Tagadministrative state

Ballotpedia study finds that 36 state APAs limit ex parte communications between hearing officers and the parties involved in agency adjudication

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) revealed that 36 state APAs limit ex parte communications between hearing officers and the parties involved in adjudication, as of October 2020. No state constitutions restrict contact between agency hearing officials and parties in a case.

Ex parte communications are any form of contact between a party to an adjudication and the official conducting the hearing without the knowledge or consent of the other party to the case. Adjudication proceedings are agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute and, in some cases, may set agency policy.

Understanding adjudication procedures provides insight into due process procedural rights of citizens at the state level, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about Ballotpedia’s survey related to procedural rights, see here: 
Procedural rights: State that limit ex part communications between hearing officers and the parties involved in adjudication

Want to go further? Learn more about the five pillars of the administrative state here:
Administrative state

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Checks and Balances: October 2020

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 an order from the Federal Communications Commission that moves the agency away from formal adjudication procedures; proposed rulemaking to reclassify administrative law judges in the excepted service; and new agency guidance aimed at implementing fairness principles in adjudication.

At the state level, we examine the nondelegation doctrine’s role in a Michigan case challenging coronavirus-related emergency orders; a challenge to administrative due process protections in Arizona; and a Colorado case concerning deference to state agency disciplinary procedures.

We also highlight a new book about the administrative state and new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining state-level sunset provisions for administrative rules. As always, we wrap up with our Regulatory Tally, which features information about the 178 proposed rules and 279 final rules added to the Federal Register in September and OIRA’s regulatory review activity.


In Washington

New FCC order further narrows adherence to formal adjudication

  • What’s the story? The Federal Communications Commission (FCC) on September 14 released a Report and Order allowing the agency’s adjudicators to conduct more hearings through written testimony rather than in-person, trial-type procedures.
  • Although the Communications Act of 1934 does not require the FCC to hold on-the-record hearings or follow formal adjudication procedures, the agency has historically modeled its hearings on the Administrative Procedure Act’s (APA) formal adjudication procedures, which require trial-type hearings presided over by an administrative law judge (ALJ).
  • The FCC’s order shifts the agency’s default approach to hearings from formal, trial-type processes to informal procedures that rely on written testimony. In order to determine whether written testimony satisfies procedural due process requirements in a particular case, the presiding officer must apply the three-part test from the U.S. Supreme Court decision in Mathews v. Eldridge, which evaluates the fairness and reliability of existing procedures in addition to the added value of further procedural safeguards.
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OIRA directs agencies to implement fairness principles in adjudication

  • What’s the story? The Office of Information and Regulatory Affairs (OIRA) on August 31 issued guidance for federal agencies to implement Section 6 of President Trump’s Executive Order 13924, which calls for agencies to consider a list of fairness principles in agency adjudication proceedings and revise their procedures as appropriate.
  • The memo puts forth best practices for agencies to consider incorporating in order to address the following fairness principles in adjudication:

“a) Administrative enforcement should be prompt and fair.

(b) Administrative adjudicators should be independent of enforcement staff.

(c) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.

(d) All rules of evidence and procedure should be public, clear, and effective.

(e) Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.

(f) Administrative enforcement should be free of improper Government coercion.

(g) Administrative enforcement should be free of improper Government coercion.

(h) Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.

(i) Administrative enforcement should be free of unfair surprise.

(j) Agencies must be accountable for their administrative enforcement decisions.”

Office of Personnel Management proposes to reclassify ALJs within civil service

  • What’s the story? The Office of Personnel Management (OPM) on September 21 issued a proposed rule that would reclassify administrative law judges (ALJ) within the federal civil service. The proposed rule aims to implement President Donald Trump’s (R) Executive Order 13843 of July 2018, which moved ALJs from the competitive service to the excepted service.
  • Prior to E.O. 13843, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.
  • President Trump issued E.O. 13843 in response to the United States Supreme Court’s June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order.
  • Opponents of Trump’s executive order argue that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards. Proponents argue that the order strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria.
  • The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline. The proposed rule is open to public comments through November 20, 2020.
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In the states

Nondelegation doctrine resurfaces in challenge to Michigan coronavirus orders

  • What’s the story?: The Michigan Supreme Court on October 2 revived the nondelegation doctrine in an opinion holding in part that Michigan’s Emergency Powers of the Governor Act (EPGA) violates the nondelegation doctrine by unconstitutionally delegating legislative power to the executive branch.
  • Governor Gretchen Whitmer (D) claimed that the declared states of emergency and disaster in response to the coronavirus pandemic authorized her to issue executive orders instituting coronavirus-related restrictions. Whitmer stated that the EPGA and the Emergency Management Act (EMA) allowed her to extend those emergency declarations without the state legislature’s approval.
  • Medical groups challenged an order, since rescinded, that placed restrictions on nonessential medical and dental procedures.
  • The district court asked the Michigan Supreme Court to consider in part whether the EPGA or the EMA violated the state constitution.
  • The majority held that the EMPGA violated the nondelegation doctrine because it delegated lawmaking authority to the executive branch. Justice Stephen Markman wrote in the majority opinion, “[T]he EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government— including its plenary police powers—and to allow the exercise of such powers indefinitely.”
  • Justices McCormick, Bernstein, and Cavanagh, and Bernstein disagreed with the majority’s holding. The justices claimed that the United States Supreme Court and the Michigan Supreme Court have historically applied the nondelegation doctrine via a “standards” test (i.e. intelligible principle test) that only strikes down delegations of authority without guiding standards for agency discretion. The delegations of authority under the EPGA, the justices argued, contained sufficient guiding standards for the agency.
  • Justice Viviano agreed with the majority’s holding and suggested that the court in future cases adopt the nondelegation doctrine approach put forth by U.S. Supreme Court Justice Gorsuch in Gundy v. United States, which focuses on whether Congress delegated lawmaking power to the executive rather than whether Congress provided a guiding standard.
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Administrative due process deficits challenged in Arizona

  • What’s the story? Maricopa County Superior Court Judge Douglas Gerlach on September 9 upheld a decision by then-Arizona Department of Child Safety (DCS) Director Gregory McKay in a case challenging the constitutionality of the procedural due process protections available to individuals during the agency’s adjudication of child abuse allegations.
  • McKay placed Phillip B. (the only name provided) on the child abuse registry despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law permits the DCS director to substitute his own judgment for that of the ALJ.
  • Phillip B. challenged the low standard of proof (probable cause) in the agency’s review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. The DCS director, according to the challenge, is not an impartial adjudicator because he exercises both investigatory and adjudicatory functions.
  • Gerlach declined to rule on the constitutional challenges raised by Phillip B. for factual reasons. He wrote in part that the bias challenge “flies in the face of well-settled law that ‘the combining of investigatory and adjudicatory functions [in a single agency] does not violate due process’ unless actual bias is shown.”
  • Phillip B. plans to appeal the decision.
  • “The court decided not to review the myriad due-process and separation-of-powers problems for factual reasons,” said attorney Aid Dynar of the New Civil Liberties Alliance in a statement. “At the same time, the court decided not to take a look at the facts to avoid the serious legal problems with Arizona’s administrative law. The court’s double-dodge offers an enticing recipe for appeal, and that is precisely what we plan to do.”
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Colorado Supreme Court to consider deference to agency disciplinary decisions

  • What’s the story? The Colorado Supreme Court is set to evaluate disciplinary procedures for the state’s 30,000 civil service members in a case concerning the firing and reinstatement of a state employee.
  • The Colorado Department of Corrections (DOC) argues that the State Personnel Board overstepped its authority when it reinstated a DOC employee who had been fired for drug use. DOC attorneys claim that the board is required to defer to state agency disciplinary decisions and can only reverse a firing under a specific set of circumstances that favor the agency.
  • “The decision… concentrates power over 30,000 state classified employees with the board. It has far-reaching consequences for state agencies’ ability to run their organizations that the legislature never intended, and injects unnecessary uncertainty into decisions made by appointing authorities following their policies,” wrote DOC attorneys in a court brief.
  • Attorneys for the State Personnel Board disagree, arguing that no deference to state agencies is required and that the board must independently review the facts of a case when reviewing an employee’s appeal.
  • Denise DeForest, a former Colorado administrative law judge, told The Denver Post that the independence of State Personnel Board decisions operate as a check on agency power in the state. “You can’t be a watchdog if nobody will file an appeal because an appeal is just a rubber stamp,” said DeForest.
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New book: Law & Leviathan: Redeeming the Administrative State, by Cass Sunstein and Adrian Vermeule

Administrative law scholars Adrian Vermeule and Cass Sunstein released a new book, Law & Leviathan: Redeeming the Administrative State, that aims to defend the moral foundation of the administrative state. Drawing from the moral legal principles put forth by philosopher Lon Fuller, Vermeule and Sunstein argue that agency procedures that seek to enhance accountability and transparency in rulemaking and adjudication bolster the morality of the rule of law. The principles of law’s morality, according to the authors, can help settle conflicts in administrative law and support its just application.

In a piece for The New York Times, the authors provide snapshots of law’s morality as applied by the courts:

“In our view, courts should be taking the morality of law quite seriously. Fortunately, they often do. Indeed, many of the principles of legal morality that Professor Fuller listed have been invoked by the Roberts court in a number of domains.

“The Roberts court has emphasized, for example, that agencies must follow their own rules, reducing the risk that they will make decisions on a case-by-case basis. It has also repeatedly emphasized the importance of “reliance interests,” which arise whenever people act in ways that depend on existing rules, and thus the court has worked to combat unduly rapid changes in the law. A recent example is the court’s decision on the “Deferred Action for Childhood Arrivals program, or DACA, which required the Department of Homeland Security to do more to consider the reliance interests of program participants. Right or wrong, the decision was animated by an account of law’s morality.

“Law’s morality also animated some lower court decisions that invalidated Obama administration initiatives. One example is the decision that issued an injunction against the Obama administration’s initial adoption of the DACA program and the related Deferred Action for Parents of Americans program, on the ground, among others, that the administration had attempted to disguise a substantive change in the law as a mere exercise of enforcement discretion. The court claimed, in effect, that there was a mismatch between rules as announced and rules as administered.”


Ballotpedia study shows that 11 states have sunset provisions for administrative rules

A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that 11 state constitutions or APAs contain sunset provisions for administrative rules, as of September 2020.

  • 11 states have APAs with sunset provisions for administrative rules.
  • 2 states have APAs with conditional sunset provisions for administrative rules that only kick in in certain circumstances.
    • In Arizona, the Governor’s Regulatory Review Council may choose to impose sunsets on rules during regular review periods.
    • In Vermont, the Legislative Committee on Administrative Rules may impose sunsets for rules that have not been readopted or amended in the preceding six years.
  • 37 states do not have APAs or constitutions with sunset provisions for administrative rules.

Ballotpedia also examined state APAs and constitutions that provide for regulatory review bodies. View those results here.

  • Want to go deeper? 

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s recent regulatory review activity includes:

  • Review of 48 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 45 significant regulatory actions each September.
  • Four rules approved without changes; recommended changes to 42 proposed rules; two rules withdrawn.
  • As of October 2, 2020, OIRA’s website listed 125 regulatory actions under review.
  • Want to go deeper? 

This Checks and Balances newsletter is part of Ballotpedia’s Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking.

You can view an index of these pages here. View the pages and you will come away knowing the difference between the administrative state, the regulatory state, and the dark state—and so much more. New entries to our encyclopedia are added weekly.



Ballotpedia study shows that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules

A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules, as of September 2020.

Cost-benefit analysis is an aspect of agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Cost-benefit analysis requires administrative agencies to consider whether the potential costs of a new rule will outweigh its benefits.

Since President Ronald Reagan issued Executive Order 12291 in 1981, federal administrative agencies have conducted cost-benefit analyses for any new major rules. President Bill Clinton refined cost-benefit analysis requirements in Executive Order 12866 in 1993 and Presidents George W. Bush, Barack Obama, and Donald Trump have maintained cost-benefit analysis requirements in their own executive orders.

Ballotpedia’s study of state agency cost-benefit analysis standards concluded a variety of results.

Many states require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *require cost-benefit analysis*.

Some states require administrative agencies to perform the cost-benefit analysis only in certain circumstances. For instance, Illinois only requires such analysis if a proposed rule may have an impact on small businesses, nonprofit corporations, or small municipalities. Thus, Ballotpedia concluded that those states *conditionally require cost-benefit analysis*.

Some states require administrative agencies to perform a limited cost-benefit analysis before making rules. For instance, Alaska requires agencies to estimate annual costs for the state agency to implement the new rule. Thus, Ballotpedia concluded that those states require *limited cost-benefit analysis*.

Some states do not require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *do not require cost-benefit analysis*.

To learn more about Ballotpedia’s survey related to agency dynamics, see here:
Agency dynamics: States that require administrative agencies to conduct a cost-benefit analysis before implementing rules

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

Additional reading:



Federal Register weekly update: 2020 page total tops 60,000 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 September 21 to September 25, the Federal Register grew by 1,510 pages for a year-to-date total of 60,682 pages. Over the same period in 2019 and 2018, the Federal Register reached 51,364 pages and 49,264 pages, respectively. As of September 25, the 2020 total led the 2019 total by 9,318 pages and the 2018 total by 11,418 pages.

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

This week’s Federal Register featured the following 550 documents:

• 416 notices
• 16 presidential documents
• 49 proposed rules
• 69 final rules

No proposed or final rules 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 24 significant proposed rules, 54 significant final rules, and one significant notice as of September 25.

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

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

Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register

Additional reading:
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



Office of Personnel Management proposes to reclassify ALJs within civil service

The Office of Personnel Management (OPM) on September 21 issued a proposed rule that would reclassify administrative law judges (ALJ) within the federal civil service. The proposed rule aims to implement President Donald Trump’s (R) Executive Order 13843 of July 2018, which moved ALJs from the competitive service to the excepted service.

Prior to E.O. 13843, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.

President Trump issued E.O. 13843 in response to the United States Supreme Court’s June 2018 decision in _Lucia v. SEC_, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications, according to the order.

Opponents of Trump’s executive order have argued that moving ALJs outside of the competitive service threatens their impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.

The proposed rule from OPM requires that agency heads appoint new ALJs to positions within the excepted service. The proposed rule also clarifies that certain protections aimed at ensuring the independence of ALJs remain intact, such as the prohibition against agencies subjecting ALJs to performance reviews and the role of the Merit Systems Protection Board (MSPB) in overseeing ALJ discipline. The proposed rule is open to public comments through November 20, 2020.

Additional reading:
Presidential Executive Order 13843 (Donald Trump, 2018)
Lucia v. SEC
Civil service
Comment period



FCC moves away from adherence to formal adjudication practices

The Federal Communications Commission (FCC) on September 14 released a Report and Order allowing the agency’s adjudicators to conduct more hearings through written testimony rather than in-person, trial-type procedures.

The Communications Act of 1934 does not require the FCC to hold on-the-record hearings or follow formal adjudication procedures. However, the agency has historically modeled its hearings on the Administrative Procedure Act’s (APA) formal adjudication procedures, which require trial-type hearings presided over by an administrative law judge (ALJ). The FCC’s order shifts the agency’s default approach to hearings from formal, trial-type processes to informal procedures that rely on written testimony. The order allows the Commission or the presiding officer in a case to direct that a hearing be conducted through written testimony rather than trial-type procedures when appropriate. In order to determine whether written testimony satisfies procedural due process requirements in a particular case, the presiding officer must apply the three-part test from the U.S. Supreme Court decision in _Mathews v. Eldridge_, which evaluates the fairness and reliability of existing procedures in addition to the added value of further procedural safeguards.

The debate about the breadth of procedural due process protections in formal and informal adjudication is one of the areas of disputation key to understanding the administrative state. While some scholars argue that formal adjudication’s trial-type hearings are necessary to satisfy due process, others claim that the written testimony provided during informal adjudication is sufficient.

Additional reading:
Procedural due process rights (administrative state)
Adjudication (administrative state)
Federal administrative adjudicators



Payroll tax deferral plan subject to challenge under Congressional Review Act, GAO confirms

On September 15, the Government Accountability Office (GAO) sent a letter to U.S. Senate Minority Leader Chuck Schumer (D-N.Y.) and Senator Ron Wyden (D-Ore.) clarifying that a recent IRS guidance document was subject to challenge through the Congressional Review Act (CRA).

The IRS guidance related to a presidential memorandum issued by President Donald Trump on August 8 that directed the Secretary of the Treasury to defer payroll tax collection for workers who make less than $4000 per paycheck between September and December 2020.

On September 4, U.S. Representative John Larson (D-Conn.) introduced a resolution of disapproval under the CRA in an attempt to block the IRS guidance from going into effect. As of September 18, the resolution had 28 cosponsors, all members of the Democratic Party.

Larson argued in a press release that Trump’s deferral policy “is the first step towards a long-time conservative dream to end Social Security as we know it. This is a direct attack on our country’s most popular program that must be stopped.” The administration argued that the deferral would “put money directly in the pockets of American workers and generate additional incentives for work and employment.”

The CRA gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, 17 out of the over 90,767 rules published in the _Federal Register_ during that time have been repealed using the CRA. To block the IRS guidance, both houses of Congress would have to pass a CRA resolution of disapproval and get President Trump to sign it into law.

To learn more about the Congressional Review Act or guidance documents, see here:
Congressional Review Act
Guidance (administrative state)

Additional reading:
Presidential memorandum
Administrative state
Federal government responses to the coronavirus (COVID-19) pandemic, 2020
U.S. Government Accountability Office
Internal Revenue Service



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

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:In this month’s edition of Checks and Balances, we review a legal challenge to 2020 census changes; a proposal from the U.S. Department of Justice (DOJ) to modernize the federal Administrative Procedure Act (APA); and agency rulemakings from the U.S. Department of Labor (DOL) and the DOJ that seek to limit the use of guidance documents.

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

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



In Washington

Census changes face challenge 

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

DOJ urges Congress to modernize administrative procedures

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

Agencies move to rein in guidance practices

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

In the states

Pennsylvania Supreme Court justice expresses misgivings about judicial deference

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

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

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

Narrowing Chevron Deference through Administrative Law

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

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

  • Want to go deeper?

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

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

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

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


Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s recent regulatory review activity includes:

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

This Checks and Balances newsletter is part of Ballotpedia’s Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking.

You can view an index of these pages here. View the pages and you will come away knowing the difference between the administrative state, the regulatory state, and the dark state—and so much more. New entries to our encyclopedia are added weekly.



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

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

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

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

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

• 336 notices
• five presidential documents
• 30 proposed rules

• 31 final rules

One final rule concerning gluten-free food labeling was deemed significant under E.O. 12866—meaning that it could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued 24 significant proposed rules, 50 significant final rules, and one significant notice as of September 11.

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

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

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

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


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

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

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

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

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

Mr. B. plans to appeal the decision.

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

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

Additional reading:


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