CategoryPublic Policy

Federal Register weekly update; 2019 page total continues to trail 2018 page total

 
The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of June 3 to June 7, the number of pages in the Federal Register increased by 1,246 pages, bringing the year-to-date total to 26,738 pages. This week’s Federal Register featured a total of 588 documents, including 484 notices, seven presidential documents, 41 proposed rules, and 56 final rules.
 
Two final rules were deemed significant under E.O. 12866—meaning that they may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,288 pages for a year-to-date total of 26,832 pages. As of June 7, the 2019 total trailed the 2018 total by 94 pages.
 
The Trump administration has added an average of 1,215 pages to the Federal Register each week in 2019 as of June 7. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Tracking redistricting, electoral system, and primary system bills in state legislative sessions

More than half of the states have wrapped up their legislative sessions for the year. Here’s a summary of what actions states have taken so far on election policy.
 
  • Redistricting legislation: We’ve tracked 221 bills regarding redistricting policy. Seventeen of them have become law. Examples of enacted legislation are:
    • Mississippi JR202: Signed into law April 3, JR202 revised the boundaries of Mississippi State Senate Districts 13 and 22. The U.S. District Court for the Southern District of Mississippi had earlier ruled that District 22 constituted an illegal racial gerrymander.
    • Virginia HB2760: Signed into law March 22, HB2760 requires municipal clerks to transmit Geographic Information System (GIS) maps to local election boards, the secretary of the commonwealth, the state elections department, and the legislative services division when altering local electoral districts or precincts.
  • Electoral systems legislation: So far this year we’ve tracked 120 bills regarding electoral systems policy, addressing such issues as ranked-choice voting and the National Popular Vote Interstate Compact. Eleven of them have become law. Examples of enacted legislation are:
    • New Mexico HB55: Signed into law March 12, HB55 entered New Mexico into the National Popular Vote Interstate Compact. Member states agree to award their presidential electors to the winner of the national popular vote once states totaling at least 270 Electoral College votes have joined the compact.
    • Utah HB0277: Signed into law March 26, HB0277 amended provisions of Utah’s Municipal Alternative Voting Methods Pilot Project. Under the pilot project, municipalities can opt to conduct municipal elections using ranked-choice voting.
  • Primary systems legislation: We’ve tracked 11 bills this year regarding primary systems policy, addressing such issues as top-two primaries and open primaries. None of these 11 bills has become law. Examples of proposed legislation:
    • Maine LD114: LD114 would have established a top-two primary system for elections for the offices of U.S. senator, U.S. representative, governor, state senator, and state representative. The bill died in committee.
    • North Carolina H994: H994 proposes establishing a top-four primary system for elections for any state or congressional office. H994 also proposes establishing ranked-choice voting for general elections for these offices. The bill is currently in committee.
 
To stay up-to-date on the latest in election policy, subscribe to The Ballot Bulletin.
 


May 2019 OIRA review count; second-highest monthly review count of 2019

In May 2019, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 36 significant regulatory actions issued by federal agencies. The agency approved the intent of 34 rules while recommending changes to their content. Agencies withdrew two rules from the review process.
 
OIRA reviewed 22 significant regulatory actions in May 2018—14 fewer rules than the 36 significant regulatory actions reviewed by the agency in May 2019. During the Obama administration from 2009-2016, OIRA reviewed an average of 46 significant regulatory actions each May.
 
OIRA has reviewed a total of 147 rules so far in 2019. The agency reviewed a total of 355 significant rules in 2018 and 237 significant rules in 2017.
 
As of June 3, 2019, OIRA’s website listed 113 regulatory actions under review.
 
OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also may conflict with other regulations or with the priorities of the president.
 


U.S. Supreme Court clarifies Medicare rule change procedures

The U.S. Supreme Court ruled that the Department of Health and Human Services (HHS) must follow informal rulemaking procedures when it changes Medicare policy. In Azar v. Allina Health Services, decided June 3, 2019, the court held that HHS had to give the public notice and an opportunity to make comments before changing the way it reimburses hospitals that serve low-income Medicare patients. At issue was whether or not the change made by HHS counted as a substantive legal change that triggered the rulemaking procedures.
 
Justice Neil Gorsuch wrote the majority opinion, joined by six other justices, affirming that the reimbursement rate was a substantive change subject to notice and comment rules. Justice Stephen Breyer wrote a dissent arguing that the court should have sent the case back to the D.C. Circuit for that court to decide whether the HHS action was exempt from the procedural requirements. Justice Kavanaugh wrote the lower court opinion when he was a judge on the D.C. Circuit, so he did not participate in this case.
 


Deceased consultant’s hard drive prompts new challenge in census citizenship question case

Attorneys for plaintiffs in Department of Commerce v. New York sent a letter to Judge Jesse Furman of the United States District Court for the Southern District of New York on May 30, 2019, to highlight new evidence allegedly demonstrating that the Trump administration approved the addition of a citizenship question on the 2020 Census in order to gain a Republican electoral advantage.
 
The letter calls for Furman to consider issuing sanctions or penalties against the federal government in response to what the plaintiffs consider to be the misleading testimony of administration officials, who argued that the administration added the citizenship question to the census in order to improve enforcement of the Voting Rights Act.
 
The plaintiffs allege that documents recovered from the hard drive of the late Republican political consultant Dr. Thomas Hofeller demonstrate his influence in drafting the citizenship question. The documents include a 2015 report by Hofeller concluding that a citizenship question would give Republicans an electoral advantage as well as texts that the plaintiffs claim shows Hofeller’s involvement as a ghostwriter on an early draft of the administration’s request to include the citizenship question on the census. These findings, according to the plaintiffs, contradict the sworn testimony of administration officials arguing that the administration included the citizenship question to support Voting Rights Act enforcement.
 
A Justice Department spokesperson denied the plaintiffs’ allegations, stating that Hoffeler’s study “played no role in the Department’s December 2017 request to reinstate a citizenship question to the 2020 decennial census. These unfounded allegations are an unfortunate last-ditch effort to derail the Supreme Court’s consideration of this case.”
 
Furman scheduled a hearing on June 5, 2019, to consider the groups’ request.
 
The United States Supreme Court heard oral arguments in Department of Commerce v. New York on April 23, 2019. It was unclear as of June 3 whether the court would consider the new evidence in its decision, which is expected by the end of the month.
 


Connecticut House of Representatives approves omnibus public-sector union bill

On May 29, 2019, the Connecticut House of Representatives voted 83-58 to approve HB06935, an omnibus public-sector union bill.
 
If approved, the bill would make several changes to the state’s public-sector labor laws:
  • It would require public employers to furnish unions with information about newly hired and current employees. Employees would have to consent to provide personal contact information to unions, such as home addresses and phone numbers.
  • It would require employers to grant unions access to new employee orientations. It would also authorize unions to use public facilities and resources in order to communicate with members.
  • It would authorize unions to maintain dues deduction authorization records. It would require employees to revoke or revise their authorizations directly with their unions.
  • It would prohibit employers from deterring or discouraging employees or applicants from joining or remaining in a union. It would also bar unions from contacting employees who have indicated that they do not want to be contacted.
The bill now goes to the Connecticut State Senate. If the Senate approves the bill, it would then go to Gov. Ned Lamont (D) for his action. The General Assembly is scheduled to adjourn June 5.
 


Trump administration files petition for U.S. Supreme Court to review 4th DACA case

The Trump administration has asked the U.S. Supreme Court to grant expedited review of four cases involving the 2017 decision to end an Obama-era program (DACA) that postponed deportation for children who entered the United States unlawfully. The Fourth Circuit Court of Appeals ruled against the Trump administration’s decision to end the DACA program on May 17, 2019. In response, the solicitor general asked the U.S. Supreme Court to decide whether the decision to end DACA is reviewable by courts and whether the decision to end the program is lawful.
 
Before this latest petition, filed May 24, 2019, the U.S. Supreme court had not acted on three similar pending cases. The court first considered whether to hear the cases during its January 11, 2019, conference but has not made a decision about whether to accept the cases since then. Four justices have to agree to hear a case for it to move forward in the process. The Trump administration is asking the court to combine the cases and consider them together during the fall 2019 term.
 


Unanimous U.S. Supreme Court declines to apply Chevron deference in Social Security case

A unanimous U.S. Supreme Court declined to apply Chevron deference to uphold an agency legal interpretation in a case decided on May 28, 2019. Smith v. Berryhill involved whether the Social Security Administration’s (SSA) dismissal of an appeal in a disability case counted as a final agency action, which would allow the person filing for disability to appeal from the agency to a court. The U.S. Supreme Court ruled that the SSA dismissal was a final agency action that opened the door for judicial review.
 
Part of the court’s opinion in Berryhill involved Chevron deference, which requires courts to uphold reasonable agency interpretations of ambiguous laws. The court held that Chevron is based on the idea that Congress implicitly delegates power to agencies to fill in gaps where laws are unclear. The court reasoned that Chevron did not apply to this case because deciding the scope of judicial review is a responsibility Congress would have delegated to an agency explicitly.
 


Federal Register weekly update; lowest weekly document total since January

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of May 27 to May 31, the number of pages in the Federal Register increased by 1,130 pages, bringing the year-to-date total to 25,492 pages. This week’s Federal Register featured a total of 432 documents, including 347 notices, four presidential documents, 40 proposed rules, and 41 final rules.
 
One proposed rule was deemed significant under E.O. 12866—meaning that it may have a large impact on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,148 pages. As of May 31, the 2019 total trailed the 2018 total by 52 pages.
 
The Trump administration has added an average of 1,159 pages to the Federal Register each week in 2019 as of May 31. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Texas plumbing code and oversight board set to expire

The Texas Board of Plumbing Examiners and the state’s plumbing regulations will cease to exist after the Texas State Legislature on Sunday failed to approve associated sunset review legislation. The state’s plumbing code will expire on September 1, 2019, and the board will wind down operations by September 2020.
 
The sunset bill—a type of legislation that establishes a date on which an agency or law will expire without specific legislative action—proposed to move the responsibilities of the plumbing board under the Texas Department of Licensing and Regulation. Lawmakers in support of the bill argued that the move would improve efficiency, such as reducing the state’s eight-month processing period for issuing a plumbing license. Opponents claimed that the lengthy licensing period and other alleged inefficiencies functioned to protect public health and safety in a specialized industry.
 
Some plumbers in Texas have asked Texas Governor Greg Abbott (R) to call a special legislative session to address plumbing oversight. Abbott had not responded to requests for comment on the issue as of May 29. In the absence of a state plumbing code, municipal plumbing codes will govern plumbing oversight at the local level.
 


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