A federal judge from the United States District Court for the Eastern District of Tennessee on July 15, 2022, struck down a Department of Education order that aims to protect transgender students and workers from discrimination.
The Biden administration released the challenged guidance in response to recent legislation passed by states that aim to bar transgender students from participating on school sports teams and using bathrooms and locker rooms that align with their gender identity. The guidance states transgender students are protected under Title IX, which prohibits discrimination based on sex at federally funded schools. It also claims that transgender workers are protected under Title VII, which bars employers from discriminating based on race, color, religion, sex, and/or national origin. The department in June issued a proposed rule seeking to codify parts of the guidance.
Tennesse and 19 other Republican-led states brought a lawsuit against the federal government last August, asserting the Department of Education overreached its executive authority by issuing the order. The states claim in part that the department’s guidance infringes on state power in violation of the Tenth Amendment.
Judge Charles Atchley, a Trump appointee, ruled the department overreached its authority in order to penalize states for their recent legislation. In a preliminary injunction, Judge Atchley wrote, “[T]he harm alleged by plaintiff States is already occurring – their sovereign power to enforce their own legal code is hampered by the issuance of defendants’ guidance and they face substantial pressure to change their state laws as a result.”
In response to the ruling, Joni Madison, the Human Rights Campaign’s interim president, said, “Nothing in this decision can stop schools from treating students consistent with their gender identity. And nothing in this decision eliminates schools’ obligations under Title IX or students’ or parents’ abilities to bring lawsuits in federal court.”
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, accounting for both regulatory and deregulatory actions.
From July 25 through July 29, the Federal Register grew by 2,898 pages for a year-to-date total of 46,882 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 584 documents:
488 notices
Six presidential documents
48 proposed rules
42 final rules
Seven proposed rules, including regulations to establish minimum size requirements for train crews from the Federal Railroad Administration, and six final rules, including improvements to the Greenhouse Gas Emissions Model (GEM) for heavy-duty vehicles from the Environmental Protection Agency 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 126 significant proposed rules, 142 significant final rules, and one significant notice as of July 29.
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 2021, 2020, 2019, 2018, and 2017: Changes to the Federal Register
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, accounting for both regulatory and deregulatory actions.
From July 18 through July 22, the Federal Register grew by 1,352 pages for a year-to-date total of 43,984 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 535 documents:
445 notices
Five presidential documents
41 proposed rules
44 final rules
Seven proposed rules, including an amendment to the Federal Manufactured Home Construction and Safety Standards from the Housing and Urban Development Department, and five final rules, including amendments to regulations regarding the claims and appeals process for programs administered by the Veterans Health Administration from the Veterans Affairs Department 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 119 significant proposed rules, 136 significant final rules, and one significant notice as of July 22.
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.
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, accounting for both regulatory and deregulatory actions.
From July 11 through July 15, the Federal Register grew by 1,608 pages for a year-to-date total of 42,632 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 579 documents:
463 notices
Five presidential documents
39 proposed rules
72 final rules
Eight proposed rules, including an amendment to Title IX regulations to clarify the obligation of schools receiving federal financial assistance to provide education without discrimination on the basis of sex from the Education Department, and three final rules, including amendments to medical regulations for the Civilian Health and Medical Program from the Veterans Affairs Department 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 112 significant proposed rules, 131 significant final rules, and one significant notice as of July 15.
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.
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 new proposed climate disclosure requirements from the Securities and Exchange Commission; a decision from the Merit Systems Protection Board allowing civil service members to concurrently hold elected office; and new proposed packaging symbols from the Food and Drug Administration aiming to denote healthy foods.
At the state level, we take a look at an effort by an Oregon business coalition to block the state environmental agency’s new greenhouse gas emissions rules; the West Virginia governor’s veto of legislation that would have split the state’s health agency in two; and a proposal before a Rhode Island special commission that suggests stripping a state agency’s political appointees of their decision-making authority in favor of the agency’s career staff.
We also highlight recent scholarship from administrative law scholar Emily Bremer that examines the democratic—or undemocratic—roots of agency rulemaking. As always, we wrap up with our Regulatory Tally, which features information about the 208 proposed rules and 286 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
In Washington
SEC issues climate-related disclosures rule
What’s the story?
The Securities and Exchange Commission (SEC) on March 21, 2022, voted 3-1 to release its proposed plan requiring climate-related sustainability disclosures from publicly traded companies.
The 510-page proposal would require publicly traded companies “to report greenhouse-gas emissions from their own operations as well as from the energy they consume, and to obtain independent certification of their estimates. In some cases, firms also would be required to report greenhouse-gas output of both their supply chains and consumers, known as Scope 3 emissions,” according to TheWall Street Journal.
SEC Chairman Gary Gensler issued a statement arguing that the proposed rule “would provide investors with consistent, comparable, and decision-useful information for making their investment decisions and would provide consistent and clear reporting obligations for issuers.”
In a statement titled “We are not the Securities and Environment Commission—At Least Not Yet,” the SEC’s sole Republican commissioner, Hester Peirce, argued that the proposal “will undermine the existing regulatory framework that for many decades has undergirded consistent, comparable, and reliable company disclosures. We cannot make such fundamental changes to our disclosure regime without harming investors, the economy, and this agency.”
U.S. Senator Bill Hagerty (R-Tenn.) on March 22 sent a letter to Chairman Gensler stating that the Congressional Review Act requires the SEC to submit the rule to Congress for review. The proposed rule is open to public comment through May 20, 2022.
In a break from precedent, the Merit Systems Protection Board (MSPB) on March 29, 2022, found that civil service members can concurrently hold both elected public office and their civil service positions without violating the Hatch Act.
An MSPB administrative law judge had previously found that the board’s historical interpretation of the Hatch Act prohibited Rodney Cowan, an employee of the U.S. Postal Service (USPS), from also serving as an elected county commissioner in Tennessee. The board disagreed, arguing that changes to the Hatch Act in 2012 prohibited federal employees from running for partisan office but not from holding such office. The board, made up of Biden appointees Tristan Leavitt and Raymond Limon, found that a six-month suspension from USPS was adequate disciplinary action for running for office and that Cowan’s resignation from either position was not required.
“We find nothing in the statute that requires an employee to relinquish the elected position before the board may impose an authorized penalty less than removal,” wrote the board members in their decision.
The new precedent creates an environment where civil service members could intentionally choose to violate the Hatch Act and run for elected office “knowing they could keep both positions in exchange for a suspension,” according to Government Executive.
The Food and Drug Administration (FDA) on March 28, 2022, announced in the Federal Register that it is conducting research on packaging symbols aimed at denoting food and beverage items that the agency considers to be healthy.
The FDA “seeks to improve dietary patterns in the United States to help reduce the burden of diet-related chronic diseases and advance health equity,” according to the Federal Register. “To help advance these goals, we are exploring the development of a graphic symbol to help companies communicate and consumers identify packaged food products that meet FDA’s definition of ‘healthy.’”
Use of the symbols would be voluntary on behalf of food companies. The agency’s development of the symbols is independent of its ongoing work to update its 1994 definition of the term healthy.
Members of the public have until April 27 to submit public comment on the symbols, including the following examples:
Oregon businesses seek to block state agency’s greenhouse gas rules
What’s the story?
A coalition of Oregon businesses on March 18, 2022, filed suit in the Oregon Court of Appeals aiming to halt implementation of the state Department of Environmental Quality’s (DEQ) Climate Protection Program, arguing that the program exceeds the agency’s statutory authority.
Governor Kate Brown (D) last year directed DEQ to develop a plan to reduce greenhouse gas emissions in the state after lawmakers failed to pass legislation on the issue. DEQ’s resulting Climate Protection Program, which took effect on January 1, aims to achieve a 90 percent reduction in greenhouse gas emissions from fuel and natural gas by 2050.
The coalition, made up of farmers, ranchers, and fuel suppliers, among other business and industry groups, argues that existing Oregon law governing the regulation of greenhouse gasses (which calls for the state to reduce greenhouse gas emissions to 75 percent below 1990 levels by the year 2050) prohibits DEQ and other executive branch agencies from creating “any additional regulatory authority.”
“Oregon law is clear that DEQ does not have authority to implement the policies they implemented in December,” Angela Wilhelms, president of the trade group Oregon Business and Industry, told Willamette Week. “We felt it was important to challenge that action because of the dangerous precedent it sets. The Oregon Legislature has not given the DEQ authority to write rules in this space.”
The governor’s office had not responded to the lawsuit as of April 15.
W. Va. governor vetoes legislation aiming to split state health agency
What’s the story?
West Virginia Governor Jim Justice (R) on March 20, 2022, vetoed legislation that aimed to improve efficiency and accountability within the state Department of Health and Human Resources (DHHR) by dividing it into the Department of Health and the Department of Human Resources. Justice instead proposed that the agency work with an outside consultant to identify specific DHHR problems and propose solutions.
The West Virginia State Legislature in March passed a bill that would have divided DHHR into two separate agencies with co-equal cabinet secretaries in order to address what lawmakers considered to be persistent problems with the agency’s handling of a variety of issues related to health and social services. Lawmakers have attributed many of DHHR’s problems to its size, according to Metro News. DHHR manages more than $7 billion in state and federal funds and employs thousands of West Virginians.
Rhode Island commission considers removing political appointees’ decision-making authority
What’s the story?
A special commission of the Rhode Island House of Representatives is considering transferring authority from the political appointees of the Coastal Resources Management Council (CRMC), a state agency tasked with managing coastal development, to CRMC career staff. Members of the bipartisan commission, including lawmakers, town officials, and interested parties, have proposed changing the appointed council to an advisory body and shifting its final decision-making authority to CRMC staff.
CRMC is led by a 10-member council whose members are nominated by the governor and confirmed by the state Senate. The agency is staffed by a team of engineers, biologists, environmental scientists, and marine resources specialists. Lawmakers and members of the public have raised concerns about the level of expertise among the appointed council members compared to agency staff, frequent absences among council members, and delays associated with council member resignations and appointments, among other issues.
Several commission members in an April 5, 2022, meeting supported a proposal to change the appointed commission to an advisory board, according to The Providence Journal. Agency staff would assume the council’s final decision-making authority under the proposed plan. “Everyone applauds the staff and the executive director at CRMC,” said Kendra Beaver, a staff attorney with the environmental group Save The Bay. “They do a great job with limited resources and I think they’re fully equipped and capable and should be allowed to make final agency decisions.”
Former CRMC director Grover Fugate in a December 9, 2021, commission meeting referred to the suggestion that agency staff would improve CRMC’s final decision-making as loaded, adding that the current agency structure requires appointed council members to explain their decision-making process if it differs from staff recommendations.
New scholarship from Professor Emily Bremer of University of Notre Dame Law School argues that the common perception of the Administrative Procedure Act’s notice-and-comment rulemaking procedures as an effort to incorporate democratic principles into agency decision-making is incorrect. Bremer argues instead that the roots of notice-and-comment rulemaking were much less democratic:
“This Article is the first to examine the pre-APA administrative practices that inspired the APA’s informal rulemaking provisions and show that those practices were not about democratic accountability or legitimacy. Instead, they were concerned with the targeted solicitation of views from the representatives of organized interest groups to inform the agency’s expert judgment. Congress, however, built a more democratic framework atop the foundation established by these pre-APA administrative practices. Congress also expected that agencies and courts would each contribute, in their own way, to the future elaboration and evolution of the APA’s minimal procedural requirements. The analysis reveals that what modern administrative law identifies as pathologies in informal rulemaking are natural—perhaps even intended—consequences of the APA’s statutory design. It also offers a more nuanced account of the purposes of the APA’s notice-and-comment provisions and further legitimates both agency procedural discretion and judicial common law. The Article concludes that the vision of informal rulemaking that agencies and courts have constructed based on Section 553’s skeletal provisions vindicates Congress’s intentions and is preferable to a vision bound by rulemaking’s undemocratic roots.
Want to go deeper?
Click here to read “The Undemocratic Roots of Agency Rulemaking”
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 Supreme Court activity in challenges to agency power; the Biden administration’s efforts to delay and withdraw a Trump-era rule requiring retrospective regulatory review by the U.S. Department of Health and Human Services (HHS); a move by the U.S. Securities and Exchange Commission (SEC) to shorten public comment periods; and a lawsuit from the U.S. Deparment of Justice (DOJ) arguing federal supremacy over a Missouri gun law.
At the state level, we take a look at decisions by Massachusetts and other states to walk back the use of facial recognition technology; action by the Illinois General Assembly’s Joint Committee on Administrative Rules to block an emergency administrative rule on school mask mandates; and a proposed Kansas constitutional amendment that would give state lawmakers authority to rescind or suspend regulations.
We also highlight recent scholarship from administrative law scholar Andy Grewal highlighting what he considers to be the problems associated with phantom regulations. As always, we wrap up with our Regulatory Tally, which features information about the 179 proposed rules and 245 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
In Washington
SCOTUS takes up immigration policy challenge, hears argument in case concerning agency powers
What’s the story?
The United States Supreme Court in February granted certiorari in a case challenging the Biden administration’s attempts to reverse a Trump-era immigration policy. The court also heard oral argument in a case questioning the scope of agency rulemaking authority.
Biden v. Texas: The court on February 18, 2022, agreed to hear Biden v. Texas, a case in which states argue that the Biden administration violated federal immigration law and the Administrative Procedure Act (APA) when it decided to terminate the Trump administration’s Migrant Protection Protocols (MPP). A district court and the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the states, holding that federal immigration law requires the U.S. Department of Homeland Security (DHS) to return inadmissible noncitizens to Mexico when the agency lacks the resources to detain them. The court also held that DHS violated the APA by not adequately explaining its decision to end the MPP program.
The court agreed to fast-tracked the case so that it could be decided during the current term. Oral argument is scheduled for April 26, 2022.
West Virginia v. Environmental Protection Agency (EPA): The U.S. Supreme Court on February 28 heard oral argument in West Virginia v. EPA, a case that questions the scope of authority Congress can delegate to the EPA to regulate greenhouse gas emissions. In its forthcoming decision, the Supreme Court could invoke the major questions doctrine or the nondelegation doctrine to set limits on the rulemaking authority Congress can delegate to the EPA and other federal agencies.
“The justices seemed most interested in how to interpret the language of Section 111 of the Clean Air Act (42 U.S.C. Section 7411), which is the statutory source of authority to regulate greenhouse gas emissions from power plants,” observed administrative law scholar Jonathan Adler in an analysis for Reason. “The major questions doctrine was raised repeatedly throughout the argument, largely as an input to the statutory interpretation inquiry, rather than as a stalking horse for the nondelegation doctrine.”
The U.S. Department of Health and Human Services (HHS) on March 3, 2022, delayed the implementation of a Trump-era regulation requiring the agency to implement a retrospective review process for all agency rules. The delay, set to expire on September 22, 2022, continues a pause on the rule put in place last March by the Biden administration while a lawsuit seeking to overturn the regulation makes its way through the courts.
The HHS rule established a review process, sometimes referred to as a sunset review, that would have set a 10-year expiration date for each agency rule, with certain exceptions, unless the agency conducts a retrospective review to keep the rule in effect. The Trump administration argued that the review process would ensure that HHS regulations were up-to-date and effective.
In addition to delaying implementation of the rule, the Biden administration has also moved to rescind the rule. Officials have argued in part that the Trump administration issued the rule too quickly, claiming in the Federal Register that “given the lack of a public health or welfare reason to expedite the rulemaking and other procedural shortcomings, the department should now reconsider the commenters’ significant objections to the proposal.” HHS as of March 17 was reviewing public comments received on its proposed withdrawal of the rule.
The U.S. Securities and Exchange Commission (SEC) under the Biden administration has moved to reduce the amount of time the public has to comment on the agency’s proposed rules.
Comment periods allow members of the public the opportunity to submit written feedback on proposed agency rules. The SEC has generally provided a 60-day public comment period on its proposed rules, according to researchers at the Cato Institute. Though the Administrative Procedure Act (APA) requires a minimum 30-day comment period, President Bill Clinton’s Executive Order 12866, which continues to guide many regulatory review practices, recommends a 60-day comment period in most cases.
Under SEC Chairman Gensler, the agency’s comment periods have decreased from 60 days to as short as 30 days. U.S. Representative Patrick McHenry (R-N.C.) and U.S. Senator Pat Toomey (R-Pa.), ranking members in the congressional committees overseeing the SEC, sent a letter to Gensler asking him to consider extending the comment periods. Cato Institute researcher Will Yeatman argued that the APA not only sets a minimum floor of 30 days, but also requires that agency action be reasonable, which could call for longer comment periods in cases of complex or lengthy rules.
Gensler has defended the shorter comment periods, stating that the agency is working to move its agenda forward. “Congress weighed in on comment periods with the Administrative Procedure Act,” said Gensler at a January 19, 2022, meeting of the Exchequer Club of Washington D.C. “Congress is pretty straight forward; they said 30 days.”
U.S. Department of Justice sues Missouri over state gun law
What’s the story?
The U.S. Department of Justice (DOJ) on February 16 sued the state of Missouri in the United States District Court for the Western District of Missouri in an effort to overturn the state’s Second Amendment Preservation Act. The law, signed into law by Gov. Mike Parson (R), aims to mitigate perceived infringement on citizens’ Second Amendment rights by allowing police departments to refuse to provide information to federal authorities and to recuse themselves from federal violent crime task forces.
States can decline to assist the federal government in an investigation. The DOJ, however, asserts that the Second Amendment Preservation Act unlawfully authorizes Missouri to regulate federal authority “by purporting to nullify, interfere with, and discriminate against federal law”, according to Brian Boynton, U.S. deputy assistant attorney general. Boynton claims the law poses threats to public safety and violates the U.S. Constitution’s Supremacy Clause by nullifying key aspects of the Second Amendment, including firearm registration, tracking, and confiscation laws.
“The Biden Department of Justice has now filed yet another partisan lawsuit that seeks to attack Missourians’ Second Amendment rights,” Missouri Attorney General Eric Schmitt (R) responded in a statement. Schmitt claimed that the lawsuit served as a pretense to halt what he considers to be a successful joint crime-fighting collaboration between Missouri and federal law enforcement, known as the Safer Streets Initiative.
Massachusetts unemployment insurance program ends use of facial recognition technology
What’s the story?
The Massachusetts Department of Unemployment Assistance (DUA) on February 23, 2022, announced that it would suspend the use of facial recognition technology as a way for unemployment insurance claimants to verify their identities. The department cited decreased claim volumes as the basis for its decision.
The Massachusetts DUA joins other state and federal agencies in walking back the use of facial recognition technology to access government services. Unemployment insurance program officials in Oregon halted the use of facial recognition technology last fall due in part to accessibility concerns. California officials as of March 17 were reviewing privacy and transparency issues regarding the state’s use of facial recognition technology to confirm the identities of unemployment insurance claimants. The Internal Revenue Service (IRS) in January reversed its plan to require facial recognition technology for Americans to access their tax returns online after members of Congress raised bipartisan concerns about privacy rights, accuracy, and regulatory oversight of facial recognition technology.
The Illinois General Assembly’s Joint Committee on Administrative Rules (JCAR) on February 15, 2022, voted 9-0-2 to block an emergency rule issued by Governor J.B. Pritzker (D) aiming to enforce state mask, vaccine, and testing requirements in schools. Three of the JCAR’s six Democrats joined the six Republican members in support of the measure.
Sangamon County Circuit Court Judge Raylene Grischow on February 4, 2022, issued anorder nullifying emergency rules from the state’s Department of Education and Department of Public Health requiring masks in schools, among other education-related requirements in response to the coronavirus (COVID-19) pandemic. Grischow ruled in part, “The ISBE’s emergency administrative rules mandating issues of masking, vaccinations, testing and quarantine are outside the scope of any authority granted them by the Legislature.” Despite the order—later upheld by the Illinois Fourth District Appellate Court on February 17—the Illinois Department of Public Health attempted to issue an emergency rule to reinstate the requirements, prompting the JCAR to vote on the action.
“Today, the Joint Committee of Administrative Rules made it clear that we would not accept the governor’s attempts to go above a court ruling made by a co-equal branch of government,” said state Senator Sue Rezin (R). State Senator Bill Cunningham (D) agreed, stating, “I think it fair to say the committee was uncomfortable with extending an emergency rule that has been invalidated by a court.”
The Illinois Supreme Court on February 26, 2022 denied Pritzkers request for an appeal, vacated Judge Grischow’s order, and remanded the case to the Sangamon County Circuit Court. Pritzker, who lifted the statewide school mask mandate on February 28, stated in response to the ruling that the court’s decision to vacate the lower court order allows him to issue new mandates in the future if needed.
Proposed Kansas constitutional amendment would allow lawmakers to rescind agency rules
What’s the story?
The Judiciary Committee of the Kansas State Senate on March 8, 2022, issued a favorable recommendation to the full chamber on a proposed amendment to the Kansas Constitution that would allow lawmakers to revoke or suspend agency rules. The measure passed the Kansas House on February 18, 2022, by an 85-39 vote.
House Concurrent Resolution 5014 would replace the current system in Kansas, under which a joint legislative committee can review proposed regulations and provide feedback. The proposed framework would create a new Section 1 of the state constitution granting the Legislature “oversight of state executive branch agencies and officials by providing the Legislature authority to establish procedures to revoke or suspend rules and regulations.”
Attorney General Derek Schmitt (R) has stated that the proposal would strengthen legislative oversight of administrative agency rules. State Representative Dennis “Boog” Highberger (D), an opponent of the proposal, referred to the amendment as “election-year grandstanding,” according to the Kansas Reflector.
If approved by the legislature, Kansas voters will decide on the amendment in the 2022 election.
In a recent post for the Yale Journal on Regulation’s Notice & Comment blog, administrative law scholar Andy Grewal discussed the concept of phantom regulations in a case before the United States Court of Appeals for the Sixth Circuit. Phantom regulations, according to Grewal, have come to light in tax cases where a challenged statute has called for U.S. Department of the Treasury regulations that the department never issued. Courts, in these instances, have opted to apply the statutes without regulations—thus giving rise to phantom regulations.
Grewal discussed what he considered to be problems associated with phantom regulations in the context of the recent case Whirlpool v. Commissioner:
“Whirlpool shows how phantom regulations can thwart the congressional intent reflected in statutory language. The Sixth Circuit said that it applied the text adopted by Congress. But its nominally textual approach applies some statutory words and ignores others (‘under regulations’). The Sixth Circuit should have given effect to all words found in Section 954(d)(2), like the Tax Court did below.
“The Sixth Circuit’s approach might earn some sympathy. The court plainly wanted to resolve the case without wading into the highly complicated Section 954(d)(2) regulations. Ignoring the statute’s reference to regulations provided a convenient way to do so.
“But Congress acts deliberately when it decides that a statutory rule will apply ‘under regulations.’ Through that language, Congress decides that agencies, as experts, should examine tradeoffs and determine whether and how a potential rule should apply. Section 954(d)(2) itself addresses highly complicated matters. Thus, it’s easy to see why, as Judge Nalbandian’s dissent observed, Congress would want expanded immediate taxation to arise only after the Treasury followed the notice-and-comment-process.”
Want to go deeper?
Click here to read “The Sixth Circuit Conjures Phantom Regulations”
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 legal challenges to the Biden administration’s vaccine mandates; an overview of new regulatory costs and paperwork requirements issued during President Joe Biden’s (D) first year in office; new U.S. Supreme Court cases challenging agency power and structure; and an about-face from the Internal Revenue Service (IRS) on its plan to use facial recognition technology.
At the state level, we take a look at changing approaches to statewide school mask requirements.
We also highlight recent scholarship from Columbia University law professor Philip Hamburger that examines the nondelegation doctrine through a new lens of different constitutional principles. As always, we wrap up with our Regulatory Tally, which features information about the 163 proposed rules and 251 final rules added to the Federal Register in January and OIRA’s regulatory review activity.
In Washington
Legal challenges to vaccine mandates continue
What’s the story?
Federal coronavirus (COVID-19) vaccine requirements have been at the center of judicial activity since the start of the new year. Though the U.S. Supreme Court on January 13 blocked enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees (arguing 6-3 that the rule exceeded OSHA’s authority), other federal vaccine mandates remained in place as of February 19, 2022.
The following list features updates on the Biden administration’s vaccine requirements for healthcare workers, federal contractors, federal employees, and Head Start employees:
Healthcare workers: The U.S. Supreme Court on January 13 upheld the Centers for Medicare and Medicaid Services’ (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds, ruling 5-4 that the mandate fell within the Secretary of Health and Human Services’ statutory authority.
Tennessee Governor Bill Lee (R) on February 4 announced that Tennessee and a coalition of 15 other states had filed a renewed legal challenge to the healthcare worker vaccine mandate in the United States District Court for the Western District of Louisiana. The plaintiff states claim in part that the mandate is arbitrary and capricious in light of the developing science around COVID-19.
Federal contractors: The United States Court of Appeals for the Eleventh Circuit on December 17, 2021, declined expedited review of a lower court’s nationwide injunction that blocked enforcement of the Biden administration’s vaccine requirement for federal contractors. Other court rulings have blocked the mandate in specific states. Oral argument of the case before the Eleventh Circuit is tentatively scheduled for April 2022.
Federal employees: A three-judge panel of the United States Court of Appeals for the Fifth Circuit voted 2-1 on February 9 to deny the Biden administration’s request to lift a nationwide injunction blocking its vaccine requirement for federal employees. Judge Jeffrey Brown of the U.S. District Court for the Southern District of Texas had issued the injunction on January 21, arguing that the administration had overstepped its authority.
Head Start employees: The U.S. Department of Health and Human Services (HHS) on November 30, 2021, issued an interim final rule mandating vaccination for employees and contractors of federal Head Start programs. District court judges had blocked the mandate in 24 states and four Michigan school districts as of February 19.
Biden administration regulatory costs, paperwork requirements exceed first-year totals of Obama and Trump administrations
What’s the story?
President Joe Biden’s (D) administration added $201 billion in new regulatory costs and roughly 131 million hours in new annual paperwork requirements during Biden’s first year in office, according to new research from the American Action Forum. The new regulatory costs and paperwork requirements exceeded the first-year totals added by both the Obama and Trump administrations.
The Biden administration’s new regulatory costs amounted to three times those added during the Obama administration’s inaugural year and almost 40 times those added during the Trump administration’s first year. The new paperwork requirements exceeded the Obama and Trump administrations’ first-year totals by 123 million hours and 105 million hours, respectively.
A new vehicle emissions rule issued by the Environmental Protection Agency (EPA) instituted $180 billion in new regulatory costs—the bulk of the Biden administration’s first-year total. The majority of the administration’s new paperwork requirements stemmed from actions related to the coronavirus (COVID-19) pandemic response.
SCOTUS to hear new cases challenging agency power, structure
What’s the story?
The U.S. Supreme Court on January 24 agreed to hear two new cases during its October term 2022-2023 that challenge the authority and structure of federal agencies.
The first case, Sackett v. Environmental Protection Agency (EPA), concerns the scope of the EPA’s authority to determine what wetlands are considered to be “Waters of the United States” under the Clean Water Act (CWA). Idaho residents Chantell and Michael Sackett in 2008 challenged an EPA order to remove sand and gravel fill on their property. The agency claimed that the Sacketts’ property contained wetlands subject to regulation under the CWA. The Sacketts disagreed, arguing that the EPA lacked jurisdiction to issue the order. The United States Court of Appeals for the Ninth Circuit ruled in favor of the EPA in 2021, holding that the CWA covers the Sacketts’ property. The Sacketts appealed to the U.S. Supreme Court for clarification about which wetlands are covered by the CWA.
The second case, Axon Enterprise Inc. v. Federal Trade Commission, questions whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission (FTC) if plaintiffs have not first raised such challenges during agency adjudication proceedings. Axon Enterprise Inc., a police body camera company subject to antitrust proceedings before the FTC, has argued in part that the double for-cause removal protections afforded to the FTC’s administrative law judges unconstitutionally insulate them from presidential control. The United States Court of Appeals for the Ninth Circuit upheld the lower court’s ruling that district courts do not have authority to review constitutional challenges to the agency’s structure before the agency considers those challenges through adjudication.
The Supreme Court’s October term 2022-2023 begins on October 3, 2022.
IRS abandons plan to use facial recognition technology
What’s the story?
The Internal Revenue Service (IRS) this month walked back its plan to require facial recognition technology for Americans to access their tax returns online after objections from members of Congress.
The IRS entered into a partnership last year with the private contractor ID.me to require verification through facial recognition technology in order for Americans to digitally access their tax returns. The agency changed course on February 7, however, after members of Congress raised bipartisan concerns about privacy rights, accuracy, and regulatory oversight of facial recognition technology.
The initial support for facial recognition technology by the IRS highlights the disparate approaches to its use by federal agencies. Unlike the IRS, the Government Services Administration (GSA) has declined to require the use of facial recognition technology to access Login.gov—a portal allowing public access to services provided by participating federal agencies. A GSA representative told The Washington Post that GSA “is committed to not deploying facial recognition … or any other emerging technology for use with government benefits and services until rigorous review has given us confidence that we can do so equitably and without causing harm to vulnerable populations.”
An August 2021 survey of 24 federal agencies by the Government Accountability Office (GAO) found that 18 of the agencies surveyed used facial recognition technology in some capacity.
State policies on school mask mandates are in a state of flux in light of court rulings and changing approaches to address the coronavirus (COVID-19) pandemic. As of February 19, 12 states require masks in schools, 31 states leave school mask requirements up to local authorities, and five states prohibit school mask requirements. The following list provides an overview of recent changes to school mask mandates in selected states:
New York: New York Governor Kathy Hochul (D) allowed the statewide mask mandate to expire on February 10, but kept the school mask mandate in place. Hochul stated that she would reassess the school mask requirements in the first week of March.
Virginia: Virginia Governor Glenn Youngkin (R) on February 16 signed a new state law allowing parents to decide whether or not their children wear masks in schools. The law requires schools to end their mask mandates by March 1. Youngkin’s Executive Order Two had attempted the same outcome but faced legal challenges arguing that it violated a state law requiring schools to follow masking guidance from the U.S. Centers for Disease Control and Prevention (CDC).
Illinois: The Illinois Fourth District Appellate Court on February 17 upheld a lower court order that nullified emergency rules from the state’s Department of Education and Department of Public Health requiring masks in schools, among other school requirements in response to the coronavirus (COVID-19) pandemic. Governor J.B. Pritzker (D) stated that he would seek an expedited review of the decision by the Illinois Supreme Court.
New Jersey: New Jersey Governor Phil Murphy (D) on February 7 announced that masks will no longer be required for students, staff, or visitors in schools and childcare facilities effective March 7, citing the decline in statewide COVID-19 cases.
Recent scholarship from Columbia University law professor Philip Hamburger puts forth a new approach to understanding the nondelegation doctrine. Hamburger examines the interactions between the nondelegation doctrine and related concepts—including principles of consent, different powers, separation, and exclusivity—to support his constitutional vision barring the transfer of powers between branches of government:
From the abstract:
“The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.
“This Article examines the Constitution’s treatment of the problem. Whereas other scholarship tends to focus narrowly on a single concept, whether delegation or vesting, this piece takes a more ecumenical approach. It uncovers layers of relevant concepts, showing how each contributes to the Constitution’s vision. …
“The Article thereby goes far beyond existing scholarship in showing how fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination of underlying principles, framing assumptions, and text.”
Want to go deeper?
Click here to read “Nondelegation Blues” by Philip Hamburger
The Federal Register in January reached 5,388 pages.
The January Federal Register included 163 proposed rules and 251 final rules. These included new vision standards for commercial vehicle drivers and windshield regulations for certain airplanes, among other regulations.
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, accounting for both regulatory and deregulatory actions.
From Jan. 17 through Jan. 21, the Federal Register grew by 898 pages for a year-to-date total of 3,420 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 443 documents:
354 notices
Two presidential documents
29 proposed rules
58 final rules
Two proposed rules, including rescheduling a virtual public hearing on proposed particulate matter emission standards for certain aircraft engines from the Environmental Protection Agency, and four final rules, including procedures for earning time credits as authorized by the First Step Act of 2018 (FSA) from the Prisons Bureau 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, 17 significant final rules, and zero significant notices as of Jan. 21.
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.
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 judicial actions on the Biden administration’s vaccine mandates; a circuit split on the constitutionality of removal protections for certain administrative law judges that could prompt the U.S. Supreme Court (SCOTUS) to weigh in; new federal legislation seeking to codify Chevron deference; and the Office of Personnel Management’s (OPM) proposed rescission of Trump-era policies regarding poor-performing federal employees.
At the state level, we take a look at opposition from state attorneys general to the Biden administration’s vaccine and mask requirements for federal Head Start programs.
We also highlight the release of the Biden administration’s Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions. As always, we wrap up with our Regulatory Tally, which features information about the 2,094 proposed rules and 3,257 final rules added to the Federal Register in 2021 and OIRA’s regulatory review activity.
In Washington
SCOTUS, courts of appeal issue rulings on vaccine mandates
What’s the story?
The U.S. Supreme Court on January 13, 2022, blocked the Biden administration’s coronavirus (COVID-19) vaccination requirements for certain private businesses while upholding the vaccine mandate for healthcare workers. The vaccine requirements for federal contractors remained blocked nationwide as of January 14, 2022.
Private businesses: The U.S. Supreme Court ruled 6-3 to block enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees. In the per curiam opinion, the majority justices argued that the OSHA secretary lacked the authority to issue the requirement, describing the rule as “a significant encroachment into the lives—and health—of a vast number of employees.”
In his concurrence, Justice Gorsuch argued in part that the rule failed the test of the major questions doctrine, which requires Congress to speak clearly when it grants an agency authority to regulate on economic or politically significant matters. “The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing,” wrote Gorsuch. “By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”
Healthcare workers: The U.S. Supreme Court ruled 5-4 to uphold the Centers for Medicare and Medicaid’s (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds. In the per curiam opinion, the majority justices argued that “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’”
Federal contractors: The United States Court of Appeals for the Eleventh Circuit on December 17, 2021, upheld a nationwide injunction blocking enforcement of the Biden administration’s vaccine requirement for federal contractors. A three-judge panel of the United States Court of Appeals for the Sixth Circuit on January 7, 2022, ruled 2-1 to uphold a similar injunction blocking the requirement for federal contractors in Kentucky, Ohio, and Tennessee. “If the president can order medical interventions in the name of reducing absenteeism,” questioned the majority, “what is the logical stopping point of that power?”
Circuit split could prompt SCOTUS to hear challenge to ALJ removal protections
What’s the story?
The United States Court of Appeals for the Fifth Circuit on December 13, 2021, issued an en banc opinion in Cochran v. U.S. Securities & Exchange Commission (SEC) et al., holding 9-7 that federal law does not prohibit federal district courts from concurrently hearing constitutional challenges to the SEC’s administrative law judges (ALJs) in cases where the agency has yet to issue a final adjudicative order. The court’s decision creates a circuit split with six other courts of appeal that have already considered such challenges, which could prompt the U.S. Supreme Court to take up the case.
Cochran has argued that the removal protections of the SEC ALJ assigned to her case unconstitutionally insulate the ALJ from removal by the president. The district court ruled that, according to the Securities Exchange Act of 1934, Cochran must first raise her constitutional challenge during agency proceedings before appealing the final agency order to the federal courts. A panel of the Fifth Circuit agreed with the district court. The full Fifth Circuit heard the case and disagreed, finding in part that Cochran’s constitutional concern “has absolutely nothing whatsoever to do with a final order, and therefore her claim falls outside of” the statutory limit on the district court’s subject matter jurisdiction.
“In Free Enterprise Fund, the Supreme Court rejected the precise argument the SEC makes here—that the Exchange Act divests district courts of jurisdiction over removal power challenges,” wrote Judge Catharina Haynes in the opinion.
Judge Gregg Costa argued in the dissent, “Before today, every court of appeals to consider the question has answered that a person facing an SEC enforcement action may not mount a collateral attack against the agency proceeding in federal district court.” The majority, he further argued, “turns constitutional avoidance on its head by making separation-of-powers claims a first rather than last resort in resolving cases.”
The U.S. Supreme Court in 2018 ruled in a constitutional challenge to the appointment of the SEC’s ALJs. The court found in Lucia v. SEC that the SEC’s ALJs are Officers of the United States subject to the Appointments Clause.
U.S. Representative Pramila Jayapal (D-Wash.) on December 1, 2021, introduced the Stop Corporate Capture Act, which aims to enact broad changes to the regulatory process, including codification of the Chevron deference doctrine.
Chevron deference compels judges to defer to reasonable agency interpretations of statutes they are tasked with administering. The proposed legislation would codify Chevron deference, despite continued uncertainty among U.S. Supreme Court justices regarding the doctrine’s scope. “[A]ll nine justices have at least once signed an opinion explicitly holding that Chevron should not apply in a situation where the administrative law textbooks would previously have said that it must apply,” concluded administrative law scholar Michael Kagan in 2017.
In addition to codifying Chevron deference into law, the Stop Corporate Capture Act proposes instituting new requirements for material submitted during public comment periods, including new disclosure standards for scientific studies and new penalties for corporations found to have submitted “materially false, fictitious, or fraudulent” information. The legislation would also require agencies to prioritize regulations that offer the most benefits to the public, regardless of costs, and would allow agencies to reinstate rules repealed under the Congressional Review Act, among other provisions.
OPM moves to rescind Trump-era policy on poor-performing federal employees
What’s the story?
The Office of Personnel Management (OPM) on January 4, 2022, issued a proposed rule aimed at rescinding regulations issued under the Trump administration regarding poor-performing federal employees.
OPM issued the rules in November 2020 pursuant to President Donald Trump’s (R) Executive Order 13839, which aimed to streamline the discipline and dismissal processes for poor-performing federal employees. The regulations directed agency approaches to employee probationary and improvement periods, barred agencies from entering into settlement agreements with employees, and shortened the time frame for employees to respond to allegations of misconduct or poor performance.
President Joe Biden (D) on January 22, 2021, issued Executive Order 14003, rescinding E.O. 13839 and directing OPM to repeal the Trump-era regulations. In its proposed rule to implement Biden’s directive, OPM argued that the rules “removed previous flexibilities enjoyed by agencies in how to address performance issues with their employees.” The proposed rule is open for public comment through February 3, 2022.
States challenge coronavirus (COVID-19) requirements for federal Head Start programs
What’s the story?
Attorneys general in Florida, Texas, and Louisiana have opposed the Biden administration’s coronavirus (COVID-19)-related requirements for federal Head Start programs. The Department of Health and Human Services (HHS) on November 30, 2021, issued an interim final rule mandating vaccination for employees and contractors of federal Head Start programs and requiring masks for students ages two and older.
Texas Attorney General Ken Paxton and Lubbock Independent School District on December 10, 2021, filed a preliminary injunction to block enforcement of the rule. Louisiana Attorney General Jeff Landry followed suit on Dec. 21, filing a lawsuit arguing in part that the Head Start requirements exceed the authority of the executive branch. Attorneys general from 23 other states joined Landry’s lawsuit.
Judge James Wesley Hendrix of the United States District Court for the Northern District of Texas on December 31, 2021, blocked enforcement of the rule in Texas, arguing in part that Congress did not delegate authority to HHS to issue vaccine or mask requirements for Head Start programs. The next day, Judge Terry Doughty of the United States District Court for the Western District of Louisiana blocked enforcement of the rule in Louisiana and 23 other states.
“This Court has no hesitation in finding that the Head Start Mandate is a decision of vast economic significance and that Congress has not clearly spoken to give Agency Defendants the authority to impose it,” wrote Doughty in the order.
Biden administration releases Fall 2021 Unified Agenda
The Biden administration in December released the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions—a semiannual publication of recently completed, ongoing, and anticipated federal regulations. The Unified Agenda combines regulatory agendas and other required reports and information from approximately 60 departments, agencies, and commissions of the federal government.
“The regulatory plans and agendas submitted by agencies and included here offer blueprints for how the Administration plans to continue delivering on the President’s agenda as we build back better,” stated the Office of Information and Regulatory Affairs in the document’s introduction. “We are proud to shine a light on the regulatory agenda as a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.”
The Fall 2021 Unified Agenda identifies 68 federal agencies tasked with 3,777 rules in the active, just-completed, and long-term stages, according to an analysis in Forbes.
The Federal Register in 2021 reached 74,532 pages.
The 2021 Federal Register included 2,094 proposed rules and 3,257 final rules.
The 2021 Federal Register ranks as the second-lowest final rule count since the 1970s. The lowest final rule count since the 1970s was 2,964 final rules issued in 2019.
A total of 309 significant documents were added to the Federal Register in 2021, including 129 proposed rules, 176 final rules, and four notices. In comparison, the Trump administration added 109 significant documents in 2020 and 121 significant documents in 2019.
OIRA’s 2021 regulatory review activity included the following actions:
Review of 502 significant regulatory actions.
Twenty-five rules approved without changes; recommended changes to 383 proposed rules; 90 rules withdrawn from the review process; four rules subject to a statutory or judicial deadline.
As of January 3, 2022, OIRA’s website listed 72 regulatory actions under review.
The Iowa Department of Workforce Development issued a rule on January 10, 2022, that doubled the number of work search activities claimants have to conduct weekly from two to four. Work search activity refers to the requirement that an individual engages in documented efforts to search for work while receiving benefits through unemployment insurance. The rule also reduced the number of qualifying work search activities from 27 to a narrower list of 12.
Unemployment insurance claimants have to respond to calls they receive from state career councilors and may have to meet with a counselor weekly to remain eligible for unemployment insurance benefits. Not all workers will have to meet with a career councilor under the policy, but all claimants have to respond if they are contacted.
Unemployment insurance is a joint federal and state program that provides temporary monetary benefits to eligible laid-off workers who are actively seeking new employment. Qualifying individuals receive unemployment compensation as a percentage of their lost wages in the form of weekly cash benefits while they search for new employment.
The federal government oversees the general administration of state unemployment insurance programs. The states control the specific features of their unemployment insurance programs, such as eligibility requirements and length of benefits.
