CategoryPublic Policy

Arizona becomes the first state to recognize out-of-state occupational licenses

A new Arizona law directs state regulatory agencies to issue licenses or certifications for new residents who were already licensed in their previous state. The law allows people who move to Arizona to continue working in their career field without having to attend state-specific training. For example, licensed nurses in Texas would not have to go through a new process to become recertified as nurses in Arizona before moving and working in an Arizona hospital.
 
The law lists requirements for new residents seeking Arizona licenses to work in regulated fields. The law requires applicants to have a current certification in the same discipline in another state and have no record of disciplinary action or of the loss of a license in another state.
 
In his 2019 State of the State Address, Arizona Governor Doug Ducey argued in favor of the law saying, “100,000 people will move here this year. There’s a job available for every one of them. Lots of them are trained and certified in other states. Standing in their way of earning a living in Arizona, our own licensing boards, and their cronies […] And before those unelected boards feign outrage – let’s remember: workers don’t lose their skills simply because they move to Arizona.”
 
Opponents of the law, like the National Board of Certified Counselors, argued, “Although the intent is to make it easier to work in Arizona, such legislation potentially exposes the public to mental health providers who have not met the minimum qualifications to practice in the state.”
 


43 states prohibit abortion at specific stages of pregnancy

A total of 43 states prohibit abortions beginning at specific stages of pregnancy. This includes 17 states that prohibit abortions beginning at the stage of fetal viability and 15 states that prohibit abortions beginning at 20 weeks post-fertilization. Seven states do not prohibit abortions in any form.
 
Two abortion-related ballot measures passed in 2018: Alabama Amendment 2 and West Virginia Amendment 1.
 
Alabama Amendment 2 amended the state constitution, declaring that the state’s policy is to support “the sanctity of unborn life and the rights of unborn children, including the right to life.” This amendment was cited in a February 2019 wrongful death lawsuit. A county probate judge ruled that an Alabama resident could file a lawsuit on behalf of an unborn fetus given that a fetus was defined by the Alabama Constitution as a person with legal rights.
 
West Virginia Amendment 1 amended the state constitution to declare that “nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” This same language was also used in Alabama’s amendment.
 
Alabama Amendment 2 and West Virginia Amendment 1 were referred to the ballot by the state legislatures. Also in 2018, Oregon voters defeated a citizen initiative that would have prohibited public funds from being spent on abortions in Oregon, except when determined to be medically necessary or required by federal law.
 
The Alabama and West Virginia measures both followed language initially used in an approved 2014 measure: Tennessee Amendment 1. Two abortion-related measures with different proposed constitutional language were rejected in Colorado and North Dakota, respectively. The Colorado measure would have included unborn human beings under the definition of person and child in the Colorado criminal code. The North Dakota measure would have added language to the state constitution guaranteeing a right to life at every stage of human development.
 


Federal Register weekly update; highest weekly total of presidential documents in 2019

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 April 1 to April 5, the number of pages in the Federal Register increased by 1,748 pages, bringing the year-to-date total to 13,794 pages. This week’s Federal Register featured a total of 604 documents, including 452 notices, 12 presidential documents, 57 proposed rules, and 83 final rules.
 
One proposed rules, three final rules, and one notice 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 1,394 pages. As of April 5, the 2019 total trailed the 2018 total by 1,224 pages.
 
The Trump administration has added an average of 985 pages to the Federal Register each week in 2019 as of April 5. 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.
 
Additional reading:
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


SCOTUS rejects a challenge to expert testimony

Biestek v. Berryhill asked whether agency experts must provide data supporting their testimony during benefits hearings. On April 1st, the U.S. Supreme Court ruled, “not categorically.” The court held that reviewing courts could uphold agency decisions even when experts withhold requested data.
 
Justice Elena Kagan, writing for a 6-3 majority, argued that a blanket rule against experts refusing to reveal data used to support their conclusions would be too broad. She held that reviewing courts should adopt a case-by-case approach. Justice Neil Gorsuch, in a dissent joined by Justice Ruth Bader Ginsburg, argued that agency experts should provide support for their allegations when asked.
 
When the Social Security Administration (SSA) decides whether to award disability benefits to applicants, it follows an informal adjudication process laid out in the Social Security Act of 1935. SSA administrative law judges (ALJs) conduct hearings to determine whether the agency should accept or reject disability claims. If someone challenges an SSA benefits decision in court, judges will uphold the agency’s factual determinations if a reasonable person would accept that the supporting evidence was adequate.
 
Courts reviewing factual determinations made by the SSA have to make sure the agency based its decisions on substantial evidence. Court precedent defines substantial evidence as that which a reasonable mind would accept as supporting a conclusion.
 
In this case, Michael Biestek went before an SSA ALJ for a hearing to see if there was any work he could perform with his disabilities. A vocational expert working for the SSA testified that there were hundreds of thousands of jobs available for someone like Biestek. The ALJ did not require the expert to share the surveys she used to make her assessment when Biestek’s lawyer asked to see them. Based on the expert testimony, the ALJ rejected part of Biestek’s disability application. Biestek challenged the partial denial of benefits, saying that the expert’s refusal to share her data meant that her testimony fell short of the substantial evidence standard.
 
Justice Kagan held that expert testimony alone is usually enough to qualify as substantial evidence. She did not support rejecting expert testimony in all cases where the agency expert refuses to divulge the underlying data. Justice Sonia Sotomayor wrote a dissenting opinion, arguing that the SSA had the burden of proof to show that Biestek had work opportunities. Justice Gorsuch wrote a separate dissenting opinion, arguing that “The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decisionmaking [….] Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice.”
 


March 2019 OIRA review count; highest monthly review count of 2019

In March 2019, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 27 significant regulatory actions issued by federal agencies. The agency approved three rules without changes and approved the intent of 23 rules while recommending changes to their content. One rule was subject to a statutory or judicial deadline.
 
OIRA reviewed 19 significant regulatory actions in March 2018—eight fewer rules than the 27 significant regulatory actions reviewed by the agency in March 2019. During the Obama administration from 2009-2016, OIRA reviewed an average of 42 significant regulatory actions each February.
 
OIRA reviewed a total of 355 significant rules in 2018. In 2017, the agency reviewed 237 significant rules.
 
As of April 1, 2019, OIRA’s website listed 115 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 conflict with other regulations or with the priorities of the president.
 


SCOTUS weighs the expertise of agencies and courts during oral argument for Kisor v. Wilkie

During oral argument on March 27, 2019, for Kisor v. Wilkie, Justice Stephen Breyer said overturning Auer deference “sounds like the greatest judicial power grab since Marbury v. Madison.” He argued that, without Auer, judges could make decisions best left to experts in executive agencies. Justice Neil Gorsuch held a different view, arguing that federal law requires independent judges to decide all questions of law. Gorsuch said the promise of independent judges seemed to him “a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran” facing an agency in court.
 
The case involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA) over whether he should receive retroactive disability benefits for PTSD he developed during the Vietnam War. The VA denied Kisor’s initial disability claim in 1983 and granted him benefits in 2006. At issue is the VA’s interpretation of whether certain records were relevant to its decision to grant Kisor benefits with an effective date in 2006 instead of 1983. The U.S. Supreme Court will decide whether to defer to the expertise of the VA or to apply their own view of what the VA regulation means.
 


Federal Register weekly update; fewest final rules added since end of 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 March 25 to March 29, the number of pages in the Federal Register increased by 1,076 pages, bringing the year-to-date total to 12,046 pages. This week’s Federal Register featured a total of 566 documents, including 474 notices, four presidential documents, 40 proposed rules, and 48 final rules.
 
Three proposed rules and 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 776 pages. As of March 29, the 2019 total trailed the 2018 total by 1,578 pages.
 
The Trump administration has added an average of 927 pages to the Federal Register each week in 2019 as of March 29. 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


Federal judge expresses concern over constitutionality of ALJ proceedings

Judge John McBryde of the U.S. District Court for the Northern District of Texas expressed concern on Tuesday in his opinion in Cochran v. SEC over the constitutionality of the administrative law judges (ALJs) at the Securities and Exchange Commission (SEC).
 
The plaintiff, Michelle Cochran, appealed an adverse decision from an SEC ALJ in 2017, but further action on her appeal was stalled as Lucia v. SEC moved through the federal courts. The Lucia case challenged the constitutionality of the SEC’s ALJ appointment process. The United States Supreme Court ultimately ruled in June 2018 the agency’s ALJ appointments violated the U.S. Constitution’s Appointments Clause. Following the Lucia decision, Cochran’s case was reassigned to new proceedings before a different, constitutionally-appointed ALJ.
 
Cochran filed for injunctive relief against the agency proceedings in district court, claiming that the SEC’s ALJs remained unconstitutionally appointed despite ratification by the agency’s commissioners. Cochran argued that the SEC’s ALJs have double for-cause removal protections, which unconstitutionally insulate them from direct removal by the president.
 
McBryde dismissed the case due to the court’s lack of subject matter jurisdiction. However, he expressed concern over the constitutionality of the SEC’s ALJs in his opinion, stating, “The court is deeply concerned with the fact that plaintiff has been subjected to extensive proceedings before an ALJ who was not constitutionally appointed and contends that the one she must now face for further, undoubtedly extended, proceedings likewise is unconstitutionally appointed.”
 
The New Civil Liberties Alliance, a pro bono law firm with a focus on the administrative state, plans to appeal Cochran’s case to the United States Court of Appeals for the Fifth Circuit.
 
Additional reading:


U.S. Supreme Court rejects requests to pause ATF rule banning bump stocks

A new rule banning bump stocks will remain in force while critics challenge it in court. The U.S. Supreme Court rejected two requests to pause the ban while lower courts decide pending cases. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) bump stock rule went into effect on March 26. It requires owners of bump stock devices to destroy them or surrender them to the ATF. Bump stock owners who do not comply could face up to 10 years in prison and a $250,000 fine.
 
The ATF rule followed a February 2018 presidential memorandum signed by President Trump. The memorandum told the attorney general to propose a rule banning devices that turn legal weapons into machine guns. He signed the memorandum in response to the 2017 Las Vegas shooting where a gunman killed 58 and wounded hundreds more.
 
On March 25, the D.C. Circuit issued a stay for members of gun rights groups involved in a lawsuit before the court. That means the rule will not apply to members of the groups until the court decides their case. The 10th Circuit issued a stay for Clark Aposhian, a gun rights lobbyist challenging the ban with the New Civil Liberties Alliance.
 
Bump stocks are a firearm accessory that makes it easier to shoot faster. Supporters of the ban say that the rule protects members of law enforcement and the public from mass shooters. Opponents say agencies like the ATF do not have the constitutional authority to ban bump stocks by redefining legal terms. They argue that only Congress may write criminal laws.
 
Additional reading:


Federal Register weekly update; year-to-date page total exceeds 10,000 pages

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 March 18 to March 22, the number of pages in the Federal Register increased by 1,278 pages, bringing the year-to-date total to 10,970 pages. A total of 620 documents were included in the week’s Federal Register, including 511 notices, five presidential documents, 45 proposed rules, and 59 final rules.
 
Three 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 1,004 pages. As of March 22, the 2019 total trailed the 2018 total by 1,878 pages.
 
The Trump administration has added an average of 914 pages to the Federal Register each week in 2019 as of March 22. 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


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