Tagadministrative state

Checks and Balances – Federal Housing Finance Agency structure ruled unconstitutional

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 latest administrative law activity from the U.S. Supreme Court, including a decision calling for increased supervision of administrative patent judges (APJs) and a holding that the structure of the Federal Housing and Finance Agency (FHFA) is unconstitutional; three Congressional Review Act resolutions that, for the first time, repealed regulations issued under a Republican administration; and a closer look at the Biden administration’s first Unified Public Agenda of Regulatory and Deregulatory actions. 

At the state level, we take a look at an effective ban on judicial deference by the Mississippi Supreme Court and a new Maryland law that shifts agency responsibilities to state administrative law judges (ALJs).  

We also highlight new commentary that questions whether Congress granted the Centers for Disease Control and Prevention (CDC) more authority than the president. As always, we wrap up with our Regulatory Tally, which features information about the 170 proposed rules and 319 final rules added to the Federal Register in June and OIRA’s regulatory review activity.

In Washington

SCOTUS finds Federal Housing Finance Agency structure unconstitutional

What’s the story? The United States Supreme Court issued decisions in two administrative law cases since our last edition concerning oversight of administrative patent judges (APJs) and the structure of the Federal Housing Finance Agency (FHFA).

In United States v. Arthrex, the court held 5-4 that the U.S. Constitution’s Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without increased supervision from higher-level agency officials. In its June 21 decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from unilaterally reviewing APJ decisions.

Chief Justice John Roberts delivered the opinion of the court, writing that the PTO director’s lack of review power over APJ decisions gave APJs power that conflicted with the “design of the Appointments Clause ‘to preserve political accountability.’”

The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office. 

In Collins v. Yellen, the court held that restrictions on the president’s authority to remove the director of the FHFA violated the separation of powers. In its June 23 decision, the court also rejected the argument that the FHFA actions at issue in the case went beyond the agency’s legal authority.

Justice Samuel Alito delivered the opinion of the court, writing that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.”

The court’s decision to hold the structure of the FHFA unconstitutional articulated limits on the types of administrative agencies Congress may create and reaffirmed the court’s 2020 decision in Seila Law v. Consumer Financial Protection Bureau (CFPB), which held that the CFPB director’s removal protections unconstitutionally insulated the agency from presidential control.

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Biden signs three Congressional Review Act resolutions repealing Trump-era rules

What’s the story? President Joe Biden (D) on June 30 signed three Congressional Review Act (CRA) resolutions that, for the first time, reversed regulatory actions taken by a Republican administration. All three resolutions passed both chambers of Congress largely along party lines with Democrats in favor and Republicans opposed.

  • The first resolution, S.J.Res.13, reversed an Equal Employment Opportunity Commission (EEOC) rule issued under the Trump administration that changed the agency’s information-sharing requirements with companies accused of discrimination. 
  • The second resolution, S.J.Res.14, reversed an Environmental Protection Agency (EPA) methane rule issued under the Trump administration and restored methane emissions standards set under the Obama administration. 
  • The third resolution, S.J.Res.15, reversed a Comptroller of the Currency (OCC) rule issued under the Trump administration that changed regulations governing third-party lending. 

The CRA is a federal law passed in 1996 that creates a 60-day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a federal agency rule issued in the final months of a presidential administration. Since the law’s creation in 1996, Congress has used the CRA to successfully repeal 20 agency rules. 

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Biden administration releases first Unified Agenda

What’s the story? The Biden administration on June 11 released the Spring 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions–a semiannual publication of recently completed, ongoing, and anticipated federal regulatory actions. 

A White House press release announcing the new agenda outlined the following priority regulatory categories: “protect health and safety,” “support a robust economic recovery that strengthens the middle class,” “advance equity,” “confront the climate crisis,” and “build a fair, orderly, and humane immigration system.”

The agenda features 3,959 rules in the active, completed, and long-term stages.

The agenda’s searchable interface on reginfo.gov (the website for the Office of Information and Regulatory Affairs) no longer includes distinctions between regulatory and deregulatory actions. Those distinctions were previously prompted by President Donald Trump’s (R) Executive Order 13771, which required federal agencies to eliminate two old regulations for each new regulation issued. President Joe Biden (D) revoked E.O. 13771 on January 20, 2021.

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In the states

Mississippi Supreme Court rejects Auer deference, ends judicial deference in state

What’s the story? The Mississippi Supreme Court on June 10 ruled 8-1 in Mississippi Methodist Hospital and Rehabilitation Center Inc. v. Mississippi Division of Medicaid to end the state practice of deferring to agency interpretations of regulations, a doctrine known as Auer deference at the federal level. The court’s decision, combined with its prior rejection of state-level Chevron deference, effectively banned judicial deference practices in the state, according to an analysis by Pacific Legal Foundation attorney Daniel Ortner.

Justice Leslie King wrote the opinion for the court, noting that the practice of “[d]eferring to agency interpretations of rules and regulations is inconsistent with the standard of review for statutory interpretation, causes confusion, causes inconsistencies in application and within our own caselaw, and violates article 1, section 2, of Mississippi’s Constitution.” The court’s decision institutes a new period of de novo review over agency regulatory interpretations.

The court ended the state-level Chevron deference doctrine, which requires courts to defer to agency interpretations of unclear statutes, in the 2018 case King v. Mississippi Military Department. The justices argued that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review over such agency interpretations, which the court later reaffirmed in a 2020 tax and gambling case.

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Maryland agency responsibilities shift to ALJs

What’s the story? A new Maryland law effective July 1 shifted the responsibility of determining compensation for individuals who served time in prison for crimes they did not commit from the Maryland Board of Public Works to state administrative law judges (ALJs). 

Maryland Governor Larry Hogan (R) first proposed the change in September 2019. Hogan argued that state ALJs are more qualified than the members of the Board of Public Works to make compensation determinations because the board lacks the “expertise, capacity [and] personnel” to evaluate damages, pain, and suffering.

The Board of Public Works is made up of three elected officials: the governor, the state comptroller, and the state treasurer. State law previously authorized the board to compensate wrongly incarcerated individuals. However, the board had not done so since the last wrongly incarcerated individual received compensation in 2004.

Five wrongly incarcerated men had petitioned the board for compensation over the months leading up to Hogan’s proposal. Walter Lomax, for whom the new law is named, spent 39 years in prison for a crime he did not commit. Lawyers had asked the board to award $100,000 to each man for each year he spent behind bars for a total of roughly $12 million. 

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Can agencies have more power than the president?

New commentary from Reason senior editor Jacob Sullum questions whether Congress granted the Centers for Disease Control and Prevention (CDC) more power than the president.

In “Did Congress Give the CDC More Authority Than the President?” Sullum claims that the agency’s legal defense of its eviction moratorium in Alabama Association of Realtors v. Department of Health and Human Services suggested that the agency has unlimited authority to take “reasonably necessary” actions in order to prevent the spread of communicable diseases. Sullum argues that the agency’s mandate could exceed the president’s authority:

“Nor is the power asserted by the CDC limited to overriding rental contracts. It clearly would authorize a national mask mandate of the sort that Joe Biden conceded was beyond his powers as president, not to mention nationwide business closures and home confinement of every American who is not engaged in activities the CDC’s director deems essential.

Transforming its recommendations into commands, the CDC could have legally required all of us to keep our distance from members of other households. It even could have forced us to ‘clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe,’ back when it thought that was a sensible safeguard against COVID-19. …

Where does the CDC get these vast powers, which somehow exceed even the president’s? It cites the Public Health Service Act, which authorizes the secretary of health and human services to issue regulations that ‘in his judgment are necessary’ to control ‘communicable diseases,’ and one of those regulations, which delegates that authority to the CDC’s director.”

Though the U.S. Supreme Court on June 29 declined to lift a stay on the CDC’s eviction moratorium (set to expire at the end of July), a concurring statement by Justice Brett Kavanaugh indicated that at least five of the justices considered the moratorium to be unlawful.

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 32 significant regulatory actions. 
  • Two rules approved without changes; recommended changes to 29 proposed rules; one rule withdrawn from the review process.
  • As of July 1, 2021, OIRA’s website listed 59 regulatory actions under review.
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U.S. Supreme Court rules Federal Housing Finance Agency has unconstitutional structure

In Collins v. Yellen, the U.S. Supreme Court held that restrictions on the president’s authority to remove the director of the Federal Housing Finance Agency (FHFA) violated the separation of powers. In its June 23 decision, the court also rejected the argument that the FHFA actions at issue in the case went beyond the agency’s legal authority.

Justice Samuel Alito delivered the opinion of the court, writing that the Housing and Economic Recovery Act (HERA) blocks shareholders from challenging FHFA decisions in court since the agency acted within the bounds of its powers. However, he also wrote that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” The end of the opinion says that FHFA officers were properly appointed but that lower courts should resolve whether the unconstitutional restriction on the president’s removal power inflicted harm that gives the shareholders a right to request relief in federal court.

Justice Clarence Thomas wrote a concurring opinion arguing that actions taken by federal officials are not necessarily unlawful just because a restriction on the president’s removal power over them is unlawful in the abstract.

Justice Neil Gorsuch wrote an opinion concurring in part in which he argued that the distinction between unconstitutionally _appointed_ officials and unconstitutionally _insulated_ officials should not prevent the court from ruling that an official acted without constitutional authority.

Justice Elena Kagan wrote an opinion concurring in part and concurring in the judgment and Justices Stephen Breyer and Sonia Sotomayor joined part II of her opinion. Kagan agreed with the majority that the FHFA did not exceed the limits of its powers, but she only agreed to hold the agency structure unconstitutional out of respect for precedent. Part II of her opinion agreed with the majority that it would be right to undo the FHFA’s actions only if the president’s inability to fire the director affected those actions.

Justice Sonia Sotomayor wrote an opinion concurring in part and dissenting in part, joined by Justice Breyer. Sotomayor agreed with the parts of the majority opinion upholding the FHFA’s actions under the HERA and discussing potential remedies following remand of the case. Regarding the constitutional question, she argued that the court misapplied the precedent from Seila Law (2020). She wrote, “The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress.”

The court’s decision to hold the structure of the FHFA unconstitutional articulated limits on the kinds of administrative agencies Congress may create and reaffirmed the court’s decision in Seila Law. Each of the Justices’ opinions referenced arguments from the debate surrounding presidential control over administrative officials across the federal government.

The case was consolidated with Yellen v. Collins.

To learn more about the case or executive control of agencies see here:

Additional reading:

Link to the U.S. Supreme Court decision:



Checks and Balances: Idaho lawmakers fail to reauthorize administrative rules for third straight year

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 latest administrative law activity from the U.S. Supreme Court; the U.S. Department of Labor’s move to rescind a Trump-era rule on independent contractor classification; and a rulemaking transparency challenge before the U.S. Court of Appeals for the District of Columbia Circuit. 

At the state level, we take a look at two stories out of Idaho. The first story examines the state legislature’s failure to reauthorize the state’s administrative rules for the third year in a row. In the second story, we review an executive order issued by the state’s lieutenant governor—and later revoked by the governor—banning mask mandates in the state.   

We also highlight a new analysis that examines recent state legislative efforts to change the scope of executive emergency powers in the context of elections. As always, we wrap up with our Regulatory Tally, which features information about the 157 proposed rules and 230 final rules added to the Federal Register in May and OIRA’s regulatory review activity.

In Washington

SCOTUS permits challenges to IRS mandates, declines case on HHS restrictions

What’s the story? The U.S. Supreme Court took action on two administrative law cases since our last edition

In the first case, CIC Services v. Internal Revenue Service (IRS), the unanimous court on May 17 held that the Anti-Injunction Act—a federal law barring lawsuits to prevent the assessment or collection of taxes—did not prevent CIC Services from challenging an IRS regulatory mandate. 

CIC Services, a risk management consulting firm, challenged a notice from the IRS that broadened the scope of information reported by taxpayers and imposed penalties for noncompliance. CIC Services sought to prevent the IRS from enforcing the change, arguing that the notice violated the Administrative Procedure Act (APA) because it should have been issued as a legislative rule, among other claims. The lower courts, without addressing the regulatory challenge, claimed that the AIA prevented them from hearing the case because the regulatory mandate pertained to the assessment and collection of taxes.

The Supreme Court reversed and remanded the lower court’s ruling. Justice Elena Kagan delivered the opinion of the court, arguing that a “suit to enjoin a requirement to report information is not an action to restrain the ‘assessment or collection’ of a tax, even if the information will help the IRS collect future tax revenue.” Kagan’s distinction clarified that the AIA does not block Article III challenges to such reporting requirements.

The court on May 17 dismissed the second case, American Medical Association v. Becerra, in which plaintiffs argued that the U.S. Department of Health and Human Services (HHS) violated the Administrative Procedure Act (APA) and federal healthcare laws when it issued a 2019 rule that placed abortion-related restrictions on federally funded healthcare providers. 

The court declined to hear the case because the Biden administration stated that it was already in the process of changing the regulation through notice-and-comment rulemaking. HHS aims to have a new rule published in late 2021.

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Labor Department rescinds Trump-era gig worker rule

What’s the story? The U.S. Department of Labor on May 6 rescinded the Trump administration’s Independent Contractor Rule, which would have made it easier for employers to classify workers as independent contractors rather than employees.

The Trump-era rule replaced guidance issued during the Obama administration that put forth a six-factor test to determine worker classification. By weighing all six factors equally, the guidance favored employee over independent contractor classification, according to Forbes. The Trump administration’s rule comprised five similar factors but gave two core principles—the extent of employer control over an individual’s work and the individual’s opportunity for profit and loss—greater weight, facilitating independent contractor classification. 

The DOL stated that it rescinded the rule in order to help guarantee minimum wage and overtime protections for workers under the Fair Labor Standards Act (FLSA), which do not apply to independent contractors. The move also aims to facilitate worker access to unemployment insurance, workers compensation, and employer-provided fringe benefits (such as health insurance), according to the department. 

“By withdrawing the Independent Contractor Rule, we will help preserve essential worker rights and stop the erosion of worker protections that would have occurred had the rule gone into effect,” US Secretary of Labor, Marty Walsh, said in a statement.

The Financial Services Institute joined the Coalition for Workforce Innovation, Associated Builders and Contractors of Southeast Texas, and Associated Builders and Contractors Inc. in a lawsuit challenging the rule’s withdrawal, arguing that the DOL acted in an arbitrary manner when it delayed and later withdrew the rule. The groups claim that the rule “provided much needed guidance and clarification of an issue that the Department itself acknowledged to have become fraught with litigation and inconsistent application of classification standards under the FLSA.”

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D.C. Circuit considers rulemaking transparency challenge

What’s the story? A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on May 10 heard oral arguments in Milice v. Consumer Product Safety Commission, a transparency case that questions whether federal agencies can adopt rules citing safety standards that are not publicly available. 

Petitioner Lisa Milice alleged that the Consumer Product Safety Commission’s (CPSC) 2019 rule regarding manufacturing standards for infant bath seats used private industry safety standards without making those standards available to the public. ASTM International, the standards developer, charged $56 to view the standards referenced in the rulemaking.

The agency claimed that federal law allows it to promulgate rules that incorporate private industry standards by reference—a process that allows agencies to publish rules that cite material published elsewhere. ASTM International claimed that it generally makes standards referenced in federal rules publicly available, but that it was unaware of the rulemaking at the time. 

Milice’s attorney, Jared McClain, argued that the CPSC must vacate the rule because the agency unlawfully failed to make the safety standards reasonably available to the public. “We think that reasonable availability means it must be published somewhere in the public domain,” McClain said.

Judges Judith Rogers, Patricia Millett and Robert Wilkins expressed concern about the lack of public availability of safety standards in the CPSC rulemaking. The judges questioned Milice’s standing to bring the case since she did not submit a comment to the agency during the rule’s comment period, but also pressed the CPSC on how Milice could have commented on the rule without access to the safety standards.

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In the states

Idaho lawmakers fail to reauthorize administrative rules

What’s the story? Idaho lawmakers for the third straight year failed to pass legislation to reauthorize the state’s administrative rules for the next fiscal year.

Idaho law requires the state legislature to reauthorize all of the state’s administrative rules each year. Idaho House of Representatives Speaker Scott Bedke (R) told the Idaho Press that the failure to reauthorize the state’s administrative rules stemmed from a debate between House and Senate leaders over the current legislative practice allowing one chamber, rather than both, to approve or reject a policy-related rule. Bedke and others argue that consent from both chambers should be required.

 “Both the House and the Senate chose just not to take it up, and there we are,” said Bedke. “It is unfinished business.”

In order to keep the state’s regulations in effect beyond July 1, the executive branch plans to re-publish thousands of pages of administrative rules as temporary rules. The temporary reauthorization will allow lawmakers to review the rules again in the 2022 legislative session.

Governor Brad Little (R) in 2019 directed a rules review process that revised or eliminated roughly 75% of the state’s administrative code after the state legislature failed to reauthorize the state’s administrative rules. When the state legislature did not act to reauthorize the rules again in 2020, Little proposed that one-fifth of the state’s administrative rules, rather than all rules, should expire each year, allowing lawmakers time to perform more in-depth reviews. Lawmakers’ inaction in 2021 delayed implementation of Little’s proposal.   

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Idaho governor rescinds lieutenant governor’s order banning mask mandates

What’s the story? Idaho Governor Brad Little (R) on May 28 rescinded an executive order issued in his absence by Lieutenant Governor Janice McGeachin (R) that banned mask mandates in the state. Little called McGeachin’s executive order an “irresponsible, self-serving political stunt” that, in his words, “amounts to tyranny—something we all oppose.”

McGeachin issued the executive order on May 27 in her capacity as acting governor while Little traveled to a conference out of state. The order prohibited state and local government entities from issuing mask mandates in order to mitigate the spread of contagious diseases, such as COVID-19. 

In a statement posted to her gubernatorial campaign website, McGeachin claimed that she signed the order, “to protect the rights and liberties of individuals and businesses by prohibiting the state and its political subdivisions—including public schools—from imposing mask mandates in our state.”

Little told the Idaho Capital Sun that McGeachin issued the executive order without his knowledge or approval. He rescinded the executive order the following day.

“Taking the earliest opportunity to act solitarily on a highly politicized, polarizing issue without conferring with local jurisdictions, legislators, and the sitting Governor is, simply put, an abuse of power,” said Little in a statement.

Idaho Chief Deputy Attorney General Brian Kane on May 28 issued an opinion stating that, in his view, McGeachin’s executive order exceeded her authority as acting governor. “Oddly, it seems to have been issued in an effort to undermine the existing authorities of the state and its political subdivisions to issue mask mandates,” wrote Kane. “This executive order appears to run counter to both the Idaho Constitution and the Governor’s statutory executive order authority.” 

McGeachin on May 19 announced her candidacy for Idaho governor in the 2022 election. Little, a first-term governor, had yet to announce whether he will run for reelection as of June 3. The Idaho governor and lieutenant governor are elected separately and do not run on a joint ticket

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State lawmakers address emergency election powers

The National Conference of State Legislatures (NCSL) issued a new report examining state-level responses to emergency powers yielded by executive branch actors during the coronavirus pandemic. The report in particular examines legislative efforts by state lawmakers to address the scope of executive emergency powers in the context of state elections. The report divided the legislation into two categories: bills that would limit executive branch emergency powers over elections and bills that would expand executive branch emergency powers over elections.

Eighteen of the 20 bills aiming to address emergency powers over elections would limit executive authority to make changes to electoral processes, such as suspending election laws or changing access to polling locations. The majority of these bills were pending as of the April report, but two bills in North Dakota had failed and two bills (one in Ohio and one in Kentucky) had passed.

The remaining two bills would expand the executive branch’s emergency powers over elections. Legislation pending in New York would authorize the governor to delay or suspend elections while a bill in North Carolina would expand the state election chief’s authority to conduct elections when emergencies disrupt normal schedules.

“The COVID-19 pandemic has clearly intensified tensions between the executive and legislative branches,” said NCSL’s legislative oversight expert, Pam Greenberg. “Lawmakers are taking action this year to ensure their fundamental role in future emergencies.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 35 significant regulatory actions. 
  • Five rules approved without changes; recommended changes to 30 proposed rules.
  • As of June 1, 2021, OIRA’s website listed 56 regulatory actions under review.
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Unanimous U.S. Supreme Court rules in favor of pre-enforcement challenge against IRS regulation

The U.S. Supreme Court ruled unanimously in CIC Services v. Internal Revenue Service that CIC Services, a risk management consulting firm, may challenge an IRS records reporting regulation without first violating the new regulation and paying a tax penalty.

At issue was whether the Anti-Injunction Act (AIA), a federal law that bars lawsuits to prevent the assessment or collection of taxes, blocked CIC’s challenge in this case. 

Elena Kagan delivered the opinion of the court on May 17, arguing that a “suit to enjoin a requirement to report information is not an action to restrain the ‘assessment or collection’ of a tax, even if the information will help the IRS collect future tax revenue.” For the court, that distinction meant that the AIA did not block challenges to such reporting requirements.

Justice Sonia Sotomayor wrote a concurring opinion arguing that the ruling in CIC may not apply to cases brought by individual taxpayers. Justice Brett Kavanaugh also wrote a concurring opinion, arguing that the CIC decision narrowed earlier court precedent about the AIA in a way he supported.

The U.S. Supreme Court sent the case back to the circuit court for further proceedings.

 To learn more about the case, see here: 

CIC Services v. Internal Revenue Service

Additional reading:

Link to the U.S. Supreme Court opinion:

https://www.supremecourt.gov/opinions/20pdf/19-930_d1o3.pdf



U.S. Supreme Court dismisses case challenging regulations related to abortion under Title X family planning program

The U.S. Supreme Court dismissed American Medical Association v. Becerra in its order list published on May 17. The case concerned whether the U.S. Department of Health and Human Services (HHS) violated the Administrative Procedure Act (APA) and federal healthcare laws when it issued a 2019 rule that placed abortion-related restrictions on healthcare providers receiving federal funds under a Title X family planning program. 

The court’s order dismissing the case stated that the Joe Biden (D) administration had filed a letter saying that it would enforce the challenged regulations outside the state of Maryland while it worked through the notice and comment rulemaking process to override them. The administration said it aimed to have a new final rule published early in the fall of 2021 so that it could go into effect before the 2022 Title X funding announcement.

The court also rejected requests from 19 states and the American Association of Pro-Life Obstetricians & Gynecologists to intervene to defend the rule.

The case was consolidated with Oregon v. Cochran and Cochran v. Mayor and City Council of Baltimore, which were also dismissed. 

To learn more about the case or the Administrative Procedure Act see here:

Additional reading:

Link to the U.S. Supreme Court order:

https://www.supremecourt.gov/orders/courtorders/051721zor_6537.pdf

Link to the docket for _AMA v. Becerra_:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-429.html

Link to the letter from the Biden administration:

https://www.supremecourt.gov/DocketPDF/20/20-429/177132/20210503144133267_20-429%20Am%20Med%2020-454%20and%2020-539.pdf



Checks and Balances: Biden EO spurs removal of publicly available guidance document portals

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 removal of publicly accessible guidance document portals by federal agencies in response to President Joe Biden’s (D) Executive Order 13992; three U.S. Supreme Court decisions affecting rulemaking practices, issue exhaustion requirements, and the scope of agency authority; and the latest efforts by federal lawmakers to use the Congressional Review Act (CRA) to reject administrative rules issued during the last months of the Trump administration. 

At the state level, we take a look at a pair of cases before the Wisconsin Supreme Court that could help distinguish between legislative and agency authority in the state; varying state responses to federal nullification proposals; and state efforts to limit enforcement of federal gun laws. 

We also highlight a new paper examining lessons from the states on applying the nondelegation doctrine. As always, we wrap up with our Regulatory Tally, which features information about the 183 proposed rules and 254 final rules added to the Federal Register in April and OIRA’s regulatory review activity.


In Washington

Biden EO spurs removal of publicly available guidance document portals

What’s the story? Federal agencies are working to comply with an executive order issued by President Joe Biden (D) that requires agencies to remove their publicly accessible guidance document portals. 

Guidance documents are not legally binding, but rather serve to explain, interpret, or advise interested parties about rules, laws, and procedures. A 1992 report from the Administrative Conference of the United States (ACUS), however, found that agencies sometimes use guidance in ways that give those documents the same authority as legally binding rules.

Guidance documents are not typically collected in federal publications such as the Federal Register or the Code of Federal Regulations. President Donald Trump’s (R) Executive Order 13891 directed federal agencies to create agency-specific, publicly available guidance document portals to catalogue agency guidance.

E.O. 13891 mirrored the intent of the Guidance out of Darkness Act—legislation that received bipartisan support in the last two Congresses, including the support of then-Senator Kamala Harris (D).

Biden’s E.O. 13992 of January 20 revoked six Trump executive orders, including E.O. 13891. Biden’s order claimed that the rescinded orders constituted “harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront [the coronavirus disease 2019 (COVID19) pandemic, economic recovery, racial justice, and climate change].” By revoking the orders, E.O. 13992 aimed to provide federal agencies with the “flexibility to use robust regulatory action to address national priorities.”

In a February 8 letter to Biden, 21 Republican senators opposed the directive.

More than 70 agencies and departments (not including numerous sub-agencies) set up guidance document portals pursuant to E.O. 13891, according to an analysis from the Competitive Enterprise Institute (CEI). Ten agencies have since removed their portals as of March 30. 

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SCOTUS issues opinions on rulemaking, issue exhaustion, agency authority

What’s the story? The U.S. Supreme Court issued three opinions since our last edition concerning administrative rulemaking practices, issue exhaustion requirements, and the scope of agency authority. Here are the highlights:

The court on April 1 issued a unanimous opinion in Federal Communications Commission (FCC) v. Prometheus Radio Project in which Justice Brett Kanaugh applied the zone of interest test to uphold broadcast ownership changes issued by the FCC, which challengers claimed were based on flawed data. The court ruled that the FCC had reasonably considered the effects of its orders when it changed the broadcast ownership rules in 2017 and, therefore, the challenged rulemaking did not violate the arbitrary-or-capricious test. The ruling clarified that the Administrative Procedure Act does not require reasonable agency decision-making to rely on perfect empirical or statistical data.

“Judicial review under [the arbitrary-or-capricious] standard is deferential, and a court may not substitute its own policy judgment for that of the agency,” wrote Justice Kavanaugh in the opinion. “A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.”

The court on April 22 issued a unanimous opinion in Carr v. Saul holding that issue exhaustion requirements, which require individuals to present legal objections in front of an agency before they can address those objections in federal court, do not apply to Appointments Clause challenges concerning the administrative law judges (ALJ) of the Social Security Administration.

“Taken together, the inquisitorial features of SSA ALJ proceedings, the constitutional character of petitioners’ claims, and the unavailability of any remedy make clear that ‘adversarial development’ of the Appointments Clause issue ‘simply [did] not exist’ (and could not exist) in petitioners’ ALJ proceedings,” wrote Justice Sonia Sotomayor in the opinion. “The Courts of Appeals therefore erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims.”

Lastly, the court on April 22 unanimously checked the authority of the Federal Trade Commission in AMG Capital Management, LLC v. Federal Trade Commission. The court held that Section 13b of the Federal Trade Commission Act does not authorize the agency to seek certain forms of equitable monetary relief, nor does it authorize courts to award such relief.

“If the Commission believes [its] authority too cumbersome or otherwise inadequate, it is, of course, free to ask Congress to grant it further remedial authority,” wrote Justice Stephen Breyer in the opinion. “We must conclude, however, that §13(b) as currently written does not grant the Commission authority to obtain equitable monetary relief.”

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U.S. Senate advances CRA resolution, courts review CRA practices

What’s the story? Democratic members of Congress introduced six resolutions of disapproval under the Congressional Review Act (CRA) prior the April 4 deadline. One resolution aiming to restore Obama-era methane emissions standards passed the U.S. Senate on April 28.

CRA 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. 

Most recently, the U.S. Senate on April 28 voted 52-42 to pass a CRA resolution blocking a September 2020 rule by the Environmental Protection Agency (EPA) that reversed the Obama administration’s methane emissions standards. If passed by the House and signed into law, the resolution would restore standards set by the Obama administration.

Meanwhile, a coalition of county governments are appealing a CRA-related case, Kansas Natural Resource Coalition v. U.S. Fish and Wildlife Service, to the U.S. Supreme Court. The petitioners argue that the Environmental Protection Agency violated the CRA by failing to submit an Endangered Species Act regulation to Congress for its review. Agencies fail to submit about 12 percent of their rules to Congress for CRA review, according to the Cato Institute.

The district court dismissed the case on jurisdictional grounds and the United States Court of Appeals for the Tenth Circuit affirmed the lower court’s decision.

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In the states

Wisconsin Supreme Court to distinguish between legislative and agency authority

What’s the story? Two environmental cases in Wisconsin have pitted the state legislature against the state Department of Natural Resources (DNR) in a disagreement over which government entity is authorized to regulate water pollution and irrigation practices. The court’s decisions could help clarify the bounds of legislative and agency authority in the state.

In Clean Wisconsin, Inc. v. DNR, challengers sued the DNR in an effort to compel the agency to enforce its water pollution regulations. 

After an administrative law judge (ALJ) ordered the agency to limit the size of a dairy herd causing nearby groundwater contamination, the DNR under then-Governor Scott Walker (R) did not enforce the ALJ’s order. The agency argued that Wisconsin Act 21—a 2011 law that prohibits state agencies from taking actions not specifically authorized by the state legislature—prohibited the agency from acting on the order.

A Dane County judge in 2016 held that the DNR had the authority to limit the size of the dairy herd to address water pollution. The DNR appealed the decision to the Wisconsin Supreme Court. The current DNR has changed its position under Governor Tony Evers (D) and now claims that it has the authority to regulate in the case.

In a second consolidated case, challengers sued the DNR seeking stricter enforcement of regulations regarding large-scale water withdrawals for irrigation. Challengers claim that the agency failed to consider the cumulative negative impact on water levels in nearby lakes and streams when it issued permits for nine high-capacity wells. As in the previous case, the DNR argued that Act 21 prevented the agency from considering the cumulative impact of the new wells. 

In its request for the Wisconsin Supreme Court to hear the case, a three-judge panel of the Wisconsin Court of Appeals District II stated that “the court’s determination regarding the scope and breadth of Act 21 will have implications far beyond the permitting process for high capacity wells and pollution discharge elimination systems and will touch every state agency within Wisconsin.”

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States give mixed response to federal nullification proposals

What’s the story? Lawmakers in Alaska, Arkansas, Iowa, Montana, North Dakota, Texas, and Utah have considered or implemented legislation that, in the view of state lawmakers, would allow the states to ignore some federal laws and orders. Last month, we reviewed similar legislation in Idaho, which failed to clear the Senate State Affairs Committee on May 3.

The Alaska Senate State Affairs Committee on April 14 considered legislation filed by state Senator Lora Reinbold (R) that would provide a vehicle for state lawmakers to nullify federal statutes, regulations, or executive orders that state legislators deem to exceed the scope of federal powers.

Reinbold expects the legislation to move quickly through the Republican-majority Alaska State Senate. In the Alaska House of Representatives, which is controlled by a coalition majority, the bill is expected to face questions over potential conflicts with the Supremacy Clause in Article VI of the U.S. Constitution. According to the Supremacy Clause, laws under the federal government’s authority preempt overlapping state laws. 

Concerns about potential conflicts with the Supremacy Clause contributed to the failure of a similar proposal in the Republican-majority North Dakota Legislative Assembly.

On the other hand, Utah Governor Spencer Cox (R) on March 23 and Arkansas Governor Asa Hutchinson (R) on April 8 signed comparable legislation into law specific to executive orders. Montana Governor Greg Gianforte (R) signed similar legislation into law on April 23. A nearly identical bill is also pending in the Republican-majority Iowa General Assembly. 

In the Republican-majority Texas State Legislature, pending legislation would direct state agencies not to implement any federal regulations deemed unconstitutional.

Michael Maharrey, a spokesman for the 10th Amendment Foundation, told the Anchorage Daily News that the Alaska bill and others are “part of a broader movement we’ve seen this year — particularly in Republican-controlled legislatures — to review federal acts and attempt to rein in federal overreach.”

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States seek non-enforcement of federal gun laws

What’s the story? Republican state lawmakers in more than a dozen states have moved to limit state and local law enforcement agencies from administering certain federal gun laws. The lawmakers aim to counteract what they view as the potential for the Democratic-controlled federal government to pass federal firearms legislation.

These states include Alabama, Arkansas, Nebraska, Oklahoma, South Carolina, Tennessee, Wyoming, Montana, New Hampshire, North Dakota, South Dakota, West Virginia, and Iowa.

Lawmakers in some states, including Montana, have advanced or approved proposals to nullify any new federal firearms restrictions, such as ammunition limits or weapon bans.

In other states, such as Arizona and Tennessee, lawmakers have moved to prevent state and local police from enforcing federal gun laws deemed in violation of the Second Amendment. Arkansas lawmakers on April 28 overrode a veto by Governor Asa Hutchinson (R) to enact such legislation. 

Lawmakers in states such as Utah and Alabama are seeking to nullify federal gun laws altogether.

Opponents of federal firearms non-enforcement bills claim that the legislation creates confusion for state and local law enforcement and could run afoul of the U.S. Constitution’s Supremacy Clause. Opponents also compare current legislation to similar laws passed by several states under former President Barack Obama (D), which judges have since ruled unconstitutional.

Supporters of the legislation argue that the federal government, pursuant to the Second and Tenth Amendments, does not have the authority to regulate the ownership of firearms. Some state lawmakers, including Arizona state Representative Leo Biasiucci (R), have compared the nullification proposals to state-level marijuana legislation that legalizes marijuana despite federal law.

“The main issue there is the Supremacy Clause,” Jacob Charles, executive director of the Center for Firearms Law at Duke Law School, told the Associated Press

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State lessons in nondelegation

Law professor Jonathan Adler recently highlighted two new papers from administrative law scholars Benjamin Silver and Daniel Walters that put forth lessons on the nondelegation doctrine gleaned from state-level experience.

Silver’s paper, “Nondelegation in the States,” argues that disparate state nondelegation practices are rooted in common themes drawn from the separation of powers and sovereign authority:

“American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine’s disparate and varied applications.” 

Walters’ paper, “Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting,” examines state-level applications of the nondelegation doctrine to help inform how the United State Supreme Court’s decision in Gundy v. United States could affect its nondelegation jurisprudence:

“This article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, I show that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than are states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Court actually does over a series of cases, not in what it says it is going to do. Moreover, it suggests significant limitations in the ability of the Gundy dissent’s approach to provide any ex ante guidance to Congress, the lower courts, or even future Supreme Courts about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 22 significant regulatory actions. 
  • No rules approved without changes; recommended changes to 20 proposed rules; two rules subject to a statutory or judicial deadline.
  • As of May 3, 2021, OIRA’s website listed 46 regulatory actions under review.
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Congressional resolution would reverse Trump-era rule specifying when Social Security administrative appeals judges would decide cases

On April 1, 2021, U.S. Representative John Larson (D-Conn.) introduced a resolution in the U.S. House of Representatives under the Congressional Review Act (CRA) to block a rule made by the Social Security Administration (SSA) in November 2020. 

The rule, published in the Federal Register on November 16, 2020, aims to clarify when administrative appeals judges on the Social Security Administration Appeals Council may hold hearings and issue decisions.

The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Both houses of Congress have to pass a resolution disapproving the SSA rule and President Biden would then have to sign that resolution into law to block the rule. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

The SSA rule went into effect on December 16, 2020. A recent edition of the Congressional Record clarified that Congress has 60 days from February 3, 2021, to use the CRA to block regulatory activity taken near the end of the Trump administration. Rules published by the Trump administration after August 21, 2020 fall within the CRA lookback window.

Rep. Danny Davis (D-Ill.) cosponsored the resolution. 

To learn more about the Congressional Review Act and its use, see here. Want to go further? Sign up today for our Learning Journey on the Congressional Review Act.

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Federal Register weekly update: 68 new final rules

Banner with the words "The Administrative State Project"

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 overall regulatory activity, accounting for both regulatory and deregulatory actions.

From April 5 through April 9—the 12th week of the Biden administration—the Federal Register grew by 1,390 pages for a year-to-date total of 18,882 pages. During the same period of the Trump administration in 2017, the Federal Register grew by 982 pages for a year-to-date total of 18,078 pages.

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

This week’s Federal Register featured the following 496 documents:

  • 375 notices
  • 15 presidential documents
  • 38 proposed rules
  • 68 final rules

One final rule from the National Oceanic and Atmospheric Administration regarding the taking and importing of marine mammals and one proposed rule concerning revisions to the Environmental Protection Agency’s lead and copper rule were deemed significant under E.O. 12866—defined by the potential to 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 Biden administration has issued 11 significant proposed rules and seven significant final rules as of April 9.

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.

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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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Checks and Balances: Kansas proposal would create legislative veto over agency rules

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 check in on the approaching deadline to repeal end-of-term regulatory activity by the Trump administration via the Congressional Review Act. We also review recent SCOTUS activity concerning administrative law, and a new Biden executive order that rescinded executive orders related to the administrative state issued by former President Donald Trump (R). 

At the state level, we take a look at a proposed constitutional amendment in Kansas that would create a legislative veto over state agency rules; a ruling from the Wyoming Supreme Court that thwarted a local commission’s attempted enforcement of nonbinding guidance; and an effort by Washington state lawmakers to limit state agency use of artificial intelligence (AI) technology. 

We also highlight a new Working Paper Series that examines the Administrative Procedure Act (APA) on its 75th anniversary. As always, we wrap up with our Regulatory Tally, which features information about the 157 proposed rules and 264 final rules added to the Federal Register in January and OIRA’s regulatory review activity.


In Washington

April 4 is the deadline for Congress to repeal regulatory activity from the end of the Trump administration

  • What’s the story? The Biden administration has until April 4 to use the provisions of the Congressional Review Act (CRA) to repeal final rules issued at the end of the Trump administration. 
  • The CRA is a federal law passed in 1996 that creates a 60-day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule.
  • The February 3 edition of the Congressional Record stated that Congress has 60 days from February 3 to use the CRA to rescind regulations and informal rules issued at the end of the Trump administration. Daniel Pérez, a senior policy analyst at the George Washington University Regulatory Studies Center, estimated there may be as many as 1,354 of these rules.
  • The law defines this 60-day period as days where Congress is in continuous session. This means the projected deadline to block end-of-term regulatory activity from the Trump administration is April 4. That date could move later into April if either chamber of Congress adjourns for longer than three days before then.
  • Since the law’s creation in 1996, Congress has used the CRA to repeal 17 rules published in the Federal Register. Before 2017, Congress had used the CRA successfully one time—in 2001—to overturn a rule on ergonomics in the workplace. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. Congress ultimately repealed 16 rules using the CRA during the Trump administration.
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SCOTUS to weigh in on administrative law cases

  • What’s the story? The U.S. Supreme Court in the last month heard oral arguments in two administrative law cases that raise questions about the scope of executive control of agencies and the separation of powers.
  • In United States v. Arthrex Inc., the court will determine whether department heads have the authority to appoint administrative patent judges (APJs) or whether the U.S. Constitution requires that APJs be appointed by the president with the advice and consent of the U.S. Senate. The court heard oral arguments in the case on March 1.
  • In the consolidated cases Carr v. Saul and Davis v. Saul, the court will clarify whether Appointment Clause challenges must first be exhausted through administrative appeals within the Social Security Administration before they can be heard by the federal courts. Willie Carr, a litigant in the case, appealed his SSA benefits denial to the federal courts and added to his appeal the claim that the administrative law judge (ALJ) who decided his case was improperly appointed. The court heard oral arguments in the case on March 3.
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Biden revokes additional Trump executive orders on the administrative state

  • What’s the story? President Joe Biden (D) on February 24 issued Executive Order 14018: Revocation of Certain Presidential Actions that revoked a series of executive orders and presidential memoranda issued by former President Donald Trump (R), including two executive orders related to regulatory practice.
  • Biden previously issued three executive orders during his first days in office that revoked 10 executive orders issued by former President Donald Trump (R) related to energy regulation policy, regulatory procedure, and the civil service.
  • E.O. 14018 revoked Trump’s E.O. 13772: Core Principles for Regulating the United States Financial System, which put forth a set of standards, or core principles, to guide regulatory actions that impact the financial industry. The core principles sought to foster economic growth, advance the domestic and international competitiveness of American companies, and streamline financial regulations, according to the order.
  • Biden’s recent order also revoked Trump’s Executive Order 13979: Ensuring Democratic Accountability in Agency Rulemaking, which aimed to increase executive oversight of agencies by preventing career agency staff from authorizing regulations.
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In the states

Kansas proposal would create legislative veto over agency rules

  • What’s the story? Kansas Attorney General Derek Schmidt (R) and a group of Republican state lawmakers on February 23 proposed a constitutional amendment that would allow voters to create a legislative veto over state executive agency rules. 
  • The amendment would allow lawmakers to repeal or suspend state executive agency rules with the goal of increasing legislative oversight of regulatory activity.
  • Lawmakers passed similar legislation in 1984, but the Kansas Supreme Court ruled it unconstitutional. The proposed constitutional amendment would permit the legislative veto.
  • “Our system of government requires checks and balances,” said Schmidt. “This proposal would check the power of the ever-growing administrative state by making sure the final power to make law rests where it should – with the people’s elected representatives in the Legislature – and restore balance by requiring real accountability for rules, regulations and executive orders.”
  • Senate President Ty Masterson (R), House Speaker Ron Ryckman (R), Senate Vice President Rick Wilborn (R), House Speaker Pro Tem Blaine Finch (R), Senate Majority Leader Gene Suellentrop (R) and House Majority Leader Dan Hawkins (R) joined with Schmidt in support of the proposal.
  • Democratic lawmakers have stated opposition to the proposal. “The Legislature already has oversight over agencies in the executive branch,” said Senate Democratic Leader Dinah Sykes. “The proposed amendment is nothing more than yet another attempt by … Republican leadership to undermine Governor Kelly and her cabinet.”
  • If approved by both chambers of the state legislature, the constitutional amendment would appear before Kansas voters on the November 2022 ballot.
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Wyoming Supreme Court rejects commission’s attempted use of binding guidance

  • What’s the story? The Wyoming Supreme Court on February 1 unanimously rejected a local planning commission’s effort to enforce a nonbinding guidance document as if it were a regulation with the force of law.
  • The court ruled in Asphalt Specialties Co., Inc. v. Laramie County Planning Commission that the commission could not rely on its guidance document detailing a comprehensive land-use vision plan to block Asphalt Specialties Co. from moving forward with a mining operation on its land. 
  • In an opinion by Justice Lynne J. Boomgaarden, the court stated that the commission’s authority only allowed it to restrict land use on zoned properties. Since the company’s property was not zoned, the commission had no authority to direct its land use. “The Commission … exceeded its statutory authority when it utilized its comprehensive land use plan and the site plan review process to outright deny ASCI use of its land for a limited gravel mining operation,” wrote Boomgaarden.
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Washington lawmakers seek to limit agency use of artificial intelligence 

  • What’s the story? A bill in the Washington State Legislature aims to restrict state government agencies’ use of artificial intelligence (AI) technology. The legislation targets automated decisions systems—algorithms that analyze data to facilitate government decision making.
  • Senate Bill 5116, sponsored by state Senators Bob Hasegawa (D), Sam Hunt (D), Patty Kuderer (D), and Claire Wilson (D), would prohibit state agencies from using AI that either produces what are deemed discriminatory outcomes or renders final decisions that affect the rights of state residents. The bill would also prevent state agencies from using AI-enabled technology for certain profiling practices in public spaces. 
  • In order to use an automated decision system, agencies would be required to provide publicly available accountability reports ensuring that the technology is not discriminatory. 
  • The ACLU of Washington and a coalition of digital rights groups support the legislation. “What this bill would give Washington the opportunity to do is set a precedent, raise awareness of the issue that peoples’ lives are being affected by algorithmic decision making tools,” said ACLU project manager Jennifer Lee in an interview with Geekwire. 
  • During a January hearing of the Senate State Government and Elections Committee, law enforcement and tech groups expressed concern about the legislation’s potentially negative implications for red light cameras, fingerprint analysis, and other common government AI uses. “We just want to make sure there aren’t unintended consequences on uses that are pretty standard,” said Vicki Christopherson of the Internet Association.
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The APA turns 75

In recognition of the Administrative Procedure Act’s (APA) 75th anniversary, the C. Boyden Gray Center for the Study of the Administrative State organized a Working Paper Series featuring new analysis from administrative law scholars on the APA’s origins, procedures, and proposed reforms. The series features the following scholarship:

The C. Boyden Gray Center will publish the full Working Paper Series on the APA’s 75th anniversary in the Spring 2021 edition of the George Mason Law Review.

  • Want to go deeper
    • Click here for a link to the Working Paper Series.

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 16 significant regulatory actions. 
  • No rules approved without changes; recommended changes to eight proposed rules; eight rules withdrawn.
  • As of March 1, 2021, OIRA’s website listed 22 regulatory actions under review.
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