Tagadministrative state

Unanimous U.S. Supreme Court rejects appointments clause challenge to Puerto Rican debt board

On June 1, a unanimous U.S. Supreme Court ruled that the Appointments Clause of the U.S. Constitution does not require members of the Puerto Rican Financial Oversight and Management Board (FOMB) to face confirmation by the U.S. Senate.

The Appointments Clause gives the president authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These officers include ambassadors, heads of Cabinet-level departments, and federal judges. The U.S. Supreme Court ruled that because FOMB members have primarily local powers and duties that the Appointments Clause does not restrict how they are selected.

Congress created the FOMB in 2016 and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rican government. The seven-member board is made up of one member chosen at the president’s discretion and six other members selected by the president from a list written by members of Congress.

Aurelius Investment LLC and the Unión de Trabajadores de la Industria Eléctrica y Riego challenged the FOMB’s authority, arguing that board members’ appointments violated the Appointments Clause. Aurelius and the union claimed that the board members are “Officers of the United States” who must be nominated by the president and confirmed by the Senate. The board argued that because its activities are primarily local in nature its members do not qualify as “Officers of the United States.” The U.S. Supreme Court ruled in favor of the board and sent the case to the U.S. Court of Appeals for the First Circuit for further proceedings.

Justice Clarence Thomas wrote a concurring opinion arguing that the court made the right decision for the wrong reasons. He would have relied on the original public meaning of the phrase _officers of the United States_ to resolve the case.

Justice Sonia Sotomayor wrote a separate concurring opinion arguing that “territorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.” She stated that because the parties in the case did not address the implications of Puerto Rican home rule on the Appointments Clause she chose to concur in the judgment of the court.

Additional reading:

Administrative State Project

Click here to read the U.S. Supreme Court decision.


OIRA reviewed 56 significant rules in May

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 56 significant regulatory actions issued by federal agencies in May 2020. The agency approved 13 rules without changes and approved the intent of 40 rules while recommending changes to their content. Agencies withdrew three rules from the review process.

OIRA reviewed 36 significant regulatory actions in May 2019, 22 significant regulatory actions in May 2018, and four significant regulatory actions in May 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 46 significant regulatory actions each May.

OIRA has reviewed a total of 218 significant rules so far in 2020. The agency reviewed a total of 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of June 1, 2020, OIRA’s website listed 139 regulatory actions under review.

OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, click on the “learn more” button below.



Group of states and cities sue Trump administration over rollback of Obama administration fuel efficiency standards

A group of 23 states, 4 cities, and the District of Columbia are challenging in court Trump administration efforts to change federal fuel efficiency requirements established by the Obama administration. On May 27, the group filed a lawsuit in the United States Court of Appeals for the D.C. Circuit asking the court to review new fuel efficiency standards set by federal agencies in April.

The Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) set the new standards in a final rule published in the Federal Register on April 30. The rule gives the auto industry more time to decrease how much gasoline their vehicles use and how much carbon dioxide they emit.

In a press release announcing the lawsuit, California Attorney General Xavier Beccera argued that the Trump administration rule violates the Clean Air Act and the Administrative Procedure Act (APA), and that new standards are too loose. He wrote, “The rule takes aim at the corporate average fuel efficiency standards, requiring automakers to make only minimal improvements to fuel economy—on the order of 1.5 percent annually instead of the previously anticipated annual improvement of approximately 5 percent. The rule also guts the requirements to reduce vehicles’ greenhouse gas emissions, allowing hundreds of millions of metric tons of avoidable carbon emissions into our atmosphere over the next decade.”

In a press release announcing the new fuel efficiency standards rule, the NHTSA wrote that the rule “reflects the realities of today’s markets, including substantially lower oil prices than in the original 2012 projection, significant increases in U.S. oil production, and growing consumer demand for larger vehicles.” The release quotes EPA Administrator Andrew Wheeler saying, “Our final rule puts in place a sensible one national program that strikes the right regulatory balance that protects our environment, and sets reasonable targets for the auto industry. This rule supports our economy, and the safety of American families.”

The rule is scheduled to go into effect on June 29, 2020.

Additional reading:

 

Link to the lawsuit:
https://oag.ca.gov/system/files/attachments/press-docs/5.27.20%20Petition%20for%20Review.pdf

Text of the fuel efficiency rule:
https://www.federalregister.gov/documents/2020/04/30/2020-06967/the-safer-affordable-fuel-efficient-safe-vehicles-rule-for-model-years-2021-2026-passenger-cars-and

Link to Beccera’s press release:
https://oag.ca.gov/news/press-releases/attorney-general-becerra-files-lawsuit-challenging-trump-administration%E2%80%99s-2

Link to NHTSA press release:
https://www.nhtsa.gov/press-releases/safe-final-rule



Federal Register weekly update; smallest weekly 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 May 25 to May 29, the Federal Register grew by 1,620 pages for a year-to-date total of 32,976 pages. Over the same period in 2019 and 2018, the Federal Register reached 25,492 pages and 25,544 pages, respectively. As of May 29, the 2020 total led the 2019 total by 7,484 pages and the 2018 total by 7,432 pages.

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

This week’s Federal Register featured the following 459 documents:
• 383 notices
• six presidential documents
• 28 proposed rules
• 42 final rules

Two proposed rules concerning the federal recruitment and appointment of military spouses and emergency preparedness for certain nuclear reactors were deemed significant under E.O. 12866—meaning that they 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 20 significant proposed rules and 28 significant final rules as of May 29.

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 2018 and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register

Click here to find yearly information about additions to the Federal Register from 1936 to 2018: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2018



New regulation allows U.S. Secretary of Labor to overturn agency appeal decisions

New regulations from the U.S Department of Labor (DOL) might allow the public to hold the agency more accountable for decisions it makes during adjudication.

On May 20, Secretary of Labor Eugene Scalia published a final rule that establishes a system allowing him to review cases decided by the agency Administrative Review Board (ARB) and Board of Alien Labor Certification Appeals (BALCA).

The rule empowers the secretary of labor to oversee appeals from decisions made by agency Administrative Law Judges (ALJs). ALJs are officials who preside over federal administrative hearings. By giving the secretary more responsibility for the outcome of appeals from agency hearings, the rule gives the public an official to hold accountable for agency decisions.

According to the text of the rule published in the Federal Register, previous rules created the ARB and BALCA to make intra-agency appeals decisions in the name of the secretary of labor without giving the secretary a way to review the power exercised on his or her behalf.

In an op-ed announcing the rule, Scalia argued, “Our new system allows the ARB to continue its important work deciding administrative appeals, but gives the Secretary the authority to step in when a case is wrongly decided. The new regulations also contain due process protections so the Department fairly exercises its dual roles as litigant and judge.”

Seth Harris, who worked for the DOL when the ARB was created, opposes the plan, arguing that giving the secretary review authority over appeals might bias agency decision making. “The idea that this is an impartial, quasi-judicial panel is blown to smithereens because the secretary, if he gets lobbied by one party or the other, can simply overturn what the board has decided,” Harris told Bloomberg Law.

Supporters of giving the secretary more control of appeals include David Fortney, who worked for the DOL under George H.W. Bush. Fortney told Bloomberg Law that “I think that, on its face, it sounds modest—it’s not. It is terribly important because every major program that the Labor Department administers and enforces largely goes through the ARB, and this will ensure that there aren’t rogue decisions.”

Adjudication is the way agencies resolve disputes between the agency and people or between two private parties. Through adjudication, agencies will issue an order to settle the dispute and, in some cases, set agency policy for similar cases in the future. This new rule gives the secretary of labor more power in the adjudication process.

The rule is scheduled to go into effect on June 19, 2020.

Additional reading:

Text of the final rule:
https://www.federalregister.gov/documents/2020/05/20/2020-10909/rules-concerning-discretionary-review-by-the-secretary

Link to Scalia op-ed:
https://townhall.com/columnists/secretaryeugenescalia/2020/05/19/new-labor-regulations-help-keep-government-accountable-n2569073

Link to Bloomberg Law article:
https://news.bloomberglaw.com/daily-labor-report/labor-chief-scalia-reins-in-review-board-earning-mixed-reviews



Trump executive order aims to protect procedural rights in agency adjudication

President Donald Trump (R) on May 19 issued an executive order aimed at providing regulatory relief to spur economic recovery from the coronavirus pandemic. In addition to targeted regulatory actions, the order also contains provisions that seek to promote economic recovery by safeguarding procedural rights and ensuring fairness in agency adjudication and enforcement.

The order puts forth what it deems a set of “principles of fairness in administrative enforcement and adjudication” and directs agencies to comply with the principles where appropriate as part of their pandemic response efforts. The principles include broad standards of promptness, fairness, and transparency in adjudication and enforcement proceedings as well as more specific procedural due process protections, such as requiring that adjudication be free from government coercion and that agency adjudicators be independent of enforcement staff. These principles build on Trump’s October 2019 Executive Order 13892, which aimed to curb what the order referred to as administrative abuses by requiring agencies to provide the public with fair notice of regulations.

“[President Trump] knows that what will jump-start the economy is not Big Government, but the American people,” said White House Office of Information and Regulatory Affairs Administrator Paul Ray in _The Washington Times_. “That’s why this president is fighting the economic emergency by returning even more liberty to the people.”

Some critics of the order expressed concern that agencies would respond by suspending regulatory enforcement altogether. “That’s the part that gives me the greatest concern, the idea of nonenforcement and telling agencies without any real basis or explanation that more lax enforcement will help us economically,” said Project on Government Oversight senior policy analyst Sean Moulton in _The Hill_.

Agency adjudication aims to resolve a dispute either between a federal agency and a private party or between two private parties. While some administrative law scholars claim that agency adjudication satisfies constitutional due process, others argue that certain adjudication procedures violate due process protections, such as the appearance of partiality in favor of agencies that results from the use of non-independent adjudicators.

Additional reading:



Trump executive order targets regulations waived during pandemic for potential permanent repeal

On May 19, President Trump issued an executive order directing federal agencies to remove regulatory barriers to economic activity as part of a coronavirus pandemic recovery effort.

The order specifically directs agency leaders to determine whether regulations modified or waived during the pandemic should be repealed permanently. It also encourages agencies to use emergency powers to support economic recovery and to find and remove additional regulatory hurdles to job creation. According to news reports, more than 600 regulations could be affected.

Russ Vought, Acting Director of the Office of Management and Budget, stated, “If a bureaucratic rule needs to be suspended during a time of crisis to help the American people, we should ask ourselves if it makes sense to keep at all.”

U.S. Senator Ted Cruz (R-Texas), who supports the order, tweeted that “every regulation that was waived during this crisis should remain waived.” Kent Lassman, president of the libertarian Competitive Enterprise Institute, approved of the order and said, “CEI has identified dozens of regulations that were never needed and now hinder response to, and recovery from, this pandemic. Widespread repeal is necessary and on the way.”

U.S. Representative Bonnie Watson Coleman (D-N.J.), who opposes the order, tweeted that in her view the order puts workers and the environment at risk: “Step one: Remove the Inspectors General who keep an eye on wrongdoing at our federal agencies. Step two: Tell the agencies that it’s open season on measures that keep workers, consumers, and the environment safe.”

An executive order is a formal command handed down from the president to federal agencies within the executive branch. While executive orders are legally binding, they are not laws; they are instructions on how the executive branch ought to enforce the law. These instructions must line up with existing U.S. laws and the U.S. Constitution.

Executive orders are a way that presidents exercise executive control of agencies—one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

Additional reading:

Text of the executive order:
https://www.whitehouse.gov/presidential-actions/executive-order-regulatory-relief-support-economic-recovery/

Link to CEI statement:
https://cei.org/content/new-executive-order-stimulate-recovery-deregulating-builds-ceis-neverneeded-campaign

Link to Public Citizen statement:
https://www.citizen.org/news/trumps-latest-deregulatory-order-is-more-corruption-distracts-from-fighting-the-pandemic/



Federal Register weekly update; 2020 page total passes 31,000 pages

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.

From May 18 to May 22, the Federal Register grew by 1,766 pages for a year-to-date total of 31,356 pages. Over the same period in 2019 and 2018, the Federal Register reached 24,362 pages and 24,396 pages, respectively. As of May 22, the 2020 total led the 2019 total by 6,994 pages and the 2018 total by 6,930 pages.

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

This week’s Federal Register featured the following 613 documents:
• 499 notices
• nine presidential documents
• 45 proposed rules
• 60 final rules
Two proposed rules concerning hazardous materials and debt collection and two final rules related to biofuels and remote sensing space systems were deemed significant under E.O. 12866—meaning that they 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 18 significant proposed rules and 28 significant final rules as of May 22.

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 2018 and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2018.



FEC regains quorum to enforce campaign finance laws

The Federal Election Commission’s (FEC) nearly nine-month period without a functioning quorum came to a close on Tuesday when the United States Senate voted 49-43 along party lines to confirm Republican attorney Trey Trainor as the commission’s newest member. Trainor’s confirmation created the quorum of members necessary for the FEC to oversee campaign finance disclosures, perform audits, and enforce fundraising violations.

The FEC had lacked a quorum since Republican Vice Chairman Matthew Petersen resigned on August 31, 2019. Trainor joins Republican Chairwoman Caroline Hunter, independent Vice Chairman Steven Walther, and Democratic member Ellen Weintraub on the six-member commission.

The Federal Election Campaign Act requires a vote of at least four of the FEC’s six members for the commission to undertake a number of key policy duties such as promulgating rules, issuing advisory opinions, and deciding enforcement actions. As a result, all of the commission’s four active members must reach a consensus in order to proceed with substantive actions.

Additional reading:



EPA proposal aims to increase public engagement with agency guidance documents

The U.S. Environmental Protection Agency (EPA) on May 19 announced a proposed rule that intends to facilitate public engagement in the development and review of the agency’s guidance documents.

The proposed rule aims to bring the agency in line with President Donald Trump’s (R) Executive Order 13891, which seeks to prohibit https://ballotpedia.org/Executive_agencyfederal administrative agencies> from issuing binding rules through https://ballotpedia.org/Guidanceguidance documents>. The rule endeavors to increase transparency in the agency’s guidance document processes by establishing an online portal for the public to access active guidance documents, creating procedures for individuals to request that the agency modify or rescind a guidance document, and establishing a public review and comment period for all proposed significant guidance documents, among other provisions. E.O. 13891 defined significant guidance documents as those that have large economic impacts or conflict with other policy priorities.

Republican members of the House Energy and Commerce Committee praised the proposed rule in a press release. “For far too long, EPA circumvented the rulemaking process through its use of guidance documents, which often led to significant burdens on American communities, businesses, and workers. … Today’s proposal creates more accountability and transparency in the guidance process.”

John Walke, a senior attorney with the Natural Resources Defense Council, criticized the proposed rule for what he perceived to be its potential to increase litigation. “While it could have benefits for the public seeking to withdraw harmful EPA guidance,” Walk told _The Hill_, “it’s far more likely to be used and abused by industry seeking to disrupt and worsen a regulatory system that has relied upon guidance for decades.”

Guidance documents advise interested parties about how agencies implement regulations. Unlike regulations promulgated through the rulemaking process, guidance documents are not legally binding. A 1992 report by the Administrative Conference of the United States, however, found that agency officials sometimes use guidance documents in ways that give those documents the same authority as legally binding rules. While some administrative law scholars claim that guidance documents provide clarity that benefits both agencies and regulated parties, others argue that agencies abuse guidance documents by using them to create legally binding rules outside of the rulemaking process.

Additional reading:



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