the Hobbs Act requires district courts to uphold agency interpretations of certain laws.
Justice Stephen Breyer wrote the majority opinion, which said that the 4th Circuit must first decide whether a 2006 Federal Communications Commission (FCC) interpretation of the Telephone Consumer Protection Act (Telephone Act) was a legislative rule, which carries the force of law, or an interpretive rule, which is non-binding. The opinion also directed the 4th Circuit to decide whether PDR Network had the chance to seek judicial review of the 2006 order before enforcement.
Justice Clarence Thomas wrote a concurring opinion arguing that this case shows why the court should reconsider precedents like Chevron v. NRDC (1984), which held that courts should defer to reasonable agency interpretations of ambiguous laws when Congress gives the agency the authority to administer those laws. Justice Kavanaugh wrote a separate concurring opinion arguing that the court was right to vacate the 4th Circuit’s judgment but that it should have also ruled that the Hobbs Act allows district courts to consider the validity of agency interpretations of law.
The case involved an incident from 2013. PDR Network, LLC sent a fax to Carlton & Harris, a West Virginia chiropractor, offering the company a free copy of the Physicians Desk Reference. Carlton & Harris sued PDR in federal court under the Telephone Act, which prohibits companies from using fax machines to send unsolicited advertisements. At issue is the definition of an unsolicited advertisement, which the FCC defined under the Telephone Act in a 2006 order.