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Learn more about the arguments in the debate over school closures during the coronavirus pandemic

Discussions about policy responses to the coronavirus are happening at a fast pace. As part of our ongoing coverage Documenting America’s Path to Recovery, Ballotpedia has published a series of articles capturing the regular themes in support of and opposition to these policy responses.

Here’s how it works. First, we identify a topic area, (such as mask requirements or testing. Next, we gather and curate articles and commentary from public officials, think tanks, journalists, scientists, economists, and others. Finally, we organize that commentary into broad, thematic summaries of the arguments put forth.

We’ve identified the following arguments in favor of school closures:
  1. School closures are necessary to prevent the spread of the virus.
  2. Evidence from past pandemics supports the efficacy of school closures.
  3. Reopening Universities will increase COVID-19 spread
  4. Reopening schools puts people of color at higher risk.
  5. We should keep schools closed because COVID-19 outbreaks are inevitable.
We’ve identified the following arguments in opposition to school closures:
  1. School closures are ineffective in preventing the spread of the virus.
  2. School closures pose significant unintended consequences.
  3. School closures and reopening plans have disparate economic effects.
  4. School closures and distance learning exacerbate digital divide
  5. We need to reopen schools to protect the economy.
  6. School-aged children have reduced COVID-19 risk.
Additional reading


Documenting America’s Path to Recovery: September 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 Connecticut adding a fine to its mask mandate, legislation in Ohio limiting the governor’s powers to move election dates, a featured story from the 1918 influenza pandemic, and more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • California (Democratic trifecta): Inyo, Marin, and Tehama counties moved from the most restrictive purple tier to the red tier of reopening, which is the next most restrictive. Moving to the red tier means that movie theaters in those counties may partially reopen. Thirty of the state’s 58 counties remain in the purple tier.
  • Connecticut (Democratic trifecta): Gov. Ned Lamont (D) signed an executive order imposing a fine of up to $100 for violating the state’s mask mandate. The order also imposes a $250 fine for attending indoor events with more than 25 people or outdoor gatherings with more than 100 people and a $500 fine for individuals organizing such events. The order takes effect at midnight on Sept. 17.
  • Georgia (Republican trifecta): Gov. Brian Kemp (R) signed an executive order creating a three-phase system for reopening nursing homes to in-person visitation. The phases are based on the rate of testing, length of time since a new case, and community spread.
  • Iowa (Republican trifecta): Gov. Kim Reynolds (R) announced that bars could reopen in Black Hawk, Dallas, Linn, and Polk counties. On Aug. 27, Reynolds closed bars and prohibited restaurants from serving alcohol past 10 p.m. in those counties.
  • Kentucky (divided government): Gov. Andy Beshear (D) announced bars and restaurants can move their last call from 10 p.m. to 11 p.m. and remain open until midnight starting on Sept. 15.
  • Ohio (Republican trifecta): On Sept. 15, Gov. Mike DeWine (R) signed legislation that bans public officials from causing elections “to be conducted other than in the time, place, and manner prescribed by the Revised Code,” and bans public officials from closing places of worship.
  • Oregon (Democratic trifecta): During the week of Sept. 6 to Sept. 12, Oregon’s positivity rate was 5.6%. In order for schools to reopen for in-person instruction, the state has to maintain a positivity rate of 5% or less for at least three consecutive weeks.
  • Connecticut, New Jersey, and New York (Democratic trifectas): On Sept. 15, Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that Puerto Rico had been placed back on the joint travel advisory requiring visitors to the tristate area to self-quarantine for 14 days. California, Hawaii, Maryland, Minnesota, Nevada, and Ohio were removed from the list.

Daily feature: The 1918 influenza pandemic

Every 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 Oct. 17, 1918, the Baltimore Sun reported on an early influenza vaccine trial.

Vaccine originated by Dr. E.C. Rosenow, of the Mayo clinic, Rochester, Minn., will be used in Chicago’s campaign against influenza.

Dr. Rosenow told the Chicago Influenza Emergency Commission of his experiments with the vaccine, with which he has treated 20,000 persons. The commission at once named a committee of physicians to take charge of the manufacture and use of all vaccines and […] in Chicago, including the Rosenow vaccine. Another committee was named to raise funds for its manufacture and distribution.

Click here to read the original article, courtesy of the University of Michigan Center for the History of Medicine and Michigan Publishing’s Influenza Encyclopedia.

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • The Big Ten voted to begin a nine-game football season on Oct. 24. The conference had announced on Aug. 11 that fall sports would be postponed until the spring.
  • Jeffrey J. Zayach, executive director of Boulder County Public Health, ordered students at the University of Colorado to self-quarantine for two weeks beginning Sept. 16.
  • On Sept. 8, two families filed suit against Texas Gov. Greg Abbott (R) in the Travis County District Court challenging COVID-19 visitation restrictions for nursing homes and assisted living facilities. The plaintiffs, who have been unable to visit their family members in care facilities, argue that Abbott and the Texas Health and Human Services Commission (HHSC) are violating their constitutional and statutory rights “by prohibiting essential family visitors, damaging the health of residents in these facilities, and costing precious time to the residents and their families.” Citing the Texas Human Resources Code, which guarantees an elderly individual “a private place for receiving visitors,” with limited exceptions, plaintiffs argue that officials are “impeding this right and … suspending this portion of the law without authority.” The plaintiffs are asking for the court to “issue a temporary and permanent injunction allowing for safe and limited family visits for essential family caregivers.” Abbott’s office has not commented on the lawsuit, and HHSC has declined to comment on the pending lawsuit.


CatholicVote launches $9.7 million anti-Biden campaign

Ballotpedia's Daily Presidential News Briefing

September 16, 2020: National political advocacy group CatholicVote launched a $9.7 million ad campaign against Joe Biden. The Jo Jorgensen campaign announced that it had met ballot access requirements in all 50 states.


Facebook Spending, September 7-13, 2020


“Campaigns have also been forced to reconsider their conception of Pennsylvania’s political geography. The conventional wisdom was that western and eastern Pennsylvania were Democratic and central Pennsylvania was solidly Republican (memorably summarized by Democratic strategist James Carville’s quote that, between Pittsburgh and Philadelphia, Pennsylvania was just Alabama). While this may have been true (at least politically) in, say, 2000, working-class western and northeastern Pennsylvania have slowly but surely been getting redder. As a result, Pennsylvania’s new geographic divide is between southeastern Pennsylvania and the rest of the state — in other words, the parts of the state that are culturally Northeastern and the parts that are culturally Midwestern or Appalachian.”

– Nathaniel Rakich, FiveThirtyEight


Election Updates

  • Joe Biden is delivering remarks in Wilmington, Delaware, about public health concerns and a COVID-19 vaccine on Wednesday.
  • The Biden campaign began airing new ads in battleground states on Wednesday focused on healthcare and the Affordable Care Act. The campaign is spending $65 million on television, radio, and print advertising this week.
  • Scientific American endorsed Biden on Tuesday, marking the popular science magazine’s first presidential endorsement in its 175-year history.
  • National political advocacy group CatholicVote launched a $9.7 million ad campaign against Biden beginning with digital ads in Michigan and Pennsylvania focused on abortion.
  • Donald Trump will remain in Washington, D.C., on Wednesday, where he will hold a call with Jewish leaders in the afternoon and deliver remarks at the National Republican Congressional Committee Battleground Dinner in the evening.
  • Trump discussed his response to the coronavirus pandemic, healthcare, and policing standards during a town hall in Philadelphia on Tuesday night.
  • The Jo Jorgensen campaign announced on Monday that it had met ballot access requirements in all 50 states. Jorgensen is the fifth Libertarian candidate to reach this milestone following candidates in 1980, 1992, 1996, and 2016.

What We’re Reading


Flashback: September 16, 2016

The country’s largest law enforcement union, the National Fraternal Order of Police, endorsed Donald Trump.

Click here to learn more.



Documenting America’s Path to Recovery: September 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 West Virginia’s addition of a new category in the school reopening system, why Delaware courts have resumed issuing failure to appear warrants, school reopenings, and more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • California (Democratic trifecta): The California Attractions and Parks Association (CAPA) issued a statement asking Gov. Gavin Newsom (D) to release guidelines to allow amusement parks to reopen. CAPA represents parks including Disneyland, Universal Studios, Knott’s Berry Farm, and Legoland.
  • Connecticut (Democratic trifecta): Gov. Ned Lamont (D) explained how he wanted schools to handle positive coronavirus cases. “Especially for K through 8, we’re trying to keep that fourth grade class unto itself as a pod as a cohort. So that if there happens to be an infection in that one class, it’s just those 20 students and that teacher who would have to quarantine — not the entire middle school or not the entire school,” he said. Lamont’s remarks came after several schools in the state fully closed after learning of one positive coronavirus case.
  • Delaware (Democratic trifecta): Courts in Delaware resumed issuing failure to appear warrants for individuals who do not show up for court dates. The state suspended issuing such warrants in March 2020. Delaware courts will enter Phase Three of reopening in October, increasing staffing levels to 75% capacity.
  • Rhode Island (Democratic trifecta): In-person K-12 classes were allowed to resume statewide on Sept. 14. Cumberland and Warwick school districts are starting the school year fully remotely. Most school districts resumed with a hybrid schedule.
  • West Virginia (Republican trifecta): On Tuesday, Sept. 15, Gov. Jim Justice (R) announced he was adding a new color—gold—to the color-coding system that determines how schools can reopen. Counties with between 10 and 14.9 COVID-19 cases per 100,000 people will be classified as gold. While in-person learning is allowed in gold counties, there are limits on gatherings and sports travel.

Daily feature: Schools

All 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:

  • Washington, D.C., has a district-ordered school closure
    • 2016-17 enrollment: 85,850 students (0.17% of students nationwide)
  • Five states (Calif., Hawaii, N.M., Ore., W.V.) have a state-ordered regional school closure
    • 2016-17 enrollment: 7,679,753 students (15.18% of students nationwide)
  • Two states (Del., Va.) are open for hybrid or remote instruction only
    • 2016-17 enrollment: 1,686,326 students (3.33% of students nationwide)
  • Four states (Ark., Fla., Iowa, Texas) have state-ordered in-person instruction
    • 2016-17 enrollment: 9,180,918 students (18.15% of students nationwide)
  • Thirty-nine states have reopenings that vary by school or district
    • 2016-17 enrollment: 31,955,012 students (63.17% of students nationwide)

Additional activity

In this section, we feature examples of other federal, state, and local government activity, private industry responses, and lawsuits related to the pandemic.

  • University of Arizona President Dr. Robert Robbins called for students on or near campus to shelter in place for 14 days. Exceptions to the request include going to in-person classes already being held, getting food, working, or receiving medical treatment.
  • Anchorage School District Superintendent Deena Bishop set an Oct. 19 target date for some students to return to in-person instruction. Bishop said the district would begin with elementary and special education students.
  • The city council of Portsmouth, New Hampshire, voted 7-2 to enact a mask mandate, effective immediately and lasting through January 2021. Masks must be worn when inside public places or outdoors when social distancing is not possible. Violators can be fined up to $25.
  • On Sept. 14, Judge William Stickman IV of the U.S. District Court for the Western District of Pennsylvania struck down some of Pennsylvania Governor Tom Wolf’s (D) COVID-19 orders. The suit was brought on behalf of various Pennsylvania counties, businesses, and elected officials. It challenged Wolf’s restrictions on indoor and outdoor gatherings, the continued closure of “non-life-sustaining” businesses, and prolonged stay-at-home orders. Writing that the “liberties protected by the Constitution are not fair-weather freedoms,” Stickman, an appointee of President Donald Trump (R), ruled that the “Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” In his order, Stickman found
    • “(1) that the congregate gathering limits … violate the right of assembly enshrined in the First Amendment;”
    • “(2) that the stay-at-home and business closure components of defendants’ orders violate the due process clause of the Fourteenth Amendment;
    • “and (3) that the business closure components of defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.”
  • Stickman limited remedy to the plaintiff individuals and businesses, dismissing the counties for lacking standing to sue. Thomas E. Breth, an attorney for the plaintiffs, said, “You can’t tell 13 million Pennsylvanians that they have to stay home. That’s not America. It never was. That order was horrible.” Lyndsay Kensinger, Wolf’s press secretary, said Wolf would seek to block the decision while seeking an appeal, adding that the “ruling does not impact any of the other mitigation orders currently in place including … mandatory telework, mandatory mask order, worker safety order, and the building safety order.”


Checks and Balances: Department of Justice proposes modernization of Administrative Procedure Act

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 a legal challenge to 2020 census changes; a proposal from the U.S. Department of Justice (DOJ) to modernize the federal Administrative Procedure Act (APA); and agency rulemakings from the U.S. Department of Labor (DOL) and the DOJ that seek to limit the use of guidance documents.

At the state level, we examine a concurring opinion from a Pennsylvania Supreme Court justice expressing misgivings about judicial deference as well as procedural challenges to coronavirus response efforts.

We also highlight new scholarship proposing that internal administrative law changes, rather than judicial action, can narrow applications of Chevron deference as well as new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining whether state administrative agencies can choose whether to follow formal adjudication procedures. As always, we wrap up with our Regulatory Tally, which features information about the 176 proposed rules and 267 final rules added to the Federal Register in August and OIRA’s regulatory review activity.



In Washington

Census changes face challenge 

  • What’s the story? A three-judge panel of the United States District Court for the Southern District of New York on September 10 blocked a Trump administration effort to exclude people who reside in the United States without legal permission from the census numbers used to allocate congressional representation. 20 states joined with cities and counties to file a lawsuit on July 24 arguing that the July 21 presidential memorandum “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” violates the U.S. Constitution’s mandate to count “the whole number of persons in each State.” California Attorney General Xavier Becerra (D) filed a similar lawsuit in the United States District Court for the Northern District of California on July 28, arguing that the memo also violates separation of powers principles and the Administrative Procedure Act (APA).
  • The U.S. Constitution requires the enumeration of all persons in each State. Congress delegates authority to the U.S. Department of Commerce (DOC) to carry out the census and determine which persons qualify as inhabitants for the purposes of congressional apportionment.
  • The Trump administration argues that the DOC in prior censuses has interpreted its delegated authority to exclude persons residing in the country without lawful permission. The memorandum states that excluding “illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.”
  • Judges Richard C. Wesley, Peter W. Hall, and Jesse M. Furman held in a per curiam opinion that the Trump administration memorandum violates statutory requirements mandating that apportionment must be drawn from the number of residents living in each district, regardless of their legal status. The president’s supervisory authority of agency heads allow him to retain “some discretion in the conduct of the decennial census and resulting apportionment calculation,” wrote the judges in a per curiam opinion. “Nevertheless, where the authority of the President (or other members of the Executive Branch) to act is derived from statutes passed by Congress, the President must act in accordance with, and within the boundaries of, the authority that Congress has granted.”
  • The Trump administration will likely appeal the decision to the U.S. Supreme Court. The California lawsuit was still pending as of September 11, 2020.
  • Want to go deeper?

DOJ urges Congress to modernize administrative procedures

  • What’s the story? The U.S. Department of Justice (DOJ) on August 11 released a report recommending that Congress update and improve the 1946 Administrative Procedure Act (APA). The DOJ argued that the APA framework fails to sufficiently manage modern regulation and falls short of promoting agency accountability, transparency, and public engagement.
  • Deputy Attorney General Jeff Rosen told Reuters that the agency wants to work with Congress to revise the APA because the legislation “no longer reflects how the regulatory process actually works.”
  • The report, entitled “Modernizing the Administrative Procedure Act,” is based on proposals presented by regulatory professionals during the DOJ’s December 2019 summit on APA modernization. The report examines the development of administrative agencies over the 74 years since the passage of the APA, recommends legislative action to improve the APA, and considers takeaways from the Trump administration’s regulatory approach that could contribute to APA modernization, according to the DOJ.
  • Prior to 1946, no federal laws governed the general conduct of administrative agencies. The APA established uniform rulemaking procedures for federal agencies to propose and issue regulations, put forth procedures for issuing policy statements and licenses, and provide for judicial review of agency adjudications and other final decisions. The legislation remains largely unchanged today.
  • Want to go deeper?

Agencies move to rein in guidance practices

  • What’s the story? The U.S. Department of Labor (DOL) and the U.S. Department of Justice (R) issued recent rulemakings aimed at implementing President Trump’s (R) Executive Order 13891, which aims to prohibit federal administrative agencies from issuing binding rules through guidance documents. Agencies were required to comply with the order’s directives by June 27, 2020, but some agencies received extensions.
  • Noting that “the public often treats guidance from agencies as binding, even if it technically is not”, the final rule from the DOL, published on August 28, creates a searchable database of all agency guidance documents; requires that significant guidance documents (those with an economic impact of $100 million or more, among other factors) undergo a notice-and-comment review process prior to implementation; and allows the public to petition the DOL to amend or withdraw guidance documents.
  • The interim final rule from the DOJ, released on August 26, prohibits the agency from using guidance documents as substitutes for regulations; limits the agency’s ability to use guidance documents in civil and criminal enforcement actions; requires a notice-and-comment review process for significant guidance documents as well as approval by an agency official appointed by the president; mandates that all agency guidance documents be made available in a searchable database; and allows the public to petition the DOL to amend or withdraw guidance documents.
  • Want to go deeper?

In the states

Pennsylvania Supreme Court justice expresses misgivings about judicial deference

  • What’s the story? Pennsylvania Supreme Court Justice David N. Wecht on July 21 issued a concurring opinion in Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission expressing what he called “deep and broad misgivings” about the court’s practice of deferring to state agency interpretations of statutes and regulations.
  • The case challenged the Pennsylvania Public Utility Commission’s (PUC) interpretation of a statute governing public utilities. The PUC argued that the court should defer to its statutory interpretation because of the subject matter’s highly technical nature. The court, however, refused to defer to the PUC’s interpretation because it found the statute in question to be clear and unambiguous.
  •  “A court does not defer to an administrative agency’s interpretation of the plain meaning of an unambiguous statute because statutory interpretation is a question of law for the court,” wrote Justice Sallie Updike Mundy in the opinion.
  • In a concurring opinion, Justice Wecht expressed uncertainty about the court’s deference practices. Wecht pointed to the lack of clarity surrounding the court’s approach to deference, arguing that the court’s deference doctrines aren’t clearly distinguishable and have been, in their words, “thrown together over time.”
  • Ballotpedia tracks state approaches to judicial deference as part of The Administrative State Project. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to limit or prohibit judicial deference to state agencies.
  • Want to go deeper?

Coronavirus emergency powers challenged on procedural grounds to mixed results in state lawsuits 

  • What’s the story? The following lawsuits claim that state responses to the coronavirus pandemic in Arkansas and Alabama violated the Administrative Procedure Acts (APA) in their respective states:
    • Arkansas: A group of Republican lawmakers on September 3 filed suit against Arkansas Department of Health Director Dr. Jose claiming that the agency’s coronavirus-related health directives violated the state APA by not first receiving legislative approval. Moreover, the lawsuit claims that Gov. Asa Hutchinson’s (R) emergency declaration—first issued in March and since extended—violates the state APA, which mandates that emergency rules may not be effective for more than 120 days and that successive emergency rules may not be adopted earlier than 30 days after the expiration of the previous rule. Hutchison disagreed with the lawsuit, arguing that the legislative review of emergency rules would delay the state’s public health response.
    • Alabama: An Alabama judge on August 11 dismissed a procedural challenge to Governor Kay Ivey’s (R) authority to issue a mask mandate, but failed to provide an explanation for his reasoning. The plaintiffs alleged that the Alabama Board of Health failed to meet statutory notice and administrative review requirements prior to the issuance of the mask mandate in violation of the state APA. In their motion to dismiss, state officials argued that Ivey incorporated the order into a gubernatorial proclamation under her own authority, granted by the Emergency Management Act. Montgomery County Circuit Court Judge Greg Griffin dismissed the case without comment. The plaintiffs plan to appeal the decision.
  • Ballotpedia provides the text of all 50 state APAs as part of The Administrative State Project. Click here for complete coverage.

Narrowing Chevron Deference through Administrative Law

New scholarship from law professor Christopher Walker argues that Chevron deference can be narrowed through internal changes to administrative law processes rather than judicial action. Walker focuses on the use of Chevron deference in the context of immigration policy, arguing that the application of Chevron to immigration questions is inappropriate since immigration policies are most often formulated through adjudication rather than rulemaking. Walker proposes that federal regulators should shift the formulation of immigration policy from adjudication to rulemaking in order to shore up Chevron’s theoretical foundations of agency expertise, deliberation, and political accountability.

“Indeed, on closer examination, the theoretical foundations for Chevron deference crumble in the immigration adjudication context. Chevron’s core rationale for congressional delegation and judicial deference—agency expertise—is particularly weak when it comes to immigration adjudication. Unlike in other regulatory contexts, the statutory ambiguities immigration adjudicators address seldom implicate scientific or other technical expertise. The second leading and related rationale— deliberative process—is even weaker here than in other adjudicative contexts. After all, immigration adjudication is on the fringe of the ‘new world of agency adjudication.’ It is not formal adjudication under the Administrative Procedure Act (APA), lacking many of the signature procedural protections afforded in APA-governed formal adjudication. The third central rationale—political accountability—may at first blush seem compelling in immigration adjudication, due to the Attorney General’s final decision-making authority. Building on Hickman and Nielson’s framing, however, we argue that agency-head review is necessary yet insufficient for Chevron’s accountability theory. The theory should encompass a robust public engagement component, with public notice and an opportunity to be heard for those—beyond the parties in the adjudication itself—who would be affected by the agency’s statutory interpretation. Agency adjudication seldom provides that, and perhaps even less so when it comes to immigration adjudication.”

  • Want to go deeper?

Ballotpedia study shows that 46 states allow administrative agencies to choose whether to follow formal adjudication procedures

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 46 state constitutions or APAs allow administrative agencies to choose whether to follow formal adjudication procedures in administrative hearings as of August 2020.

  • Forty-six states allow administrative agencies to choose whether to go through formal adjudication or use informal procedures
  • Four states, Colorado, Montana, Ohio, and Pennsylvania, sometimes require agencies to use formal adjudication to resolve cases
  • No states require agencies to follow formal adjudication procedures in all cases

Ballotpedia examined provisions permitting state agencies to use informal adjudication here.


Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s recent regulatory review activity includes:

  • Review of 64 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 53 significant regulatory actions each August.
  • Eight rules approved without changes; recommended changes to 51 proposed rules; five rules withdrawn.
  • As of September 2, 2020, OIRA’s website listed 120 regulatory actions under review.
  • Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

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.



Federal judge finds Pennsylvania’s COVID-19 orders unconstitutional

On September 14, 2020, Judge William Stickman IV, of the U.S. District Court for the Western District of Pennsylvania, struck down some of Penn. Gov. Tom Wolf’s (D) COVID-19 orders as violations of rights guaranteed by the U.S. Constitution.

Various Pennsylvania counties, businesses, and elected officials brought the lawsuit County of Butler v. Wolf, which challenged restrictions on indoor and outdoor gatherings, the continued closure of “non-life-sustaining” businesses, and prolonged stay-at-home orders. In his decision, Stickman wrote the “liberties protected by the Constitution are not fair-weather freedoms,” and the “Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” President Donald Trump (R) appointed Stickman to the federal bench.

Stickman found “(1) that the congregate gathering limits … violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of defendants’ orders violate the due process clause of the Fourteenth Amendment; and (3) that the business closure components of defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.” Stickman limited remedy to the plaintiff individuals and businesses, dismissing the counties for lacking standing to sue.

Thomas E. Breth, an attorney for the plaintiffs, said, “You can’t tell 13 million Pennsylvanians that they have to stay home. That’s not America. It never was. That order was horrible.” Lyndsay Kensinger, Wolf’s press secretary, indicated that Wolf would seek to stay the decision while seeking an appeal, adding that the “ruling does not impact any of the other mitigation orders currently in place including … mandatory telework, mandatory mask order, worker safety order, and the building safety order.”

Additional reading:


No current U.S. Circuit Court of Appeals vacancies

Seventeen U.S. Court of Appeals judgeships were vacant when President Trump was inaugurated on January 20, 2017. Today, there are no U.S. Circuit Court of Appeals vacancies. According to the Administrative Office of U.S. Courts, no U.S. Circuit Court of Appeals judges have announced their intent to leave active judicial status during the remainder of Trump’s current term.

This is the first time there have been no federal appeals court vacancies since at least 1977. Between January 1, 1977, and January 1, 2019, an average of 9.6% of U.S. Circuit Court of Appeals judgeships were vacant.

Additional reading:


Trump launches eight-figure ad campaign in battleground states

Ballotpedia's Daily Presidential News Briefing

September 15, 2020: Donald Trump is launching an eight-figure ad campaign focused on the economy. Joe Biden is campaigning in Tampa and Kissimmee.


Poll Spotlight

Presidential poll highlights, 2019-2020 (OH Predictive Insights • Arizona • September 8-10, 2020)

Presidential poll highlights, 2019-2020 (Gravis Marketing • Arizona • September 10-11, 2020)

Presidential poll highlights, 2019-2020 (New York Times/Siena College Research Institute • Wisconsin • September 8-10, 2020)


Notable Quote of the Day

“A flip is also more plausible if you consider history. Texas is in the long process of realigning — again. It did so from the 1960s through the 1980s, culminating in 1994 with George W. Bush winning the governor’s mansion, much of it the result of Midwestern Republicans moving to the Texas suburbs. The same process is happening again but in reverse, from the early 2000s to today, from Republican to Democrat.

Texas has been purple a long time, with Democrats controlling the big cities but Republicans controlling the big state offices. The rest you know: In 2016, Trump beat Hillary Clinton by only 9 points, the smallest Republican margin in modern history. In 2018, not only did O’Rourke nearly upset Cruz, but he created a bow-wave of new Democrats swamping Republican congressional districts and elected judgeships.”

– Richard Parker, Houston Chronicle


Election Updates

  • On Monday, Joe Biden unveiled a series of digital and television ads aimed at Black voters in Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin. Two clips feature discussion in barbershops about voting and the coronavirus pandemic and a third ad focuses on criminal justice.
  • Biden is meeting with veterans in Tampa on Tuesday. He will also attend a Hispanic Heritage Month event in Kissimmee. The events mark his first public appearances in Florida since becoming the Democratic presidential nominee.
  • Rep. Adam Schiff (Calif.) and media producer Haim Saban co-hosted a fundraiser for Biden on Monday night that brought in $4.5 million.
  • Donald Trump is launching an eight-figure ad campaign on Tuesday focused on the economy. The ad campaign, which Fox News reported cost more than $10 million, will run nationwide and in Arizona, Pennsylvania, North Carolina, Florida, Georgia, Michigan, Minnesota, and Wisconsin.
  • Trump is traveling to Philadelphia on Tuesday to participate in an ABC News town hall at the National Constitution Center.
  • Trump spoke at a Latinos for Trump Coalition roundtable in Phoenix, Arizona, on Monday.
  • The Wisconsin Supreme Court ruled that Howie Hawkins would remain off the state ballot on Monday.

What We’re Reading


Flashback: September 15, 2016

Donald Trump shared the results of a medical physical written by Dr. Harold Bernsein.

Click here to learn more.



Federal Register weekly update: Lowest final rule total since first week 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.

From September 7 to September 11, the Federal Register grew by 1,112 pages for a year-to-date total of 56,470 pages. Over the same period in 2019 and 2018, the Federal Register reached 48,546 pages and 46,848 pages, respectively. As of September 11, the 2020 total led the 2019 total by 7,924 pages and the 2018 total by 9,622 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 402 documents:

• 336 notices
• five presidential documents
• 30 proposed rules

• 31 final rules

One final rule concerning gluten-free food labeling was deemed significant under E.O. 12866—meaning that it could 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. The Trump administration in 2020 has issued 24 significant proposed rules, 50 significant final rules, and one significant notice as of September 11.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017: Changes to the Federal Register

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Click here to find yearly information about additions to the Federal Register from 1936 to 2018: Historical additions to the Federal Register, 1936-2018


Arizona judge declines to rule on constitutional challenge to agency adjudication process

Maricopa County Superior Court Judge Douglas Gerlach on September 9 upheld a decision by then-Arizona Department of Child Safety (DCS) Director Gregory McKay in a case challenging the constitutionality of the procedural due process protections available to individuals during the agency’s adjudication of child abuse allegations.

McKay placed Phillip B. (the only name provided) on the child abuse registry despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law permits the DCS director to substitute his own judgment for that of the ALJ.

Mr. B. challenged the low standard of proof (probable cause) in the agency’s review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. The DCS director, according to the challenge, is not an impartial adjudicator because he exercises both investigatory and adjudicatory functions.

Gerlach declined to rule on the constitutional challenges raised by Mr. B. for factual reasons. He wrote in part that the bias challenge “flies in the face of well-settled law that ‘the combining of investigatory and adjudicatory functions [in a single agency] does not violate due process’ unless actual bias is shown.”

Mr. B. plans to appeal the decision.

“The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons,” said attorney Aid Dynar of the New Civil Liberties Alliance in a statement. “At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”

Read more about the case in the September 2019 edition of Checks and Balances: The Checks and Balances Letter: September 2019

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