Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at agricultural relief in Minnesota and Maryland, gathering limits in Wisconsin, mask mandates, and more. Want to know what happened Friday? Click here.
Since our last editionWhat is open in each state? For a continually updated article on reopening status in all 50 states, click here.
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Daily feature: Face coveringsWe last looked at face coverings in the Oct. 12 edition of the newsletter. Since then, no states have adopted a new statewide public mask mandate or let a face-covering requirement expire. Additional activityIn this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.
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Final debate topics include COVID-19, race, national security
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Documenting America’s Path to Recovery: October 16, 2020
Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at new restrictions in Nebraska and New Mexico, the extension of the state of emergency in Vermont, travel restrictions, and more. Want to know what happened yesterday? Click here.
The next 72 hoursWhat is changing in the next 72 hours?
Since our last editionWhat is open in each state? For a continually updated article on reopening status in all 50 states, click here.
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Daily feature: Travel restrictionsEvery Friday, we take a closer look at the restrictions governors and state agencies have placed on interstate travelers, including a recap of the week’s travel-related news. To see our full coverage of travel restrictions enacted in response to the coronavirus pandemic, click here.
OverviewTo date, 25 states issued at least one executive order restricting interstate travel. Of the 25 executive orders governors or state agencies issued restricting out-of-state visitors, at least 14 have been rescinded. Eleven states have active travel restrictions. Weekly recap
Additional activityIn this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.
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Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees
Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees
On Oct. 8, attorneys for an Ohio state employee petitioned the U.S. Supreme Court to take up his class-action lawsuit, in which he is seeking refunds for the dues he and other non-member employees were required to pay to the union representing their workplace.
Who are the parties to the suit?
The plaintiff is Nathaniel Ogle, an employee of the Ohio Department of Taxation. Attorneys from the National Right to Work Legal Defense Foundation (NRTWLDF) are representing Ogle. NRTWLDF describes itself as a nonprofit whose “mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.”
The defendant is the Ohio Civil Service Employee Association (OCSEA), the exclusive bargaining representative for Ohio state employees. OCSEA is an affiliate of the American Federation of State, County, and Municipal Employees. According to its website, OCSEA represents roughly 30,000 state and local government employees.
What is at issue?
Ogle, who began working for the state in 2011 and was never a dues-paying member of OCSEA, was required to pay fees to support non-political union activities, including collective bargaining, contract administration, and grievance arbitration. This was in keeping with the U.S. Supreme Court’s 1977 ruling in Abood v. Detroit Education Association, in which the court upheld the constitutionality of these fees, which are commonly referred to as either agency or fair-share fees.
However, on June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, overturning the Abood precedent. The court ruled that public-sector unions cannot compel non-member employees to pay agency fees.
On Oct. 15, 2018, Ogle filed a class-action lawsuit against OCSEA in the U.S. District Court for the Southern District of Ohio. Citing Janus, Ogle’s attorneys argued that “OCSEA’s seizure of fair-share fees from Ogle, and from other employees who did not affirmatively consent to paying such fees prior to their exaction, violated their First Amendment rights.” His attorneys said that, in light of Supreme Court decisions preceding Janus, “OCSEA should have known that its seizure of fair-share fees from unconsenting employees violated their First Amendment rights.” They asked that the court “refund with interest all fair-share fees that were unconstitutionally extracted from Ogle and his fellow class members.”
How have the lower courts ruled?
On July 17, 2019, Judge George Smith granted the defendants’ motion to dismiss the lawsuit, finding that the union had acted in good faith according to the Abood precedent and was not liable to refund agency fees paid before Janus. Smith is a Ronald Reagan (R) appointee.
Ogle appealed Smith’s ruling to the U.S. Court of Appeals for the Sixth Circuit. A three-judge panel unanimously affirmed Smith’s decision. The panel included Judges Jeffrey Sutton, John K. Bush, and Chad Readler. Sutton is a George W. Bush (R) appointee, and Bush and Readler are Donald Trump (R) appointees.
What comes next?
On Oct. 14, the Supreme Court added Ogle v. Ohio Civil Service Employees Association to its schedule for consideration. A response from the defendants is due Nov. 13.
Ogle is the fifth suit of its kind pending before the high court. The other four include Casanova v. International Association of Machinists, Janus v. AFSCME (not to be confused with the 2018 Janus decision), Danielson v. Inslee, and Mooney v. Illinois Education Association.
What we’re reading
- The Center Square, “Analysis: California public sector unions made $921 million in revenue in 2018,” Oct. 14, 2020
- Politico, “Democrats’ coming civil war over police unions,” Oct. 14, 2020
- New York Daily News, “Mayor de Blasio ordered to pay half of $900 mill NYC owes teachers now, rest later in arbitration ruling,” Oct. 9, 2020
The big picture
Number of relevant bills by state
We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.
Number of relevant bills by current legislative status
Number of relevant bills by partisan status of sponsor(s)
Recent legislative actions
- Vermont S0254: This bill would require public employers to provide unions with employee contact information. It would provide for the automatic deduction of union dues from members’ paychecks, and it would permit unions to meet with new employees to provide them with information regarding union membership.
- Democratic sponsorship.
- Governor signed into law Oct. 12.
Three individuals linked to Biden campaign travel test positive for COVID-19
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| October 16, 2020: Three individuals linked to Biden campaign travel tested positive for COVID-19. Donald Trump, the Republican National Committee, and joint fundraising committees raised $248 million in September.
“Wisconsin is proof that politicos have short memories. In 2004, Democratic presidential candidate John Kerry carried Wisconsin by just 0.4 percentage points — making it the closest state in the country. Four years earlier, it had been even closer — Democrat Al Gore won the Badger State by just 5,708 votes, or 0.2 points. But Democrat Barack Obama really connected with Wisconsin voters, winning the state by 14 points in 2008 and 7 points in 2012. Going into 2016, that contributed to a sense that Wisconsin was a safe bet for Hillary Clinton — part of the mythical ‘blue wall.’ It had, after all, voted Democratic in seven consecutive presidential elections by that point. We all know what happened next: Now-President Trump carried Wisconsin by 0.8 percentage points, reaffirming its status as a swing state. It was the third time in five presidential elections that Wisconsin was decided by less than a point.” – Nathaniel Rakich, FiveThirtyEight Election Updates
What We’re Reading Flashback: October 16, 2016 The New York Times reported that Donald Trump began October 2016 with $75 million in cash on hand, while Hillary Clinton had roughly $150 million. |
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Documenting America’s Path to Recovery: October 15, 2020
Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Hawaii’s new testing program for travelers, changes in county risk designations in North Dakota, a featured lawsuit, and more. Want to know what happened yesterday? Click here.
The next 24 hoursWhat is changing in the next 24 hours?
Since our last editionWhat is open in each state? For a continually updated article on reopening status in all 50 states, click here.
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Daily feature: Featured lawsuitOnce a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving indoor capacity restrictions in Wisconsin. Tavern League of Wisconsin, Inc. v. PalmOn Oct. 14, Judge John M. Yackel of Wisconsin’s Sawyer County Circuit Court temporarily blocked emergency indoor capacity restrictions issued in response to an uptick in statewide COVID-19 infections. What was at issue?Upon Gov. Tony Evers’ (D) direction, Wisconsin Health Secretary Andrea Palm issued Emergency Order #3, limiting indoor public gatherings to no more than 25% capacity, with certain limitations. In its complaint, the Tavern League of Wisconsin argued Executive Order #3 “purports to regulate businesses and public gatherings in a manner nearly identical to portions of Emergency Order #28,” which the Wisconsin Supreme Court struck down on May 13. How did the court rule, and what comes next?In his order, Yackel wrote that Evers and his administration “are immediately restrained, until further order from the Court, from enforcing Emergency Order #3.” Britt Cudaback, a representative for Evers, said: “This is a dangerous decision that leaves our state without a statewide effort to contain this virus.” Yackel scheduled oral arguments for Oct. 19 to discuss whether the temporary injunction should be lifted or extended. |
Biden, Trump participate in competing town halls rather than debate
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Documenting America’s Path to Recovery: October 14, 2020
Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at upcoming coronavirus restrictions in New Mexico, to-go cocktails in Ohio, a featured story from the 1918 influenza pandemic, and more. Want to know what happened yesterday? Click here.
The next 24 hoursWhat is changing in the next 24 hours?
Since our last editionWhat is open in each state? For a continually updated article on reopening status in all 50 states, click here.
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Daily feature: The 1918 influenza pandemicEvery Wednesday, we feature a newspaper story written during the 1918 influenza pandemic that illustrates how the country contended with a national health emergency in the midst of an election year. To see more stories from 1918, click here. On Sept. 30, the Philadelphia Evening Bulletin reported on the debate in New Jersey over closing schools in the midst of the influenza pandemic.
Additional activityIn this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.
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Documenting America’s Path to Recovery: October 13, 2020
Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at new guidelines for private gatherings in California, the extension of a mask mandate in Colorado, school reopenings, and more. Want to know what happened yesterday? Click here.
Since our last editionWhat is open in each state? For a continually updated article on reopening status in all 50 states, click here.
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Daily feature: SchoolsAll 50 states closed schools to in-person instruction at some point during the 2019-2020 academic year. Beginning in May 2020, schools in certain states began to reopen. In which states are schools allowed to open? In which states are they ordered to remain closed? The current status of school reopenings is as follows:
Additional activityIn this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.
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Checks and Balances: October 2020
| The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.
This edition:In this month’s edition of Checks and Balances, we review an order from the Federal Communications Commission that moves the agency away from formal adjudication procedures; proposed rulemaking to reclassify administrative law judges in the excepted service; and new agency guidance aimed at implementing fairness principles in adjudication. At the state level, we examine the nondelegation doctrine’s role in a Michigan case challenging coronavirus-related emergency orders; a challenge to administrative due process protections in Arizona; and a Colorado case concerning deference to state agency disciplinary procedures. We also highlight a new book about the administrative state and new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining state-level sunset provisions for administrative rules. As always, we wrap up with our Regulatory Tally, which features information about the 178 proposed rules and 279 final rules added to the Federal Register in September and OIRA’s regulatory review activity. In WashingtonNew FCC order further narrows adherence to formal adjudication
OIRA directs agencies to implement fairness principles in adjudication
“a) Administrative enforcement should be prompt and fair. (b) Administrative adjudicators should be independent of enforcement staff. (c) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action. (d) All rules of evidence and procedure should be public, clear, and effective. (e) Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law. (f) Administrative enforcement should be free of improper Government coercion. (g) Administrative enforcement should be free of improper Government coercion. (h) Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond. (i) Administrative enforcement should be free of unfair surprise. (j) Agencies must be accountable for their administrative enforcement decisions.”
Office of Personnel Management proposes to reclassify ALJs within civil service
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In the statesNondelegation doctrine resurfaces in challenge to Michigan coronavirus orders
Administrative due process deficits challenged in Arizona
Colorado Supreme Court to consider deference to agency disciplinary decisions
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New book: Law & Leviathan: Redeeming the Administrative State, by Cass Sunstein and Adrian VermeuleAdministrative law scholars Adrian Vermeule and Cass Sunstein released a new book, Law & Leviathan: Redeeming the Administrative State, that aims to defend the moral foundation of the administrative state. Drawing from the moral legal principles put forth by philosopher Lon Fuller, Vermeule and Sunstein argue that agency procedures that seek to enhance accountability and transparency in rulemaking and adjudication bolster the morality of the rule of law. The principles of law’s morality, according to the authors, can help settle conflicts in administrative law and support its just application. In a piece for The New York Times, the authors provide snapshots of law’s morality as applied by the courts: “In our view, courts should be taking the morality of law quite seriously. Fortunately, they often do. Indeed, many of the principles of legal morality that Professor Fuller listed have been invoked by the Roberts court in a number of domains. “The Roberts court has emphasized, for example, that agencies must follow their own rules, reducing the risk that they will make decisions on a case-by-case basis. It has also repeatedly emphasized the importance of “reliance interests,” which arise whenever people act in ways that depend on existing rules, and thus the court has worked to combat unduly rapid changes in the law. A recent example is the court’s decision on the “Deferred Action for Childhood Arrivals program, or DACA, which required the Department of Homeland Security to do more to consider the reliance interests of program participants. Right or wrong, the decision was animated by an account of law’s morality. “Law’s morality also animated some lower court decisions that invalidated Obama administration initiatives. One example is the decision that issued an injunction against the Obama administration’s initial adoption of the DACA program and the related Deferred Action for Parents of Americans program, on the ground, among others, that the administration had attempted to disguise a substantive change in the law as a mere exercise of enforcement discretion. The court claimed, in effect, that there was a mismatch between rules as announced and rules as administered.”
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Ballotpedia study shows that 11 states have sunset provisions for administrative rulesA Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 11 state constitutions or APAs contain sunset provisions for administrative rules, as of September 2020.
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Regulatory tallyFederal Register
Office of Information and Regulatory Affairs (OIRA)OIRA’s recent regulatory review activity includes:
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This Checks and Balances newsletter is part of Ballotpedia’s Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking. You can view an index of these pages here. View the pages and you will come away knowing the difference between the administrative state, the regulatory state, and the dark state—and so much more. New entries to our encyclopedia are added weekly. |
Ballotpedia also examined state APAs and constitutions that provide for regulatory review bodies. View those results 
