Tagadministrative state

Federal agencies roll out guidance document websites

Federal agencies have taken steps to increase public access to agency guidance documents after the February 28 deadline passed for agencies to comply with Executive Order 13891, which required agencies to make guidance documents publicly available through an online portal.

Guidance documents—non-binding agency publications that explain, interpret, or advise on rules, laws, and procedures—have been historically difficult for regulated parties to locate and follow. Guidance can take many forms, ranging from memoranda and notices to news releases and blog posts, which can compound problems of clarity and access. President Donald Trump (R) aimed to facilitate public access to agency guidance documents by issuing Executive Order 13891 in October 2019. The executive order sought in part to increase regulatory transparency by requiring federal departments and agencies to make guidance documents publicly available online.

Though some agencies have yet to comply with the executive order (there is no penalty for noncompliance), a number of major federal agencies, including the Environmental Protection Agency, the Social Security Administration, and the Small Business Administration, have published new guidance document portals on their websites.

“EPA has followed through on President Trump’s direction to streamline and improve the transparency of regulatory guidance issued by the agency,” said EPA Administrator Andrew Wheeler in a press release. “This new online database is a major milestone in government transparency. Never before has the American public had access to all of the Agency’s guidance documents.”

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Justice Gorsuch argues against deference in criminal cases

Justice Gorsuch released a statement critical of applying Chevron deference to laws involving criminal penalties following the U.S. Supreme Court’s March 2 decision not to hear Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. The case challenged the Trump administration’s decision to outlaw bump stocks through regulation.

Under Chevron deference, federal courts must defer to a federal agency’s interpretation of an ambiguous or unclear statute. Gorsuch argued that Chevron “has nothing to say about the proper interpretation of the law” at issue in the bump stock case because “whatever else one thinks about Chevron, it has no role to play when liberty is at stake.”

In 2018, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a rule redefining “machine gun” to include bump stocks. The rule expanded the definition of “machine gun” in the Gun Control Act and National Firearms Act to include devices that allow semi-automatic firearms to shoot more than once with a single pull of the trigger using recoil energy to keep firing. Under the rule, owners of bump stock devices must destroy or surrender them or face federal prison time.

Gorsuch agreed with the court’s decision not to take the case, but said that “waiting should not be mistaken for lack of concern.”

To learn more about the bump stock rule change, click here.

To read Gorsuch’s statement, click here.

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Fifth Circuit upholds limits on presidential removal power over CFPB head

A panel of judges on the U.S. Court of Appeals for the Fifth Circuit decided 2-1 to uphold the structure of the Consumer Financial Protection Bureau (CFPB). The court’s March 3 opinion said that the legal restrictions on the president’s authority to remove the head of the agency were “valid and constitutional.”

Judge Stephen Higginson, an Obama appointee, delivered the opinion of the court, saying that “neither the text of the Constitution nor the Supreme Court’s previous decisions” support the argument that the CFPB has an unconstitutional structure.

Judge Patrick Higginbotham, a Reagan appointee, wrote a concurring opinion joined by Higginson, arguing that the president may still exert authority over the CFPB through the Financial Stability Oversight Council, which can veto CFPB rules. He said that the U.S. Supreme Court has approved presidential removal power restrictions similar to those protecting the head of the CFPB.

Judge Jerry Edwin Smith, a Reagan appointee, filed a dissenting opinion, arguing that recent Fifth Circuit precedent suggested that the structure of the CFPB was unconstitutional.

The appointment and removal power refers to the authority of an executive to appoint and remove officials in the various branches. The Appointments Clause of the United States Constitution vests the president with the authority to appoint officers of the United States, including federal judges, ambassadors, and Cabinet-level department heads. The president has the authority to remove his appointees from office, but the heads of independent federal agencies can only be removed for cause.

The Fifth Circuit published its decision on the same day the U.S. Supreme Court heard oral argument in another case challenging the structure of the CFPB,  Seila Law v. Consumer Financial Protection Bureau. A U.S. Supreme Court decision that the U.S. Constitution forbids protecting the director of the CFPB from presidential removal might give the president more control of other leaders of independent administrative agencies. Also, CFPB decisions made under a director with removal protections might become invalid following the ruling.

Click here to read the Fifth Circuit decision and here to learn more about Seila Law v. Consumer Financial Protection Bureau.

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Virginians to decide constitutional amendment transferring redistricting powers from legislature to commission

On March 5, the Virginia House of Delegates voted 54-46 to approve a resolution placing a redistricting-related constitutional amendment on the ballot for November 3, 2020. The ballot measure would transfer the power to draw the state’s congressional and legislative districts from the state legislature to a 16-member redistricting commission composed of eight state legislators and eight citizens.

In Virginia, a joint resolution for a constitutional amendment needs to be passed in two successive sessions of the Virginia General Assembly. In 2019, the Republican-controlled House and Senate passed a resolution. Democrats won control of both legislative chambers in November 2019. In 2020, the Democratic-controlled Senate passed the resolution 38-2. The proposal received more opposition in the state House, where 46 Democrats opposed it. Nine House Democrats and all 45 Republicans voted to place the constitutional amendment on this year’s ballot. Before the final vote on March 5, Del. Marcus Simon (D-53) offered a substitute for SJR 18. The substitute resolution was rejected 47-53. Substitute SJR 18 would have created a redistricting commission composed of 11 commissioners “who are, as a whole, representative of the racial, gender, political, and geographic diversity of the Commonwealth.” Approval of Substitute SJR 18 would have restarted the process of amending the Virginia Constitution, meaning an amendment could appear on the 2022 ballot at the earliest.

Under the constitutional amendment that voters will decide in November, the commission would draw the maps, and the General Assembly would vote to pass or reject the maps. The General Assembly would be prohibited from amending the maps. If the General Assembly rejected a map, the redistricting commission would design a new map. If the map was rejected again, the Virginia Supreme Court would establish the districts.

Maps would also require approval by 12 of 16 (75 percent) commissioners, including six of eight legislators and six of eight citizens. Leaders of the legislature’s two-largest political parties would select members to serve on the commission. Therefore, based on the current membership, the commission’s legislative members would include two Senate Democrats, two Senate Republicans, two House Democrats, and two House Republicans. The commission’s eight citizen members would be recommended by legislative leaders and selected by a committee of five retired circuit court judges.

The constitutional amendment is the first ballot measure certified for 2020 that is related to redistricting. Measures could also be on the ballot in Arkansas, Missouri, Nebraska, Nevada, Oklahoma, and Oregon. In 2018, five states—Colorado, Michigan, Missouri, Ohio, and Utah—voted on initiatives to change redistricting procedures or establish redistricting commissions, and all of them were approved by voters.

With the Virginia General Assembly adjourning on March 8, no additional constitutional amendments can be referred to the 2020 general election ballot unless a special session is held. Besides the redistricting amendment, voters will also decide an amendment that would create a property tax exemption on vehicles for veterans.

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Federal Register weekly update; lowest weekly page total since first week of January

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

From March 2 to March 6, the Federal Register grew by 1,268 pages for a year-to-date total of 13,474 pages. Over the same period in 2019 and 2018, the Federal Register reached 8,588 pages and 10,552 pages, respectively. As of March 6, the 2020 total led the 2019 total by 4,886 pages and the 2018 total by 2,922 pages.

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

This week’s Federal Register featured the following 641 documents:
• 420 notices
• 11 presidential documents
• 30 proposed rules
• 59 final rules

Two proposed rules were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued nine significant proposed rules and 16 significant final rules as of March 6.

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.

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OIRA reviewed 44 significant rules in February

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 44 significant regulatory actions issued by federal agencies in February 2020. The agency approved one rule without changes and approved the intent of 36 rules while recommending changes to their content. Agencies withdrew seven rules from the review process.

OIRA reviewed 23 significant regulatory actions in February 2019, 20 significant regulatory actions in February 2018, and three significant regulatory actions in January 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 40 significant regulatory actions each February.

OIRA has reviewed a total of 76 significant rules so far in 2020. The agency reviewed a total of 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of March 2, 2020, OIRA’s website listed 114 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.

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Federal Register weekly update; 2020 page total exceeds 10,000 pages

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

From February 17 to February 21, the Federal Register grew by 1,552 pages for a year-to-date total of 10,268 pages. Over the same period in 2019 and 2018, the _Federal Register_ reached 5,950 pages and 8,164 pages, respectively. As of February 21, the 2020 total led the 2019 total by 4,318 pages and the 2018 total by 2,104 pages.

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

This week’s Federal Register featured the following 539 documents:

  • 358 notices
  • three presidential documents
  • 41 proposed rules
  • 53 final rules

Two final rules and two proposed rules were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued five significant proposed rules and 13 significant final rules as of February 21.

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

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

Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2016.


Georgia lawmakers vote to limit judicial deference

The Georgia House of Representatives voted 158-8 on Tuesday to approve legislation that would end the practice of judicial deference to tax regulations in the state. House Bill 538—sponsored by state Representatives Todd Jones (R), Mitchell Scoggins (R), and Brett Harrell (R)—would require the Georgia Tax Tribunal to decide all questions of law without deference to the regulations or policy interpretations of the state’s Department of Revenue.

Judicial deference is a principle of administrative law that instructs federal courts to defer to administrative agencies’ interpretations of ambiguous statutes or regulations. State-level approaches to judicial deference vary significantly, and state courts are not obliged to defer to state-level administrative agencies or adopt federal deference doctrines. Thirty-six states, however, have implemented forms of judicial deference to state administrative agencies similar to the federal deference doctrines.

If the legislation becomes law, Georgia would join a group of other states that have addressed judicial deference practices in recent years. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to prohibit judicial deference to state agencies.

Ballotpedia tracks state responses to judicial deference as part of The Administrative State Project.

Click here to find out more.

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Federal Register weekly update; 11 significant final rules published so far in 2020

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 February 10 to February 14, the Federal Register grew by 1,526 pages for a year-to-date total of 8,716 pages. Over the same period in 2019 and 2018, the Federal Register reached 4,676 pages and 7,106 pages, respectively. As of February 14, the 2020 total led the 2019 total by 4,040 pages and the 2018 total by 1,610 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016. After President Donald Trump (R) took office in 2017, the Federal Register’s year-end page total decreased by 36.1% for a total of 61,950 pages. The page total has since increased by 9.7% in 2018 for a total of 68,082 pages and by 6.2% in 2019 for a total of 72,564 pages. It is common for the Federal Register’s annual page total to decrease during a president’s first year in office and fluctuate in subsequent years. For example, President Barack Obama’s (D) first-year page total decreased by 13.6% from the previous year, President George W. Bush’s (R) first-year page total decreased by 13.2%, and President Ronald Reagan’s (R) first-year page total decreased by 21.2%.

This week’s Federal Register featured the following 539 documents:
  • 414 notices
  • Two presidential documents
  • 65 proposed rules
  • 66 final rules

Two final rules were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Trump administration in 2020 has issued three significant proposed rules and 11 significant final rules as of February 14.

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

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

Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2016.


Virginia pilot program aims to reduce regulations

The Virginia General Assembly created a regulatory reduction pilot program in 2018 that aims to cut regulations in two state agencies by 25% before July 1, 2021. Both agencies cut regulations faster than planned, according to a progress report published in October 2019.

Under the program, the Virginia Department of Professional and Occupational Regulation (DPOR) and the Virginia Department of Criminal Justice Services (DCJS) must reduce regulatory requirements and compliance costs by 25% by the 2021 deadline. Both agencies were ahead of the first year goal of eliminating 7.5% of their regulations. The DPOR and DCJS had cut regulations by 9.78% and 10.14%, respectively, as of October 1, 2019.

If the pilot agencies meet the 2021 deadline, the Virginia Secretary of Finance must write a report on the feasibility of adopting a 2-for-1 regulatory budget in the state. Under that budget, state agencies would have to streamline or repeal two existing regulations for every new one they create. President Donald Trump (R) issued a similar executive order at the federal level in January 2017. Executive Order 13771 included a requirement that agencies eliminate two old regulations for each new regulation issued.

Virginia Delegate Michael Webert (R) and Virginia Senator Amanda Chase (R) sponsored the legislation creating the program and Governor Ralph Northam (D) approved it on March 23, 2018.

To learn more about the Virginia General Assembly or other state approaches to address the administrative state, see here:
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Virginia Administrative Procedure Act

Click here to read the text of the law establishing the pilot program.
Click here to read the text of the 2019 progress report.