Tagadministrative state

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

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

This edition: 

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 We also review recent SCOTUS activity concerning administrative law, and a new Biden executive order that rescinded executive orders related to the administrative state issued by former President Donald Trump (R). 

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

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


In Washington

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

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

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

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

Kansas proposal would create legislative veto over agency rules

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

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

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

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

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

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

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 16 significant regulatory actions. 
  • No rules approved without changes; recommended changes to eight proposed rules; eight rules withdrawn.
  • As of March 1, 2021, OIRA’s website listed 22 regulatory actions under review.
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Checks and Balances: REINS Act reintroduced in 117th Congress

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 executive orders issued by President Joe Biden (D) that rescinded executive orders related to the administrative state issued by former President Donald Trump (R). We also examine the reintroduction of the Regulations from the Executive in Need of Scrutiny Act (REINS Act) in the 117th Congress as well as new federal legislation aimed at strengthening the nondelegation doctrine. 

At the state level, we take a look at a ruling from the Oklahoma Supreme Court that reaffirmed the nondelegation doctrine in the state; executive agency reorganization efforts from governors in Vermont and South Dakota; and two constitutional amendments in Pennsylvania aimed at limiting the governor’s emergency powers. 

We also highlight a new analysis that found a federal regulations-to-laws ratio of 19-to-1 in 2020. As always, we wrap up with our Regulatory Tally, which features information about the 113 proposed rules and 235 final rules added to the Federal Register in January and OIRA’s regulatory review activity.


In Washington

Biden revokes Trump executive orders on the administrative state

  • What’s the story? President Joe Biden (D) in his first days in office issued three executive orders that revoked executive orders issued by former President Donald Trump (R) related to energy regulation policy, regulatory practice, and the civil service.
  • In Executive Order 13990, Biden revoked a Trump executive order that established the Trump administration’s policy for energy regulation.
  • Biden’s E.O. 13992 revoked six Trump administration executive orders on regulatory practice. The revoked orders included the Trump administration’s 2-for-1 regulatory policy, which required agencies to eliminate two old regulations for each new regulation issued. Other revoked policies included the elimination of certain non-statutory advisory committees, a prohibition on binding agency guidance, a requirement that agencies provide the public with fair notice of regulations, and a requirement that agencies consider cost reduction efforts in administrative actions.
  • Biden’s E.O. 14003 revoked four Trump administration executive orders on the civil service. The revoked policies included the creation of a new Schedule F in the excepted service for competitive service employees who serve in policy-related roles, efforts to streamline collective bargaining activities and reduce associated taxpayer costs, and a bid to expedite removal procedures for poor-performing federal employees.
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REINS Act reintroduced in 117th Congress

  • What’s the story? U.S. Senator Rand Paul (R-Ky.) on January 27 joined 24 Republican U.S. senators to reintroduce the Regulations from the Executive in Need of Scrutiny Act (REINS Act), which would require Congress to approve new major rules proposed by executive branch agencies before they can be enforced. 
  • The REINS Act defines major agency regulations as those that have financial impacts on the U.S. economy of $100 million or more, increase consumer prices, or have significant harmful effects on the economy.
  • Republican lawmakers have introduced the REINS Act during every session of Congress since the 112th Congress (2011-2012).
  • Wisconsin became the first and only state to implement the REINS Act at the state level in 2017.
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Federal legislation aims to strengthen nondelegation doctrine

  • What’s the story? A new bill aims to prohibit Congress from delegating legislative power to other branches of government, including administrative agencies. The bill would strengthen the federal nondelegation doctrine—an administrative law principle that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities.
  • U.S. Senator Rand Paul (R-Ky.) introduced the legislation on January 28.
  • The bill would also direct the Comptroller General of the United States to issue a report to Congress detailing what the proposed legislation describes as, in its words, “the extent of the problem of unconstitutional delegation to the end that such delegations can be phased out.”
  • Want to go deeper?

In the states

Oklahoma Supreme Court decision reaffirms nondelegation doctrine

  • What’s the story? The Oklahoma Supreme Court on January 26 reconfirmed the state court’s jurisprudence in support of the nondelegation doctrine in the gambling case Treat v. Stitt.
  • Oklahoma lawmakers sued Governor Kevin Stitt (R), arguing that he had exceeded his authority when he entered into two 2020 tribal gambling compacts on behalf of the state. 
  • The Oklahoma governor’s authority to enter into tribal compacts is statutory rather than constitutional—meaning that it is delegated to the governor by the legislature through specific laws. 
  • Under the State Tribal Gaming Act, the Oklahoma governor can negotiate tribal gambling compacts within the bounds of the statute’s Model Compact. If the governor seeks to enter into a treaty that differs from the Model Compact, they must obtain approval from the legislature’s Joint Committee, which oversees agreements between tribes and the state. 
  • The court held that Stitt had unlawfully entered into the tribal gambling compacts because the compacts deviated from the bounds of the Model Compact. It also held that Stitt failed to obtain the approval of the Joint Committee for the non-standard compacts.
  • The court in July had previously held that two other tribal gambling compacts entered into by Stitt were similarly unlawful.
  • Justice James Winchester authored the case opinion. Justices Richard Darby, Yvonne Kauger, Douglas Combs, Noma Gurich, and John Reif concurred. Justices James Edmunson and Tom Colbert recused themselves from the case. John Kane dissented, claiming that the tribes should have been indispensable parties to the lawsuit.
  • Justice Dustin Rowe concurred with the result, but also argued that approval of the compacts by the Joint Committee would violate the nondelegation doctrine because the committee does not have the authority to amend Oklahoma law.
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Governors focus on agency reorganization 

  • What’s the story? Governors in two states have recently issued executive orders aimed at reorganizing agencies of the executive branch—with different results.
  • The Vermont House of Representatives on February 5 voted 108-40 to block Vermont Governor Phil Scott’s (R) executive order that would have established a new state law enforcement agency. 
  • Scott’s executive order, issued on January 14, would have merged all of the state’s law enforcement divisions under a newly created Agency of Public Safety.
  • Legislators argued that the proposed agency merger raised concerns about costs and agency independence that would be better addressed through the legislative process.
  • Vermont legislators previously blocked two of Scott’s executive orders aimed at reorganizing executive agencies. One of these orders—a proposal to merge the Vermont Lottery Commission and the Department of Liquor Control—was later approved via legislation.
  • In a statement following the House vote, Scott expressed appreciation for lawmakers’ interest in pursuing the reorganization plan through legislation.
  • South Dakota Governor Kristi Noem (R) on January 19 issued a similar executive order that would restructure executive branch agencies by merging the Department of Agriculture and the Department of Environment and Natural Resources to form a new Department of Agriculture and Natural Resources (DANR). Noem claims that the merger will strengthen agriculture operations in the state while promoting conservation efforts.
  • The state legislature has the authority to oppose the merger, but no lawmakers had raised objections as of February 5.
  • Want to go deeper?

Pennsylvania voters will decide whether to limit governor’s emergency powers

  • What’s the story? The Pennsylvania House of Representatives on February 5 approved two constitutional amendments that will allow Pennsylvania voters to decide whether to limit the governor’s emergency powers. 
  • The Pennsylvania State Senate previously approved the constitutional amendments on January 26. Both Republican-controlled chambers of the Pennsylvania General Assembly voted to approve the constitutional amendments largely along party lines.
  • The first constitutional amendment would limit a governor’s emergency disaster declaration to 21 days and allow state legislators to extend the declaration by passing a concurrent resolution. Under the current state constitution, the governor’s emergency disaster declaration can last up to 90 days and be extended indefinitely.
  • The second constitutional amendment would authorize the General Assembly to terminate an emergency disaster without the governor’s approval. When the General Assembly passed concurrent resolutions to terminate the governor’s coronavirus-related emergency disaster last summer, the state Supreme Court ruled that gubernatorial approval was required.
  • Republican lawmakers claim that the constitutional amendments would balance the separation of powers in the state and bring emergency power closer to the hands of the people. Democratic opponents, including Governor Tom Wolf, argue that the constitutional amendments seek to usurp executive power and would slow down the state’s emergency response by requiring legislative action.
  • The constitutional amendments will appear on the May 18, 2021, primary ballot.
  • Thirty-three state legislatures, according to the National Conference of State Legislatures, have moved in 2021 to place limits on executive emergency authority as of February 8.
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Study finds 19 regulations for every law passed in 2020

New analysis from the Competitive Enterprise Institute (CEI) found that the number of regulations issued by federal administrative agencies outpaced on a 19-to-1 ratio the number of laws passed by Congress and enacted by the president in 2020. Congress and the president enacted 178 laws in 2020 while federal agencies issued 3,353 regulations. The same analysis found the following regulations-to-laws ratios over the past decade:

  • 2019: 28-to-1
  • 2018: 11-to-1
  • 2017: 34-to-1
  • 2016: 18-to-1
  • 2015: 30-to-1
  • 2014: 16-to-1
  • 2013: 51-to-1
  • 2012: 29-to-1
  • 2011: 47-to-1
  • 2010: 16-to-1
  • Want to go deeper
    • Click here to read the full analysis, which includes regulations-to-laws ratios dating back to 2003.

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 132 significant regulatory actions. 
  • Seven rules approved without changes; recommended changes to 57 proposed rules; 67 rules withdrawn; one rule subject to a statutory or judicial deadline.
  • As of February 1, 2021, OIRA’s website listed 14 regulatory actions under review.
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Federal Register weekly update: Biden administration publishes 23 final rules

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 Feb. 1 through Feb. 5—the third week of the Biden administration—the Federal Register grew by 922 pages for a year-to-date total of 8,536 pages. During the same period of the Trump administration in 2017, the Federal Register grew by 1,098 pages for a year-to-date total of 10,440 pages.

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

This week’s Federal Register featured the following 478 documents:

  • 392 notices
  • 10 presidential documents
  • 23 proposed rules
  • 53 final rules

The Biden administration more than doubled its final rule publication this week. The administration published 23 final rules last week and 10 final rules in its first week.

One proposed rule concerning critical habitat designations for the ringed seal and bearded seal was 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 two significant proposed rules as of Feb. 5.

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

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



Supreme Court hears case about presidential control of independent agencies

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 U.S. Supreme Court cases concerning Medicaid work requirements and executive control of independent agencies. We also examine a new bill that would require the Government Accountability Office (GAO) to send Congress a report on major midnight regulations. 

At the state level, we take a look at the appointment of Florida’s new chief administrative law judge; Kentucky legislation that aims to limit executive authority in light of the coronavirus pandemic; and a decision by the Colorado Supreme Court that requires judicial deference to state agency disciplinary decisions. 

We also update readers on the Trump administration’s 2-for-1 regulatory policy in fiscal year 2020. As always, we wrap up with our Regulatory Tally, which features information about the 2,158 proposed rules and 3,350 final rules added to the Federal Register in 2020 and OIRA’s regulatory review activity.


In Washington

U.S. Supreme Court hears oral argument in case about presidential control of independent agencies

  • What’s the story? The U.S. Supreme Court will decide in Collins v. Mnuchin whether restrictions Congress placed on the ability of the president to remove the director of the Federal Housing Finance Agency (FHFA) amount to an unconstitutional violation of separation of powers principles. The court heard oral argument in the case on December 9. 
  • Opponents of the FHFA’s structure argue that Congress interfered with the power of the executive branch to control the agency by creating a structure in which the agency’s single director has protections against removal by the president. Independent agencies are generally headed by multi-member commissions with removal protections, rather than a single director.
  • Supporters of the FHFA’s design argue that the U.S. Constitution, in their view, allows Congress to insulate some agencies from direct presidential control.
  • The U.S. Supreme Court in June decided a similar case, Seila Law v. Consumer Financial Protection Bureau, ruling 5-4 that the removal protections given to the single director of the Consumer Financial Protection Bureau were unconstitutional.
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New bill would require GAO to send Congress a report on major midnight regulations

  • What’s the story? Representative Gerald Connolly (D-Va.) on December 14 introduced the Midnight Regulations Review Act in the U.S. House of Representatives. The bill would require the Government Accountability Office (GAO) to send Congress a report on major regulations made by outgoing presidents just before the transition to a new administration.
  • The bill requires the GAO to send the report to Congress within the first five weeks of a new presidential administration. The report must identify any new major rules that Congress could block using the Congressional Review Act (CRA). 
  • The bill defines major rules as those that would have an annual economic effect of $100,000,000 or more, would cause major cost increases for consumers, industries, or government agencies, or would have significant adverse effects on competition, employment, investment, productivity, innovation, or trade.
  • Under the CRA, Congress has a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, Congress has used it to repeal 17 out of the over 90,767 rules published in the Federal Register during that time. Congress blocked 16 of those rules at the beginning of the Trump administration as it reviewed rules made by agencies at the end of the Obama administration.
  • Connolly’s bill had four Democratic party cosponsors as of December 18: Carolyn Maloney (N.Y.), Raja Krishamoorthi (Ill.), Jackie Speier (Calif.), and Eleanor Holmes Norton (D.C.)
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U.S. Supreme Court will hear challenge to HHS approval of Medicaid work requirements

  • What’s the story? The U.S. Supreme Court on December 4 agreed to hear a case regarding agency approval of work requirements for state Medicaid beneficiaries. In Azar v. Gresham, the court will decide whether the Medicaid statute empowers the secretary of the U.S. Department of Health and Human Services (HHS) to approve state plans for work requirements to encourage Medicaid beneficiaries to find alternative healthcare coverage.
  • The U.S. District Court for the District of Columbia blocked HHS from approving state plans in Arkansas and New Hampshire in 2019. 
  • The U.S. Court of Appeals for the District of Columbia Circuit affirmed the decision of the district court. The court held that HHS focused on alternative goals that go beyond what the agency may consider when deciding whether to grant a waiver from Medicaid requirements. The court ruled that HHS failed the Administrative Procedure Act’s arbitrary-or-capricious test, which requires courts to invalidate agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
  • HHS in 2018 began approving state requests for waivers from Medicaid requirements. The waivers allow states to test plans that require certain Medicaid beneficiaries to work or pursue job-training to remain enrolled in the program. States argued that such plans would help beneficiaries find employer-sponsored or individual health insurance plans and free up Medicaid resources for those who cannot afford healthcare coverage on their own.
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In the states

Kentucky legislation aims to limit governor’s emergency powers

  • What’s the story? The Republican-majority Kentucky General Assembly on January 7 passed four bills aimed at limiting the emergency powers of the state governor. The Kentucky legislation exemplifies a broader national trend in which state legislatures have moved to place limits on executive power in response to the coronavirus pandemic. 
  • House Bill 1 would allow any businesses, schools, or associations to remain open as long as their operating plans meet or exceed guidance issued by the federal Centers for Disease Control and Prevention (CDC). The bill aims to override restrictions placed on businesses and other groups by Kentucky Governor Andy Beshear (D) in response to the coronavirus pandemic.
  • House Bill 5 would limit the authority of the governor to temporarily reorganize administrative agencies and transfer personnel without legislative approval.
  • Senate Bill 1 would require that executive orders issued by the governor that restrict in-person meetings as well as school, business, or church functions sunset after 30 days unless the legislature approves an extension. The bill also allows the state legislature to terminate declarations of emergency at any time.
  • The final bill, Senate Bill 2, would make it more difficult for the governor to direct state administrative agencies to make emergency regulations without justifying the emergency nature of the situation. The bill defines an emergency situation and requires agencies to demonstrate such emergencies with documentary evidence to receive approval for new regulations from the Administrative Regulation Review Subcommittee.
  • At least 18 state legislatures, according to the National Conference of State Legislatures, have moved to place limits on executive authority as of January 15.
  • Want to go deeper?

Florida Administrative Commission appoints new chief administrative law judge

  • What’s the story? The Florida Administrative Commission on December 15 appointed Pete Antonacci to serve as chief administrative law judge (ALJ) of the Florida Division of Administrative Hearings (DOAH).
  • As chief administrative law judge, Antonacci will manage 31 administrative law judges within the DOAH as they adjudicate challenges to state agency rules. 
  • The Florida Administrative Commission is composed of Governor Ron DeSantis (R) and his cabinet.
  • State ALJ operations vary by state. While some states mirror the federal ALJ structure by allowing state agencies to maintain a roster of state ALJs, 28 states, including Florida, operate a central panel of ALJs who are assigned to agencies as needed. 
  • Want to go deeper?

Colorado Supreme Court mandates deference to state agency disciplinary actions 

  • What’s the story? The en banc Colorado Supreme Court on December 21 ruled in DOC v. Stiles that the Colorado State Personnel Board (Board) must defer to disciplinary decisions made by state agencies. The court’s decision aimed to shed light on the standard the board must apply when reviewing the disciplinary decisions of other state agencies. 
  • When the board considers appeals of decisions to discipline agency employees, the court held that they must apply the “arbitrary, capricious, or contrary to rule or law” standard instead of reviewing the facts of the case on a de novo basis. 
  • The court remanded the case back to the state administrative law judge (ALJ) acting on behalf of the board who had overruled the state agency disciplinary action at issue in the case. 
  • Want to go deeper?

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The Trump administration’s 2-for-1 regulatory policy in review

The Office of Information and Regulatory Affairs (OIRA) issued a 2020 update on the Trump administration’s 2-for-1 regulatory policy as part of the Fall 2020 edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions. The 2-for-1 policy applies to economically significant rules—those with an anticipated economic impact of $100 million or more. The update featured the following highlights:

  • Agencies eliminated $198.6 billion in overall regulatory costs across the federal government in fiscal year 2020.
  • Agencies eliminated 5.5 regulations for every new significant regulation added.
  • Agencies issued 538 deregulatory actions overall.

From 2017 to 2019, agencies eliminated a cumulative $50.9 billion in regulatory costs.

The Trump administration as of January 15, 2021 had yet to publish a formal update on the 2-for-1 regulatory policy. An analysis by the Competitive Enterprise Institute, however, concluded that the administration issued 101 completed deregulatory actions and 31 completed regulatory actions in fiscal year 2020 for a 3-to-1 ratio. OIRA reported a 1.7-to-1 ratio in 2019, a 4-to-1 ratio in 2018, and a 22-to-1 ratio in 2017.

President Donald Trump (R) enacted the 2-for-1 regulatory policy via Executive Order 13771 in January 2017. The order instituted annual regulatory budgets for federal agencies and required agencies to eliminate two old regulations for each new regulation issued. The future of the 2-for-1 regulatory policy under the incoming Biden administration remains unclear.

  • Want to go deeper

Regulatory tally: 2020 in review

Federal Register

  • The Trump administration added a total of 87,352 pages to the Federal Register in 2020—a 20% increase from the 2019 total of 72,564 pages, 28% increase from the 2018 total of 68,082 pages, and a 41% increase from the 2017 total of 61,950 pages.
  • The 2020 Federal Register page total is the Trump administration’s highest annual page total. It also ranks as the second-highest annual page total behind the Obama administration’s 95,894 page total in 2016 .
  • The Trump administration added an average of 1,648 pages to the Federal Register each week in 2020. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
  • The 2020 Federal Register included the following 28,309 documents: 22,499 notices, 327 presidential documents, 2,158 proposed rules, and 3,350 final rules.
  • 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.
  • Want to go deeper? 

Office of Information and Regulatory Affairs (OIRA)

OIRA’s 2020 regulatory review activity included the following actions:

  • Review of 676 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 545 significant regulatory actions each year.
  • The Trump administration reviewed 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.
  • Seventy-one rules approved without change; 35 rules withdrawn; one emergency rule classification; four rules subject to statutory or judicial deadlines; recommended changes to 564 proposed rules.
  • As of January 4, 2021, OIRA’s website listed 118 regulatory actions under review.
  • Want to go deeper? 


Federal Register weekly update: Trump administration’s highest weekly final rule total 

Banner with the words "The Administrative State Project"

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

From January 11 through January 15, the Federal Register grew by 3,138 pages for a year-to-date total of 4,874 pages. Over the same period in 2020, 2019, and 2018, the Federal Register reached 1,730 pages, 106 pages, and 2,028 pages, respectively. As of January 15, the 2021 total led the 2020 total by 3,144 pages, the 2019 total by 4,768 pages, and the 2018 total by 2,846 pages. 

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

This week’s Federal Register featured the following 730 documents:

• 558 notices

• four presidential documents

• 50 proposed rules

• 118 final rules

One proposed rule withdrawing three proposed rules previously issued by the Environmental Protection Agency and three final rules concerning drinking water, unmanned aircraft systems, and small businesses certification 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 Trump administration in 2021 has issued two significant proposed rules and five significant final rules.

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.

Additional reading:

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


Differing deference views in FDA abortion pill case

On January 12, the U.S. Supreme Court temporarily restored restrictions implemented by the U.S. Food and Drug Administration (FDA) governing the dispensation of an abortion-inducing pill. A district court had ordered the FDA to loosen restrictions on the drug because, in its view, the COVID-19 pandemic made it more difficult for women to access the pills.

In a concurring opinion attached to the court’s action, Chief Justice Roberts argued that the district court should have given judicial deference to the FDA’s judgment about how to adjust its rules during the pandemic. 

He wrote, “Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’”

Justice Sotomayor wrote a dissenting opinion, joined by Justice Elena Kagan, agreeing with Roberts that “deference is due to reasoned decisions of public health officials grappling with a deadly pandemic.” However, she wrote that “the record here is bereft of any reasoning [… and there] simply is no reasoned decision here to which this Court can defer.”   

Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. It refers to when a federal court yields to an agency’s interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. In other words, when a law or regulation is challenged in court, the agency’s interpretation is upheld if it is considered to be reasonable, even if the court would prefer a different interpretation.

To learn more about judicial deference or federal responses to the COVID-19 pandemic, see the links below.

To read the full text of the decision, click here.

Additional reading:



Colorado Supreme Court rules that state board must defer to disciplinary actions taken by other state agencies

Photo of Colorado State Supreme Court building

On Dec. 21, the Colorado Supreme Court ruled in DOC v. Stiles that the Colorado State Personnel Board (Board) must defer to disciplinary decisions made by state agencies. The court’s decision aimed to shed light on the standard the Board must apply when reviewing other state agencies’ disciplinary decisions. 

The court held that when the Board considers appeals of decisions to discipline agency employees, they must apply the “arbitrary, capricious, or contrary to rule or law” standard instead of reviewing the facts of the case on a de novo basis. 

The arbitrary or capricious standard instructs the Board to give deference to the disciplinary action taken by the state agency. It prevents the Board from overturning such actions unless the agency failed to give honest consideration to the evidence involved in the case or violated a law or rule. De novo review would allow the Board to evaluate the evidence in the case and make its own decision without regard for the earlier conclusions made by the state agency that decided to discipline an employee.

The court remanded the case back to the state administrative law judge (ALJ), working for the Board, who had overruled the state agency disciplinary action at issue in the case. 

In the opening paragraph of the opinion announcing the decision, Justice Carlos Samour wrote about the stakes of the case in the following way: “At a micro level, it will affect whether Mathew Mark Stiles keeps his job at the Department of Corrections (“DOC”). At a macro level, it will affect the 30,000-plus other certified state employees in Colorado’s personnel system.”

The standard articulated by the Colorado Supreme Court is similar to the arbitrary-or-capricious test established by the federal Administrative Procedure Act. Under that test, courts reviewing agency actions invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

To learn more about state administrative law judges or judicial deference, see here:

Additional reading:

Text of the decision:



Federal Register weekly update: New year, new significant rules

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.

The Federal Register kicked off 2021 by publishing 1,736 pages during the week of Jan. 4 to Jan. 8. Over the same period in 2020, 2019, and 2018, the Federal Register published 418 pages, 34 pages, and 704 pages, respectively. As of Jan. 8, the 2021 total led the 2020 total by 1,318 pages, the 2019 total by 1,702 pages, and the 2018 total by 1,032 pages. 

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

This week’s Federal Register featured the following 486 documents:

  • 403 notices
  • seven presidential documents
  • 24 proposed rules
  • 52 final rules

One proposed rule concerning critical habitat designation for the ringed seal and two final rules regarding the determination of certain pension liabilities and corrections to holiday leave policies for U.S. personal services contractors 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 Trump administration in 2021 has issued one significant proposed rule and two significant final rules.

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

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



Four new Kentucky bills would limit the governor’s emergency powers

On Jan. 7, the Kentucky State House and Senate passed four pieces of legislation aimed at limiting the emergency powers of the state governor.  

The first bill, House Bill 1, would allow any businesses, schools, or associations to remain open as long as their operating plans meet or exceed guidance issued by the federal Centers for Disease Control and Prevention (CDC). The bill aims to override restrictions placed on businesses and other groups by Governor Beshear (D) in response to the coronavirus pandemic. It passed in the House with 70 votes in favor and 25 opposed.

The second bill, House Bill 5, would limit the authority of the governor to temporarily reorganize administrative agencies and transfer personnel without legislative approval. It passed in the House with 73 votes in favor and 22 opposed.

The third bill, Senate Bill 1, would limit the power of the governor during states of emergency. The bill would sunset after 30 days executive orders issued by the governor related to restrictions on in-person meetings and the functioning of schools, businesses, and churches unless the legislature approves an extension. The bill also allows the state legislature to terminate declarations of emergency at any time. It passed in the Senate with 27 votes in favor and nine opposed.

The final bill, Senate Bill 2, would make it more difficult for the governor to direct state administrative agencies to make emergency regulations without justifying the emergency nature of the situation. The bill defines an emergency situation and requires agencies to demonstrate such emergencies with documentary evidence to receive approval for new regulations from the Administrative Regulation Review Subcommittee. It passed in the Senate with 31 votes in favor and six opposed. 

The General Assembly may override a possible gubernatorial veto with a majority vote in both houses.

To learn more about state responses to the administrative state or the COVID-19 pandemic, see here:

Additional reading:

Text of House Bill 1:

Text of House Bill 5:

Text of Senate Bill 1:

Text of Senate Bill 2:

News report about the bills:

Kentucky legislative procedure:



Federal Register weekly update: 2020 year-to-date total of 84,198 pages

Banner with the words "The Administrative State Project"

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

From December 21 to December 25, the Federal Register grew by 1,328 pages for a year-to-date total of 84,198 pages. Over the same period in 2019 and 2018, the Federal Register reached 71,734 pages and 67,676 pages, respectively. As of December 25, the 2020 total led the 2019 total by 12,464 pages and the 2018 total by 16,522 pages. 

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

Last week’s Federal Register featured the following 444 documents:

  • 361 notices
  • four presidential documents
  • 26 proposed rules
  • 53 final rules

One proposed rule regarding railroad safety and two final rules concerning the Farm Credit Administration’s repeal of certain amortization limits and the U.S. Department of Justice’s effort to streamline reporting procedures under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 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 Trump administration in 2020 has issued 34 significant proposed rules, 73 significant final rules, and one significant notice as of December 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.

Additional reading: