Tagadministrative state

OIRA reviewed 38 significant rules in September

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In September 2021, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 38 significant regulatory actions issued by federal agencies. OIRA approved one of these rules with no changes and approved the intent of 35 rules while recommending changes to their content. Two rules were withdrawn from the review process by the issuing agencies.

OIRA reviewed 48 significant regulatory actions in September 2020, 42 significant regulatory actions in September 2019, 21 significant regulatory actions in September 2018, and 16 significant regulatory actions in September 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 45 significant regulatory actions each September.

OIRA has reviewed a total of 383 significant rules in 2021. The agency reviewed a total of 676 significant rules in 2020, 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of October 1, 2021, OIRA’s website listed 89 regulatory actions under review.

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

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, click here.



Federal Register weekly update: Over 600 new documents added

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

From September 27 through October 1, the Federal Register grew by 1,402 pages for a year-to-date total of 54,586 pages.

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

This week’s Federal Register featured the following 638 documents:

  • 502 notices
  • Four presidential documents
  • 39 proposed rules
  • 93 final rules

Three proposed rules, including standards related to the manufacture of class II ozone-depleting substances for feedstock from the Environmental Protection Agency, and 11 final rules, including rulemaking and guidance procedures from the Education Department, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 64 significant proposed rules, 80 significant final rules, and one significant notice as of October 1.

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 2020, 2019, 2018, and 2017. 

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Checks and Balances – September 2021 – Sue and settle returns to the EPA

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 federal legislation that would return administrative law judges (ALJs) to the competitive civil service; a new statutory interpretation from the U.S. Department of Education allowing states to regulate student loan servicers; recent decisions from the U.S. Supreme Court that allowed for the continuation of the Trump administration’s “Remain in Mexico” policy and that struck down the Centers for Disease Control and Prevention’s eviction moratorium; and the return of sue and settle practices at the Environmental Protection Agency. 

At the state level, we take a look at state and local jurisdictions with eviction moratoriums that remain in place after the Supreme Court’s decision.

We also highlight a new report from the U.S. Government Accountability Office that surveyed the use of facial recognition technology by federal agencies. As always, we wrap up with our Regulatory Tally, which features information about the 187 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.


In Washington

Bill aiming to return ALJs to competitive service advances in House

What’s the story? 

The U.S. House Reform and Oversight Committee on July 20 voted 24-16 along party lines to advance legislation that would redesignate administrative law judges (ALJs) as members of the competitive civil service and reestablish the U.S. Office of Personnel Management’s authority over the ALJ hiring process. 

President Donald Trump in 2018 moved ALJs from the competitive civil service to the excepted service via Executive Order 13843. The order aimed to align ALJ appointment practices with the U.S. Supreme Court’s decision in Lucia v. SEC, which held that the ALJs of the U.S. Securities and Exchange Commission (SEC) are are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. Prior to the order, 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.

Supporters of the legislation (the Administrative Law Judges Competitive Service Restoration Act) argue that E.O. 13843 threatens ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.“This exposed impartial judges, who determined the outcome of disputes over labor-management relations, claims for Social Security and public health benefits, to political influence,” said the bill’s author, Representative Gerry Connolly (D-Va.).

Opponents of the legislation argue that E.O. 13843 strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria. “By placing ALJs in the excepted service, it gave federal departments and agencies greater flexibility to assess prospective ALJ candidates,” said the committee’s ranking member, Rep. James Comer (R-Ky.).

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Department of Education issues new statutory interpretation allowing states to regulate student loan servicers

What’s the story? 

The U.S. Department of Education (ED) on August 9 announced its departure from the Trump administration’s statutory interpretation of the federal Higher Education Act (HEA) that prevented states from regulating student loan servicers. Under the department’s new interpretation, states will be able to develop and enforce consumer protection standards applicable to student loan servicers as long as they are not preempted by federal law.

“Effective collaboration among the states and federal government is the best way to ensure that student loan borrowers get the best possible service,” said Education Secretary Miguel Cardona in a press release. “We welcome public input on this interpretation and look forward to enhancing consumer protections for student loan borrowers by clarifying the relationship between federal and state law on this issue.” 

Former ED Secretary Betsy DeVos aimed to limit state regulation of student loan servicers in order to avoid what she referred to as a regulatory maze of state and federal requirements. Student loan servicers have argued that additional state regulations will increase both business costs and confusion among borrowers.

“Forcing [federal student loan servicers] to serve dozens of state governments that contradict federal rules will create borrower confusion and worsen the borrowers’ repayment experience,” U.S. House Education and Labor Committee ranking member Virginia Foxx (R-N.C.) told The Washington Post. “The department’s bureaucratic incompetence, combined with inherent design flaws in the Higher Education Act, are the reasons why borrowers get left behind.”

Since 2014, more than half of all states have proposed or implemented state-level requirements for student loan servicers. In some states, such as Virginia and Massachusetts, these requirements take the form of a borrower’s bill of rights—minimum timeliness standards for loan processing, communications, and other concerns. Similar legislation is pending in a dozen states, according to the Student Borrower Protection Center.

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SCOTUS declines to block Remain in Mexico policy, strikes down CDC’s eviction moratorium 

What’s the story? 

The U.S. Supreme Court last month issued two noteworthy decisions concerning the exercise of agency authority. The court first declined to block a district judge’s ruling that ordered the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (known as the “Remain in Mexico” policy). The court later found that the Centers for Disease Control and Prevention’s (CDC) eviction moratorium issued in response to the coronavirus (COVID-19) pandemic was unconstitutional.

In an unsigned order, the court on August 24 declined to block a ruling from U.S. District Judge Matthew Kacsmaryk in Biden v. Texas that directed the Biden administration to reinstate the U.S. Department of Homeland Security’s Migrant Protection Protocols. The program, instituted under the Trump administration, requires asylum-seekers to wait in Mexico prior to their immigration hearings. 

The justices found that the “applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” While six justices supported the order, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer would have issued a stay to block the district court ruling while the case moves through the appeals process.

Two days later, the court issued another unsigned opinion in Alabama Association of Realtors v. U.S. Department of Health and Human Services holding that the CDC’s eviction moratorium unlawfully exceeded the agency’s statutory authority. “It strains credulity to believe that [§361(a) of the Public Health Service Act] grants the CDC the sweeping authority that it asserts,” wrote the majority justices. 

Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer again dissented, arguing in part that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.”

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WOTUS ruling signals return of sue and settle

What’s the story?

U.S. District Judge Rosemary Marquez on August 30 issued a decision in Pasqua Yaqui Tribe et al. v. U.S. Environmental Protection Agency that vacated and remanded the Trump administration’s Navigable Waters Protection Rule (NWPR), which narrowed the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The ruling signals a return to sue and settle practices at the EPA, which the Trump administration had outlawed through an agency directive in 2017.

Sue and settle is a term used to describe cases in which a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process. Through sue and settle, outside groups sue an agency in order to reach a settlement on terms favorable to the regulatory goals of both.

The NWPR adopted a narrow definition of “waters of the United States” (WOTUS) that limited the EPA’s authority to regulate certain waters, including wetlands. The rule adopted Justice Antonin Scalia’s reasoning in Rapanos v. United States (2006) that only wetlands adjacent to navigable waters fall under CWA oversight. A coalition of Native American tribes challenged the rule in the United States District Court for the District of Arizona, arguing that the WOTUS definition under the NWPR disregards established science and is inconsistent with the statutory objectives of the CWA.

The EPA under the Biden administration had “expressed an intent to repeal the NWPR and return to the pre-2015 regulatory regime while working on a new definition of ‘waters of the United States,’” according to Judge Marquez’s opinion. 

Judge Marquez ruled in favor of the plaintiffs, finding that their concerns “are not mere procedural errors or problems that could be remedied through further explanation. Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’” 

It is unclear what standard now controls WOTUS regulation under the CWA. The Trump administration rescinded a 2015 Obama-era WOTUS regulation and the U.S. Supreme Court in Rapanos and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) found the pre-2015 regulations to be overly expansive, according to administrative law scholar Jonathan Adler. 

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In the states

Eviction bans continue across the states

What’s the story? 

The U.S. Supreme Court on August 26 struck down the Centers for Disease Control and Prevention’s (CDC) federal eviction moratorium but similar eviction bans issued in response to the coronavirus (COVID-19) pandemic remain in effect in cities and states across the country.

The following selected state and local jurisdictions had eviction bans in place as of September 13:

  • California’s eviction moratorium remains in effect until September 30. 
  • Illinois’ eviction moratorium expires on October 3. 
  • New Jersey’s eviction ban expires in January 2022. 
  • Washington D.C.’s eviction ban expires in January 2022.
  • New Mexico’s eviction moratorium does not have a set expiration date.
  • New York’s eviction moratorium expires in January 2022.
  • Washington’s eviction ban remains in effect under certain circumstances through October 15.

The above list is not comprehensive and additional eviction bans may remain in effect. State and local programs that aim to support renters seeking rental assistance, such as a Nevada policy that prohibits the eviction of tenants who have applied for rental assistance, may also function as de facto eviction bans.

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GAO report sheds light on federal agency use of facial recognition technology

An August 24 report from the U.S. Government Accountability Office (GAO) found that at least 18 federal agencies use facial recognition technology (FRT).

The GAO survey of 24 federal agencies revealed the following findings: 

  • Sixteen agencies stated that they use FRT for digital access or cybersecurity, including 14 agencies that use FRT for employees to unlock their agency-issued smartphones and two agencies that use FRT to control website access. 
  • Six agencies, including the Department of Homeland Security (DHS), Department of Justice (DOJ), and Department of Defense (DOD) reported using FRT for law enforcement purposes.
  • Five agencies reported using FRT for security purposes, such as controlling building access. 
  • Ten agencies planned to expand their use of FRT.

“It’s becoming increasingly important to get a more comprehensive understanding of the use of facial recognition technology across federal agencies,” Candice Wright, a director in GAO’s Science, Technology Assessment and Analytics Team, told Cox Media Group. “There’s certainly been a lot of advancements recently with facial recognition technology. It has been increasingly used for a range of purposes in both the commercial and government sectors.”

The report raised concerns among privacy advocates, including Adam Schwartz, senior attorney at the Electronic Frontier Foundation. “This technology is dangerous. It leads to people being falsely arrested, it invades our privacy, it deters people from going to protests,” Schwartz told Popular Mechanics. “The government should not be using it at all, so it is pretty sad to read that they’re actually expanding their use of it.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 37 significant regulatory actions. 
  • One rule approved without changes; recommended changes to 33 proposed rules; three rules withdrawn from the review process.
  • As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.
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Federal Register weekly update: 611 new documents added

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

From August 23 through August 27, the Federal Register grew by 1,344 pages for a year-to-date total of 48,294 pages.

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

This week’s Federal Register featured the following 611 documents:

  1. 495 notices
  2. Two presidential documents
  3. 52 proposed rules
  4. 62 final rules

Seven proposed rules and five final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 44 significant proposed rules, 46 significant final rules, and one significant notice as of August 27.

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

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Checks and Balances: FTC expands interpretation of its antitrust enforcement authority

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 recent vote from the Federal Trade Commission to broaden its interpretation of the commission’s antitrust enforcement authority; Attorney General Merrick Garland’s restoration of administrative closure authority for immigration judges; and the latest activity from the U.S. Department of Health and Human Services aimed at rolling back state Medicaid work requirements. 

At the state level, we take a look at the Colorado Supreme Court’s new limits on deference practices in the state; a Wisconsin Supreme Court ruling that affirms agency authority to regulate state water resources; and state legislative approval of an indirect initiative in Michigan repealing the governor’s emergency powers.

We also highlight new commentary from the editorial board of The New York Sun that proposes referring to the current Supreme Court as the Hamburger Court after Columbia law professor Philip Hamburger. As always, we wrap up with our Regulatory Tally, which features information about the 182 proposed rules and 288 final rules added to the Federal Register in July and OIRA’s regulatory review activity.


In Washington

FTC expands interpretation of its antitrust enforcement authority

What’s the story? 

The Federal Trade Commission (FTC) on July 1 voted 3-2 to broaden its interpretation of the commission’s Section 5 authority, which authorizes the FTC to investigate and challenge what it deems “unfair methods of competition in or affecting commerce.” The change could allow the agency to expand enforcement proceedings against companies that don’t expressly violate federal antitrust statutes.

The new interpretation departs from the commission’s 2015 precedent, established through internal guidance, that relied on the consumer welfare standard to determine what constitutes antitrust activity. According to the consumer welfare standard, only companies that artificially raise prices qualify as monopolies for the purposes of FTC enforcement. The FTC did not pursue companies via this standard if enforcement through the Sherman Act or the Clayton Act could address the competitive harm.

Under the FTC’s broadened interpretation of its authority, the commission can issue civil penalties to challenge what it deems to be anti-competitive behavior regardless of whether the behavior violates federal antitrust statutes. The change could allow the FTC to bring enforcement proceedings against tech companies that do not qualify as monopolies but that, in the opinion of FTC Chair Lina Khan, have been alleged to have exhibited anti-competitive practices.

“Withdrawing the 2015 Statement is only the start of our efforts to clarify the meaning of Section 5 and apply it to today’s markets,” wrote Khan in a statement. “Section 5 is one of the Commission’s core statutory authorities in competition cases; it is a critical tool that the agency can and must utilize in fulfilling its congressional mandate to condemn unfair methods of competition.”

FTC Commissioner Christine Wilson issued a dissenting statement arguing that the consumer welfare standard “promotes predictability, administrability and credibility in antitrust enforcement. Without it, we can expect that antitrust enforcement will reflect political motivations rather than reasoned and objective assessments of benefits and harms to consumers.”

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Garland restores immigration judges’ authority to delay deportations

What’s the story? 

Attorney General Merrick Garland on July 15 issued a decision in a case before the Board of Immigration Appeals that reversed a Trump administration policy preventing immigration judges (IJs) from exercising administrative closure—a process that allows IJs to delay the deportation of individuals awaiting green cards or visas. 

Former Attorney General Jeff Sessions issued a 2018 decision that barred IJs from pausing deportation proceedings through administrative closure. “​​Although described as a temporary suspension,” claimed Sessions, “administrative closure is effectively permanent in most instances.” Sessions further argued that the U.S. Department of Homeland Security (DHS), rather than IJs, “has the exclusive authority to decide whether and when to initiate proceedings.” 

Three courts of appeals later rejected Sessions’ position and held that the U.S. Department of Justice’s (DOJ) regulations grant IJs the authority to exercise administrative closure. Garland agreed with the judges in his decision, stating that “administrative closure is ‘plainly within an immigration judge’s authority’ under Department of Justice regulations.” DOJ officials initiated rulemaking procedures in December 2020 aimed at codifying IJs’ administrative closure authority, barring a subsequent DOJ regulation or federal court ruling to the contrary.

Immigration Judge Dana Leigh Marks, executive vice president of the National Association of Immigration Judges, told the Associated Press that Garland’s decision to revive administrative closure will allow IJs to “clear our dockets so we’re dealing with cases that are really ready for hearings.” Former Justice Department official Gene Hamilton, on the other hand, argued that the resurgence of administrative closure will allow individuals residing in the country without legal permission to avoid deportation.

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HHS revokes state Medicaid work requirements

What’s the story? 

The U.S Department of Health and Human Services (HHS) on June 24 withdrew its conditional approval for Medicaid work requirements in Indiana and Arizona. HHS stated that the work requirements failed to, in its words, “promote the objectives of the Medicaid program.” 

Nineteen states applied for waivers to establish some form of work requirements for Medicaid recipients during the Trump administration, according to the Kaiser Family Foundation (KFF). HHS granted conditional approval for waivers in eight states, but federal litigation and the coronavirus (COVID-19) pandemic delayed their implementation.

In February 2021, HHS issued letters to all states with conditionally approved Medicaid work requirements directing those states to begin rolling back their program changes. The department later acted in March to expressly revoke planned Medicaid work requirements in Arkansas, Michigan, New Hampshire, and Wisconsin.

HHS on June 24 issued letters to the Indiana Family and Social Services Administration and the Arizona Health Care Cost Containment System withdrawing conditional approval for the states’ Medicaid work requirements, claiming in part that the work requirements would risk significant coverage losses among Medicaid recipients in the states and thus failed to further the intent of the Medicaid program.

Indiana Governor Eric Holcomb (R) expressed disappointment with the HHS decision, but told the Associated Press that the state would “continue to support the health and well-being of Hoosiers, and our participants will receive much needed job training and career support to help them transition from Medicaid to full employment.”

The Biden administration is expected to reject the remaining pending and conditionally approved state waivers for Medicaid work requirements, according to KFF.

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In the states

Colorado Supreme Court narrows state deference practices

What’s the story? In the wake of the Mississippi Supreme Court’s June 10 rejection of state-level Auer deference, the Colorado Supreme Court followed suit in a June 14 en banc decision that narrowed applications of Brand X deference and Chevron deference practices in the state.

In Nieto v. Clark’s Market, the court declined to extend Brand X deference to a regulation issued by the Colorado Department of Labor and Employment (CDLE). Brand X deference requires courts to defer to reasonable agency interpretations of statutes even when the interpretations conflict with prior court precedent. The challenged regulation in Nieto adopted an interpretation of a state labor law that departed from precedent set by the state Court of Appeals, but the Colorado Supreme Court declined to extend Brand X deference to the agency’s interpretation in the case.

“[T]he CDLE is a state agency, and the [U.S. Supreme] Court’s holding in Brand X is not binding as to parallel state administrative procedure statutes,” wrote Justice Melissa Hart in the opinion. “We have not yet similarly interpreted the Colorado Administrative Procedure Act, and we decline Nieto’s invitation to do so here.”

The justices further rejected state-level Chevron deference, which compels a court to defer to an agency’s interpretation of an unclear statute. Justice Hart stated that while the court has applied Chevron-style deference in the past, “we have made clear that, while agency interpretations should be given due consideration, they are ‘not binding on the court.’”

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Wisconsin Supreme Court affirms agency authority to regulate state water resources

What’s the story? The Wisconsin Supreme Court on July 8 issued decisions in two environmental cases that had pitted the state legislature against the state Department of Natural Resources (DNR) in a disagreement over which government entity has the authority to regulate water pollution and irrigation practices. In both cases, the court held 4-2 that the DNR is authorized to restrict permits in order to protect the state’s water resources.

The pair of cases, both initiated by Clean Wisconsin Inc. and Pleasant Lake Management District, centered on Wisconsin Act 21—a 2011 law that limits state agency authority by prohibiting state agencies from taking actions not specifically authorized by the state legislature.

The first case concerned an administrative law judge’s (ALJ) order that the DNR limit the size of a dairy herd causing nearby groundwater contamination. The DNR under then-Governor Scott Walker (R) did not enforce the ALJ’s directive, arguing that Act 21 prohibited the agency from carrying out the order.

A Dane County Circuit Court judge in 2016 affirmed the DNR’s authority to limit the size of the dairy herd to address water pollution. The DNR appealed the decision to the Wisconsin Supreme Court. The current DNR under Governor Tony Evers (D) changed its position and had since claimed regulatory authority in the case.

The Wisconsin Supreme Court upheld the circuit court’s decision. Writing for the majority, Justice Jill Karofsky stated “we conclude that an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with [Act 21].”

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

The Wisconsin Supreme Court again affirmed the circuit court’s decision in the case, holding that the DNR erroneously claimed that it lacked regulatory authority. Writing for the majority, Justice Rebecca Dallet stated, “The DNR’s authority to consider the environmental effects of proposed high capacity wells, while broad, is nevertheless explicitly permitted by statute.”

Chief Justice Annette Ziegler joined Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky in both majority opinions. Justice Brian Hagedorn did not participate in the case.

Justices Rebecca Bradley and Patience Roggensack dissented, arguing in part: “Elevating its environmental policy preferences over the legislature’s prerogative to reclaim its constitutional authority, the majority distorts the plain language of [Act 21] to achieve its own ends.”

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Michigan legislators approve indirect initiative repealing governor’s emergency powers

What’s the story? The Michigan House of Representatives on July 21 voted 60-48 to approve the indirect initiative that repealed the Emergency Powers of Governor Act (EPGA)—a 1945 state law that authorized the governor to issue regulations with associated penalties to bring emergencies under control.

The campaign Unlock Michigan filed the initiative in June 2020, three months after Governor Gretchen Whitmer (D) issued the first coronavirus-related disaster declaration. In October 2020, the Michigan Supreme Court voted 4-3 to strike down the EPGA, holding that the law violated the nondelegation doctrine by unconstitutionally delegating legislative power to the executive branch. While the Supreme Court rendered the EPGA moot, Unlock Michigan continued to advocate for the law’s repeal to prevent the court from changing course in the future.

The House vote followed the state Senate’s 20-15 vote to approve the initiative. The Michigan governor cannot veto the legislature’s approval of an indirect citizen-initiated measure. 

Since March 2020, the following nine states have enacted 12 bills aimed at increasing legislative oversight of gubernatorial emergency authority: Arkansas, Colorado, Indiana, Kansas, Kentucky, New York, Ohio, Pennsylvania, and Utah. 

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The Hamburger Court?

The editorial board of The New York Sun on July 2 questioned, “What in the world are historians going to call this Supreme Court?”

The board rejected the traditional Roberts Court nomenclature in favor of the Hamburger Court after Columbia law professor and founder of the New Civil Liberties Alliance (NCLA) Philip Hamburger. The board argued that Hamburger’s scholarly work, which they described as aimed at reining in the administrative state, coupled with NCLA’s six victories in Supreme Court cases this term in which it filed amicus briefs, demonstrates Hamburger’s growing influence in legal circles.

The board argued that Hamburger’s work has, in their opinion, spurred a movement to return to constitutional principles:

“We understand that a lot of credit can be spread around for the advances in the long slog away from the doctrine of ‘Chevron deference,’ which has held sway in our courts for decades and requires that great deference is owed to our administrative agencies, however unaccountable they might be. Yet that only underlines the size of the problem and the valor of Mr. Hamburger and his colleagues in taking it on.

“‘Most Americans do not realize,’ the New Civil Liberties Alliance notes on its Web site, ‘that Congress today enacts fewer than one hundred statutes per year, handing over the task of legislating to federal administrative agencies.’ It reckons that the Administrative State ‘now creates, enforces and adjudicates hundreds of thousands of regulations governing daily activities in our lives.’ It’s nice to see that the long march back to the Constitution has begun.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 43 significant regulatory actions. 
  • No rules approved without changes; recommended changes to 38 proposed rules; five rules withdrawn from the review process.
  • As of August 2, 2021, OIRA’s website listed 65 regulatory actions under review.
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Checks and Balances – Federal Housing Finance Agency structure ruled unconstitutional

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

This edition: 

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

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

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

In Washington

SCOTUS finds Federal Housing Finance Agency structure unconstitutional

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

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

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

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

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

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

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

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

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

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

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

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Biden administration releases first Unified Agenda

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

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

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

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

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In the states

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

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

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

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

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Maryland agency responsibilities shift to ALJs

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

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

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

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

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Can agencies have more power than the president?

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

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

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

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

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

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

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

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

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

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

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

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

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

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

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

The case was consolidated with Yellen v. Collins.

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

Additional reading:

Link to the U.S. Supreme Court decision:



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

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

This edition: 

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

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

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

In Washington

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

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

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

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

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

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

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

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Labor Department rescinds Trump-era gig worker rule

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

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

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

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

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

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D.C. Circuit considers rulemaking transparency challenge

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

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

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

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

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

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In the states

Idaho lawmakers fail to reauthorize administrative rules

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

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

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

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

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

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Idaho governor rescinds lieutenant governor’s order banning mask mandates

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

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

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

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

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

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

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

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State lawmakers address emergency election powers

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

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

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

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

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 35 significant regulatory actions. 
  • Five rules approved without changes; recommended changes to 30 proposed rules.
  • As of June 1, 2021, OIRA’s website listed 56 regulatory actions under review.
  • Want to go deeper? 


Unanimous U.S. Supreme Court rules in favor of pre-enforcement challenge against IRS regulation

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

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

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

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

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

 To learn more about the case, see here: 

CIC Services v. Internal Revenue Service

Additional reading:

Link to the U.S. Supreme Court opinion:

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



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

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

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

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

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

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

Additional reading:

Link to the U.S. Supreme Court order:

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

Link to the docket for _AMA v. Becerra_:

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

Link to the letter from the Biden administration:

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