CategoryState

Republican Bill Boyd wins New Hampshire state House special election to replace the late Dick Hinch

A special election was held on April 13 for the Hillsborough 21 District of the New Hampshire House of Representatives. Bill Boyd (R), a current town councilor in Merrimack, defeated Wendy Thomas (D) and Stephen Hollenberg (Independent) with 53% of the vote. Thomas came in second with 45% of the vote. Boyd’s term will last until December 2022. The Hillsborough 21 District is a multi-member district made up of eight seats. The district is currently represented by six Republicans and one Democrat.

The seat became vacant after the death of state House speaker Dick Hinch (R) on Dec. 9 from complications caused by COVID-19. Republicans gained control of the state House in the November 3 general election and Hinch was elected speaker on December 2. He previously served as the minority leader and the majority leader in the state House. He was first elected to the state House in 2008.

New Hampshire has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. Republicans control the New Hampshire House of Representatives by a margin of 212-186 with two vacancies.

As of April 2021, 33 state legislative special elections have been scheduled for 2021 in 16 states. Between 2011 and 2020, an average of 75 special elections took place each year. New Hampshire held 29 state legislative special elections from 2010 to 2020.

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DeAnne DeFuccio sworn in to New Jersey General Assembly District 39

DeAnne DeFuccio (R) was sworn in on April 9 to a seat in the New Jersey Assembly, representing the 39th District. DeFuccio won the special election held at the Bergen County Republican Organization on March 31 by a vote of 88-81 over John Azzaritti. 

DeFuccio will serve the remainder of Holly Schepisi’s (R) term, which was set to expire in January 2022. Schepisi vacated the seat after she was selected to represent the 39th Senate District following Gerald Cardinale’d (R) death.

DeFuccio has served on the borough council of Upper Saddle River since March 2020. Previously, she worked as an attorney.

The Republican primary for the 39th Assembly District will take place on June 8, and DeFuccio has filed to run for re-election. Azzaritti, John Glidden, and Jonathan Kurpis will challenge incumbents DeFuccio and Robert Auth (R) in the primary.

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West Virginia State Legislature refers three constitutional amendments to 2022 ballot during its 2021 session

The West Virginia State Legislature referred three constitutional amendments to the November 2022 ballot on April 9 and 10, the last days of the legislative session. 

  1. West Virginia No Court Authority over Impeachment Amendment
  2. West Virginia Incorporation of Religious Denominations and Churches Amendment
  3. West Virginia Tax Exemptions for Personal Property Used for Business Activity Amendment

To put a legislatively referred constitutional amendment before voters, a two-thirds (66.67 percent) supermajority vote is required in both the West Virginia State Senate (23 votes) and the West Virginia House of Delegates (67 votes). November 2020 elections gave Republicans two-thirds majorities in both chambers when previously at least some support from Democrats to refer amendments to the ballot.

One amendment would say that no state court has authority over impeachment proceedings by the state legislature and that no court can review any impeachment judgments made by the state senate. The amendment was introduced as House Joint Resolution 2 on February 11, 2021, and passed largely along party lines in each chamber. The state House approved the amendment by a vote of 78-21 on March 2, 2021. In the House, 76 Republicans and two Democrats voted in favor of it, and 21 Democrats voted against it. On April 9, 2021, the state Senate approved the amendment by a vote of 23-11. All 23 Republicans voted in favor of it, and all 11 Democrats voted against it.

The amendment was proposed in response to an investigation and impeachment proceedings for multiple West Virginia Supreme Court Justices in 2018. Investigation and impeachment proceedings stemmed from the justices’ alleged misuse of over $1 million in state funds, specifically relating to courthouse office renovations; misuse of state vehicles; and illegal payments to senior judges. On October 2, 2018, the Senate censured Justice Beth Walker but did not remove her from office. In October 2018, temporary supreme court justices blocked the Senate from conducting an impeachment trial for Justices Margaret Workman, Robin Davis, and Allen Loughry. A similar amendment was proposed in 2020 but did not receive the necessary two-thirds vote in the House.

Another amendment would authorize the state legislature to pass laws to incorporate churches and religious denominations. The measure was introduced as Senate Joint Resolution 4 (SJR 4) on February 10, 2021. The state Senate approved SJR 4 with a vote of 32-0 with two absent on March 2, 2021. On April 7, 2021, the state House adopted the bill with amendments and sent it back to the state Senate. On April 10, the state Senate did not adopt the amendments and sent the bill back to the state House where it was approved in its original form in a vote of 94-4 with one absent. Four Democratic legislators voted against it.

The third amendment would authorize the state legislature to exempt personal property (machinery, equipment, and inventory) used for business activity from ad valorem property taxes. The amendment was introduced as House Joint Resolution 3 (HJR 3) on February 11, 2021. The state House approved an amended version of HJR 3 with a vote of 84-16 on March 31, 2021. Fifteen Democratic representatives and one Republican voted against it. On April 10, 2021, the state Senate approved the measure with a vote of 29-5. Four Democratic senators and one Republican voted against it.

The West Virginia State Legislature convened on February 10, 2021, and adjourned on April 10, 2021. Republicans held a 23-11 majority in the Senate and a 76-24 majority in the House, which means Republicans had the two-thirds majority required to put a constitutional amendment on the ballot in both chambers. Before the November 2020 elections, Republicans held 20 seats in the Senate and 58 seats in the House, which means they needed at least three votes from Democrats in the Senate and nine votes from Democrats in the House to refer constitutional amendments to the ballot.

The party also controlled the governorship, creating a Republican state government trifecta.

From 1996 through 2020, 73.3% (11 of 15) of statewide ballot measures in West Virginia were approved, and 26.7% (4 of 15) were defeated.

So far, 21 statewide ballot measures have been certified for the 2022 ballot in 12 states.

At the end of the West Virginia session, there were five constitutional amendments that had passed one chamber. Bills are carried over to the 2022 legislative session as long as the sponsor/sponsors remain in office during the next session, and the measure has not been rejected, tabled, or postponed indefinitely. The five outstanding amendments relate to education, term limits, firearms, and veterans.

The state legislature is set to convene on January 12, 2022, and adjourn on March 12, 2022.

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Special election primary to be held in New Hampshire House district

A special election primary is being held on April 20 for the Merrimack 23 District of the New Hampshire House of Representatives. Christopher Lins and John Martin are running in the Republican primary. Muriel Hall is unopposed in the Democratic primary. The general election is taking place on June 8, and the winner of this special election will serve until December 2022.

The seat became vacant after Samantha Fox (D) resigned on Jan. 12. Fox had represented the district since 2018.

Heading into the special election, Republicans have a 212-186 majority in the New Hampshire House with two vacancies. New Hampshire has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers.

As of April, 33 state legislative special elections have been scheduled for 2021 in 16 states. Between 2011 and 2020, an average of 75 special elections took place each year. New Hampshire held 29 state legislative special elections from 2011 to 2020.

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Filing deadline approaches in Michigan State Senate special elections

Major party candidates interested in running in the special elections for Michigan State Senate Districts 8 and 28 have until April 20 to file. For independent and minor party candidates, the filing deadline is Aug. 4. The primary election is scheduled for Aug. 3, and the general election is set for Nov. 2. 

The special elections were called after the former officeholders in each district were elected to other offices in November 2020. Former District 8 Sen. Peter Lucido (R) was elected Macomb County Prosecutor. Lucido served in the state Senate from 2019 to 2020. Former District 28 Sen. Peter MacGregor (R) was elected Kent County Treasurer. MacGregor served from 2015 to 2020.

Michigan has a divided government, and no political party holds a state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers. Republicans control both the Michigan House of Representatives and the state Senate, with respective margins of 58-52 and 20-16. Democratic Gov. Gretchen Whitmer was elected to office in 2018.

As of April 2021, 33 state legislative special elections have been scheduled for 2021 in 16 states. Between 2011 and 2020, an average of 75 special elections took place each year.

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Two Democratic gubernatorial candidates in New Jersey disqualified from ballot; Gov. Murphy the lone remaining candidate

On April 13, Lisa McCormick and Roger Bacon were disqualified from the Democratic primary ballot for New Jersey governor. Gov. Phil Murphy (D) is the only remaining candidate on the ballot.

Administrative Law Judge Jeffrey Rabin disqualified McCormick, ruling that none of the 1,951 petition signatures she submitted were valid. The New Jersey Democratic Party had challenged her petition, alleging that it included signatures from voters who said they did not sign the petition along with the signatures of two dead individuals.

Administrative Law Judge JoAnn LaSala Candido disqualified Bacon, ruling that he did not submit the minimum of 1,000 signatures necessary to qualify. Of the signatures Bacon submitted, 281 of them came from registered Republicans.

On the Republican side of the race, four candidates are running for their party’s nomination: Jack Ciattarelli, Brian Levine, Philip Rizzo, and Hirsh Singh.

As of April 6, 2021, two of the three major race rating outlets rated the general election as Solid Democratic and the third rated it as Likely Democratic, but Republicans have had success in the state’s gubernatorial races in the recent past. Between 1992 and 2021, Republicans held the governorship for 16 years and Democrats held the governorship for 14 years. The last Democratic governor to win a re-election campaign was Brendan Byrne in 1977. Since then, two sitting Democratic governors, Jim Florio (1993) and Jon Corzine (2009), lost re-election bids to Republican challengers.

New Jersey and Virginia will hold gubernatorial elections in 2021. Democrats currently hold both positions, but Virginia Gov. Ralph Northam (D) is prevented from running for re-election by term limits. Since both offices were last up for election in 2017, 10 governors’ offices have changed party hands. Eight of those changes were from Republicans to Democrats, one was from Democrat to Republican, and one was from independent to Republican.



Eight states have enacted laws limiting governors’ emergency powers since the start of the pandemic

In response to the coronavirus pandemic, governors and state agencies in all 50 states relied on emergency power authority to enact stay-at-home orders, mask mandates, and other restrictions on businesses and individuals. Since March 2020, 10 bills in eight states have been signed into law that are aimed at increasing legislative oversight of governors’ emergency powers. These laws were enacted in Arkansas, Colorado, Kansas, Kentucky, New York, Ohio, Pennsylvania, and Utah.

Additionally, voters in Pennsylvania will have a chance on May 18, 2021, to approve a measure the Pennsylvania State Legislature certified for the ballot that would limit the governor’s emergency powers.

Laws limiting the governor’s emergency powers have been enacted in five states where one party controls the governorship and both branches of the state legislature—Arkansas (Republican trifecta), Colorado (Democratic trifecta), New York (Democratic trifecta), Ohio (Republican trifecta), and Utah (Republican trifecta). Laws limiting the governor’s authority have been enacted in three states with divided governments. In Kansas, Kentucky, and Pennsylvania, the governorship is controlled by a Democrat, while Republicans hold majorities in the state legislature’s chambers.

The laws generally allow legislators to terminate emergency declarations and orders or restrict a governor’s authority to regulate city and county-level public health decisions.

• In Kansas, Gov. Laura Kelly (D) signed Senate Bill 50 into law on March 24, 2021. Under the law, anyone burdened by an executive order, school board policy, or county health directive can file a lawsuit, and courts must respond to the lawsuit within 72 hours to determine if the order or policy is narrowly tailored to the emergency. The law also expanded the Legislative Coordinating Council from seven to eight members and empowered it to override gubernatorial executive orders. On Thursday, April 1, the Legislative Coordinating Council voted 5-2 (with one absence) to end Kelly’s statewide mask mandate.

• In Ohio, Republican majorities in the General Assembly voted on March 24 to override Governor Mike DeWine’s (R) veto of Senate Bill 22, which placed a 90-day limit on states of emergency and authorized lawmakers to pass resolutions to terminate a state of emergency after 30 days.

• In Kentucky, Republican majorities in the General Assembly voted to override Gov. Andy Beshear’s (D) vetoes of Senate Bill 1 and Senate Bill 2. The bills limit the governor’s emergency orders to 30 days unless extended by the legislature and grant legislative committees more oversight of the governor’s emergency administrative regulations. However, Franklin Circuit Court Judge Phillip Shepherd temporarily blocked parts of both bills from taking effect on March 3, after Beshear filed a lawsuit arguing the bills would undermine public health measures meant to protect people in Kentucky from the coronavirus pandemic. Those injunctions remain in effect.

As of April 2020, legislatures in 33 states can vote to terminate a governor’s emergency declarations. Legislatures in Alaska, Kansas, Michigan, and Minnesota are required to vote on extending or terminating a governor’s emergency declarations.

To read more about laws limiting governors’ emergency powers, click below.

Changes to state emergency power laws in response to the coronavirus (COVID-19) pandemic, 2020-2021

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New Mexico becomes the third state this year to approve recreational marijuana legalization

On April 12, New Mexico Gov. Michelle Lujan Grisham (D) signed House Bill 2 (HB 2) to legalize recreational marijuana. 

HB 2 made New Mexico the third state to approve recreational marijuana legalization in the last two weeks. New York Gov. Andrew Cuomo (D) signed a marijuana legalization bill on March 31, and, on April 7, the Virginia General Assembly approved Gov. Ralph Northam’s (D) amended legalization proposal.

HB 2 allows the possession of up to two ounces of marijuana, 16 grams of concentrated marijuana, and 800 milligrams of edible cannabis. It allows each person to grow up to six mature and six immature marijuana plants, with a limit of 12 mature plants per household. Local governments will be allowed to pass laws regulating certain commercial activity and density. 

Marijuana sales will be taxed at 12% through July 1, 2025. After 2025, the tax will increase by one percentage point annually until it reaches 18% in 2030. One-third of revenue will go to the city in which the sale occurred, one-third to the county, and the other third will be distributed by future legislation.

Provisions of HB 2 without specified timelines, such as legalization of possession and use, will go into effect 90 days after the legislative session adjourns, estimated to be around July 1. The bill also establishes the Cannabis Control Division to regulate and license commercial marijuana activity. The division must establish a date to begin legal marijuana sales starting no later than April 1, 2022.

Another bill, Senate Bill 2, provided for the expungement of certain marijuana-related convictions for activities made legal by HB 2.

New Mexico was the fifth state to approve legalized recreational marijuana through legislative action rather than a voter-approved ballot measure. Including New Mexico, 17 states and D.C. have enacted marijuana legalization. The first nine states to legalize recreational marijuana did so through ballot initiatives. An additional 13 states have decriminalized recreational marijuana usage.

South Dakota voters approved a recreational marijuana legalization initiative in 2020, but it was ruled unconstitutional. Proponents said they would appeal the ruling to the state supreme court.

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State legislators passed restrictions on the initiative process in three states and are considering ballot measure law changes in several others

At least 123 legislative proposals concerning ballot initiatives, veto referendums, referrals, local ballot measures, and recall were introduced in the 2021 legislative sessions of 34 states. At least eight had been approved so far.

Here are some of the most notable changes to ballot measure law passed and proposed in 2021:

  • The South Dakota Legislature referred a constitutional amendment to the 2022 ballot that would require a 60% supermajority vote for future ballot measures that increase taxes or fees or that require the state to appropriate $10 million or more in the first five fiscal years.
  • The legislature referred the amendment to the June 2022 ballot, and voters must approve it before it is enacted.
  • Legislation to enact or increase supermajority requirements for ballot measures was introduced in 2021 sessions in seven states: Arizona, Arkansas, Florida, Missouri, North Dakota, Oklahoma, and South Dakota. Proposed requirements range from 60% to two-thirds (66.67%). Some proposals apply only to citizen-initiated measures but not referrals, some to constitutional amendments—both citizen-initiated and legislatively referred, and some to measures proposing tax increases or certain levels of funding allocation.
  • The Idaho Legislature passed a bill to change the state’s distribution requirement to require signatures from 6% of voters from all 35 legislative districts for ballot initiatives and veto referendums instead of the existing requirement of 6% of voters from 18 of the state’s legislative districts. 
  • In 2019, the Idaho Legislature passed but the governor vetoed a pair of bills that were designed to increase the state’s initiative signature requirement and its distribution requirement, among other changes. 
  • The 2021 law was passed by more than the two-thirds majority required to override a veto in each chamber.
  • When the Idaho Legislature approved SB 1110, Former Idaho Supreme Court Justice Jim Jones submitted a petition with about 16,000 signatures to Gov. Little asking him to veto the bill.
  • Bills to enact single-subject rules for ballot initiatives were introduced in Arizona, Mississippi, and North Dakota.
  • Bills to require certain disclosures and details regarding their single-subject rules were also introduced in 2021 in Nebraska and South Dakota.
  • Proposals to establish statewide initiative, referendum, or recall processes were introduced in Connecticut, Hawaii, Kansas, Kentucky, New Jersey, New York, South Carolina, and Tennessee.
  • Other topics addressed by 2021 legislation include drafting and displaying ballot language, petition language, and voter guide language; signature removal; signature verification; filing fees; ballot and voter guide argument fees and requirements; deadlines and process changes; procedures and requirements for legal challenges; and election date requirements.


Checks and Balances: State lawmakers press for oversight of emergency powers

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 the six resolutions of disapproval filed under the Congressional Review Act that could nullify regulations issued in the final months of the Trump administration. We also review judicial activity affecting federal employee removal protections and applications of Chevron deference to agency interpretations of criminal statutes. 

At the state level, we take a look at a Connecticut judge’s opinion supporting legislative oversight of executive emergency powers; a veto override from the Ohio General Assembly enacting legislation limiting the governor’s emergency powers; a legislative proposal in Idaho that would allow state lawmakers to veto certain federal government actions; and new limits on judicial deference in Georgia tax cases. 

We also highlight a new paper examining the recent increase in agency leadership positions held by former congressional staff. As always, we wrap up with our Regulatory Tally, which features information about the 262 proposed rules and 277 final rules added to the Federal Register in March and OIRA’s regulatory review activity.


In Washington

Democrats file six CRA resolutions aiming to block Trump-era agency rules

  • What’s the story? Democratic members of Congress introduced six resolutions of disapproval under the Congressional Review Act (CRA) prior the April 4 deadline. The resolutions create a path for lawmakers to review federal rules issued during the final months of the Trump administration (after August 21, 2020) and vote to reject them.
  • To reject a rule, both chambers of Congress must pass a resolution disapproving the rule and President Joe Biden (D) must sign the resolution into law.  
  • The CRA authorizes the U.S. Senate to fast-track the resolutions through the legislative process. In order to avoid any legislative delay tactics, senators must take action to fast-track the resolutions before the deadline, estimated to occur in mid-to-late May according to The George Washington University’s Regulatory Studies Center. 
  • The six resolutions of disapproval seek to block the following agency regulations:
  • An October 2020 rule from the U.S. Comptroller of the Currency (OCC) that aims to determine when banks are the true lender in situations where banks provide the money for third-party organizations to extend credit to borrowers. 
  • A November 2020 rule from the U.S. Securities and Exchange Commission (SEC) that changed regulations governing shareholder proposal submissions. 
  • An Environmental Protection Agency (EPA) rule from September 2020 that reversed the Obama administration’s methane standards. 
  • An Equal Employment Opportunity Commission (EEOC) rule changing the conciliation process (an alternative to litigation). 
  • A sunset rule from the U.S. Department of Health and Human Services (HHS) that sets expiration dates for HHS regulations unless the agency reviews those regulations according to Regulatory Flexibility Act requirements.
  • A November 2020 rule from the Social Security Administration that aims to clarify when administrative appeals judges on the Social Security Administration Appeals Council may hold hearings and issue decisions.

Sixth Circuit narrows Chevron deference 

  • What’s the story? A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on March 25 limited applications of Chevron deference in the criminal context in its Gun Owners of America v. Garland decision, which invalidated the Trump administration’s bump stock ban. 
  • The court declined to apply Chevron deference to the Bureau of Alcohol, Tobacco, and Firearm’s statutory interpretation supporting the agency’s rule that allowed bump stocks to be classified as machine guns. The court held that Chevron deference did not apply because the law in question was a criminal statute. The court also found that the district court should have permitted the plaintiffs’ request for an injunction to block the rule.
  • “Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns,” wrote Judge Alice Batchelder in the opinion, “we hold that an administering agency’s interpretation of a criminal statute is not entitled to Chevron deference.”
  • Judge Eric Murphy joined Judge Batchelder in the opinion. Judge Helene White dissented.
  • Judge White disagreed with the court’s limitation on Chevron deference. “The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O’Hagan—and has never purported to overrule those cases,” she wrote.
  • The court remanded the case to the district court and eliminated the possibility of a nationwide injunction by limiting any subsequent injunctions to the four states within the Sixth Circuit.
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Federal Circuit raises standard to remove federal employees

  • What’s the story? The U.S. Court of Appeals for the Federal Circuit on March 11 set a new bar for firing federal agency employees in the case Santos v. National Aeronautics and Space Administration (NASA).
  • The court found that NASA failed to provide justification for placing its employee, Fernando Santos, on a Performance Improvement Plan (PIP). An agency generally issues a PIP as a signal to a poor performing employee before initiating disciplinary action. 
  • The three-judge panel (Judges Kathleen O’Malley, William Bryson, and Todd Hughes) ruled that federal law requires agencies to justify the issuance of a PIP when a fired employee challenges a PIP-based removal. Prior to the court’s decision, agencies had not been required to justify the use of a PIP.
  • “Allowing a PIP to serve as the pre-removal notice required by Section 4303 is not the  same as allowing the mere fact of a PIP to create a presumption that the pre-PIP conduct  was actually unacceptable,” wrote Judge O’Malley in the opinion. “Thus, we  hold that, once an agency chooses to impose a post-PIP termination, it must prove by substantial evidence that the employee’s unacceptable  performance  ‘continued’—i.e., it  was  unacceptable before the PIP and remained so during the PIP.”
  • The judges remanded the case to the Merit Systems Protection Board for further proceedings.
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In the states

Connecticut judge calls for legislative oversight of governor’s emergency powers

  • What’s the story? Connecticut Superior Court Judge Thomas Moukawsher on March 8 issued a decision that upheld the state’s mask mandate for school children while also calling for legislative oversight of the governor’s emergency actions.
  • Moukawsher stated that, in his view, the Connecticut Constitution does not allow the Connecticut General Assembly to delegate legislative power—including emergency power—to the governor without placing limits on such authority. 
  • Moukawsher claimed that state law must include a method for the general assembly to disapprove of the governor’s orders, that the general assembly must ratify or reject the governor’s existing orders, and that current law requires the general assembly to renew the governor’s emergency authority after six months.
  • The effect of Moukawsher’s decision depends on the Connecticut Supreme Court’s forthcoming written opinion in the December 2020 case Casey v. Lamont, in which the court upheld Governor Ned Lamont’s (D) executive order on bar closures. The court had yet to issue a written opinion in the case as of April 7, but its anticipated opinion is expected to include guidance that could affect Moukawsher’s holding.
  • “This court believes that the Governor likely cannot continue to carry out his emergency orders without some form of ratification and control from the General Assembly,” wrote Moukawsher, “But matters affecting this issue are currently before the Connecticut Supreme Court. Whether this court may act in any way on this question or what way it may act will doubtless be influenced by the pending decision.”
  • Lamont indicated that he would allow his emergency powers to expire after April 20 and would work with legislators to continue any executive orders deemed necessary. “Right now my EO’s are in place,” said Lamont at a news conference. “If anyone wants to counter them, I’m willing to listen, and then on April 20 the legislature will step in and make some determinations.” 
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Ohio lawmakers override governor’s veto to implement legislative oversight of emergency actions

  • What’s the story? The Ohio General Assembly on March 24 voted to override Governor Mike Dewine’s (R) veto of a law aimed at increasing legislative oversight of the governor’s emergency powers.
  • Senate Bill 22 places a 90-day limit on states of emergency. It also authorizes lawmakers to pass resolutions to terminate a state of emergency after 30 days and to reject any executive orders related to the emergency.
  • The House of Representatives approved the veto override by a 62-35 vote. The Senate approved the veto override by a 23-10 vote. Both votes occurred largely along party lines with three Republicans joining Democrats in opposition.
  • Dewine expressed concerns about the legislation in his March 23 veto statement, including what he views as the potential unconstitutionality of reversing executive orders through resolutions and the potential prevention of  local health boards from quarantining people exposed to deadly diseases.
  • Speaker of the House Bob Cupp (R) stated that the Ohio legislation updates the state statute to align with similar processes in 26 other states. “We have a very old statute, and the pandemic sort of brought that to light,” said Cupp. “And so we are just adjusting and modernizing our statute.”
  • Democrats, including House Minority Leader Emilia Sykes (D), voted against the legislation. “You all are great at a lot of things,” Sykes told her colleagues on the House floor. “You are brilliant orators, lawyers, business owners, farmers, and more, but you are not good at public health.”
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Idaho legislative committee advances bill allowing for veto of federal actions 

  • What’s the story? Idaho state Representative Sage Dixon (R), co-chair of the state legislature’s Committee on Federalism, on March 10 introduced legislation in the House State Affairs Committee that aims to allow state lawmakers to veto federal actions.
  • The bill would allow any state legislator to make a complaint concerning federal actions, such as executive orders, acts of Congress, or federal court rulings, that they consider to be beyond the scope of federal authority. 
  • After receiving a complaint, the members of the federalism committee would determine whether the complaint has merit. If so, a public hearing would be scheduled and, after the hearing, the committee would submit a report to the full legislature recommending whether to pass legislation nullifying the federal action.
  • Dixon told lawmakers that the nation has “experienced the gradual drifting away from the founding principles of a limited federal government that stayed within the powers granted to it in the Constitution to a place where states are often merely enforcement vehicles of federal policy.”
  • The House State Affairs Committee advanced the bill to the full House for possible amendments.
  • Idaho Deputy Attorney General Cory M. Carone issued an opinion on March 19 claiming that the legislation wasn’t unconstitutional on its face, but that lawmakers’ actions pursuant to the legislation could face constitutional challenges.
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Georgia legislature approves limits on judicial deference 

  • What’s the story? The Georgia House of Representatives on March 22 voted 164-4 to send legislation to the governor’s desk that would limit judicial deference in the state by ending deference to certain tax regulations. The state Senate unanimously approved the legislation on March 1. 
  • Senate Bill 185, sponsored by state Senator Bo Hatchett (R) and six Republican cosponsors, requires state courts and the Georgia Tax Tribunal to decide all questions of law without deference to the regulations or policy interpretations of the state’s Department of Revenue, among other provisions.
  • Georgia lawmakers failed to approve similar legislation last year before the close of the legislative session.
  • Georgia joins a group of other states that have addressed judicial deference practices in recent years. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to prohibit or limit judicial deference to state agencies.
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Examining the “Congress-to-commission” pathway

“Congress’s Commissioners,” a recent paper in the Yale Journal on Regulation by administrative law scholars Brian D. Feinstein and M. Todd Henderson, examines Congress’ growing practice of placing former legislative staff members in agency leadership positions. The authors found that the practice has increased nearly fourfold since the 1980s. Half of all current commissioners and board members on eleven major multi-member agencies examined by the authors previously served as legislative staff.

The authors argue that:

“[T]he Congress-to-commission pathway likely changes the way in which the administrative state operates. To the extent that former staffers take the culture of, and their connections to, Capitol Hill with them to their new jobs, then some of Congress’s pathologies may inhibit agency functioning. On the other hand, linking commissions with the legislative branch may increase democratic accountability, provide meaningful oversight, and improve commissions’ understanding of congressional objectives.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s March regulatory review activity included the following actions:

  • Review of 28 significant regulatory actions. 
  • Three rules approved without changes; recommended changes to 25 proposed rules.
  • As of April 9, 2021, OIRA’s website listed 38 regulatory actions under review.
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