Tagadministrative state

Checks and Balances: Chevron deference at stake

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 administrative pushback against vaccine mandates; developments in a case before the U.S. Supreme Court (SCOTUS) that could limit future applications of Chevron deference; a proposal that would institute removal protections for the director of the Office of Personnel Management (OPM); and the Biden administration’s recertification of the union representing immigration judges. 

At the state level, we take a look at an effort by Minnesota state senators to limit executive branch emergency powers; a struggle between Florida and the U.S. Department of Education over funding for school districts with mask mandates; and an executive order for the Alaska governor aiming to defend the state from what he considers to be federal overreach.

We also highlight disparate views across the media landscape regarding SCOTUS’ pending ruling on Chevron deference. As always, we wrap up with our Regulatory Tally, which features information about the 164 proposed rules and 259 final rules added to the Federal Register in November and OIRA’s regulatory review activity.

In Washington

Responses to Biden administration’s vaccine mandates 

What’s the story? 

Judges and lawmakers in the last month have acted in response to the Biden administration’s coronavirus (COVID-19) vaccination requirements for healthcare workers, federal contractors, and certain private businesses.

Healthcare workers: Judge Terry Doughty of the U.S District Court for the Western District of Louisiana on November 30 blocked nationwide enforcement of the Centers for Medicare and Medicaid’s (CMS) vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds, arguing that the mandate exceeds the agency’s authority. Judge Matthew Schelp of the United States District Court for the Eastern District of Missouri had blocked enforcement of the requirement in 10 states the previous day.

Federal contractors: Judge R. Stan Baker of the U.S. District Court for the Southern District of Georgia on December 7 issued a nationwide injunction blocking enforcement of the Biden administration’s vaccine requirement for federal contractors, arguing in part that the requirement constituted a matter of “vast economic and political significance.” Judge Gregory F. Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky on November 30 had blocked the requirement for federal contractors in Kentucky, Ohio, and Tennessee.

Private businesses: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on December 17 lifted a stay blocking enforcement of the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees, claiming in part that the mandate fits within OSHA’s delegated authority. The U.S. Court of Appeals for the Fifth Circuit in November had issued a nationwide injunction blocking the requirement, arguing in part that the requirement exceeds OSHA’s authority. Challengers appealed the Sixth Circuit’s decision to the U.S. Supreme Court.

U.S. Senators Joe Manchin (D-W.Va.) and John Tester (D-Mont.) on December 8 joined Republican colleagues in a 52-48 vote supporting a resolution of disapproval under the Congressional Review Act (CRA) that aims to rescind the Occupational Safety and Health Administration’s (OSHA) regulation implementing a vaccine requirement for workers at businesses with 100 or more employees. The vote advanced the resolution to the Democrat-controlled U.S. House of Representatives for consideration. 

White House Press Secretary Jen Psaki stated that President Joe Biden (D) would veto the CRA resolution if it passed the House and that the U.S. Department of Justice would defend the vaccine requirements in court.

Want to go deeper?

SCOTUS hears argument in case that could limit Chevron deference

What’s the story? 

The U.S. Supreme Court on November 30 heard oral argument in American Hospital Association v. Becerra, a case that could affect the scope of agency powers by limiting future applications of Chevron deference.

The case challenges a 2018 U.S. Department of Health and Human Services (HHS) decision to reduce the reimbursement rate that HHS pays certain hospitals for treating Medicare patients. A hospital coalition filed suit, arguing that HHS’ decision in the absence of adequate supporting data violated the Medicare statute. The case questions whether courts should exercise Chevron deference and defer to HHS’ formulation of Medicare drug reimbursement rates according to the agency’s statutory interpretation.

The court “appeared receptive to the claim that Medicare overstepped its authority when it cut the amount that it paid certain hospitals for drugs they dispensed in their outpatient departments,” observed University of Michigan law professor Nicholas Bagley in an analysis for SCOTUSblog. “None of the justices voiced sympathy with the government’s argument that Congress had precluded judicial review of the question,” Bagley continued, adding that “several of the conservative justices toyed with the possibility of abandoning Chevron deference.”

Want to go deeper?

Proposal for OPM director removal protections advances to House floor

What’s the story?

The House Oversight and Reform Committee on December 2 voted 25-14 to advance the Strengthening the Office of Personnel Management (OPM) Act—legislation that would enact removal protections for the OPM director in an effort to mitigate political interference with the agency. Opponents of the bill argued that removal protections would effectively insulate the OPM director from political accountability.

The bipartisan legislation would (1) require the president to nominate a nonpartisan OPM director with experience in human capital management, (2) instruct the president to provide good cause before firing the director, and (3) name the director as the president’s principal advisor on federal workforce issues, among other provisions.

The bill’s cosponsors, Representatives Gerry Connolly (D-Va.), Carolyn Maloney (D-N.Y.), and Brian Fitzpatrick (R-Penn.), drew the proposals from a March report on OPM by the National Academy of Public Administration, a congressionally chartered nonprofit organization. Congress in December 2019 directed NAPA to study OPM after pausing consideration of President Donald Trump’s (R) proposal to merge the agency’s responsibilities into the General Services Administration and the Executive Office of the President.

“We successfully stopped the previous administration from abolishing OPM,” said Connolly in a statement upon introducing the bill, “now we have a responsibility to rebuild and modernize the agency.”

Opponents of the legislation argued in committee that the provisions would remove the OPM director from direct presidential oversight. “Instead of providing needed reform measures, the Strengthening the OPM Act fosters more unaccountable bureaucracy,” said Rep. James Comer (R-Ky.). “It requires a non-partisan appointment of the OPM director. That severs the OPM director from political accountability.” 

Want to go deeper?

Biden administration recertifies immigration judges’ union 

What’s the story? 

The Biden administration on December 7 reinstated the National Association of Immigration Judges (NAIJ) as the collective bargaining unit of the U.S. Department of Justice’s (DOJ) immigration judges (IJs), reversing the Trump administration’s decision to decertify the union.

The Federal Labor Relations Authority (FLRA) ordered the union’s decertification in November 2020, arguing that IJs—a type of federal administrative adjudicator—constitute management officials for collective bargaining purposes. The union entered into a subsequent period of administrative uncertainty following procedural disagreements between NAIJ and DOJ over the union’s decertification status.

DOJ in June sought permission from FLRA to rescind the Trump administration’s decertification order. In a December 7 settlement agreement between NAIJ and DOJ’s Executive Office of Immigration Review (EOIR), the agency agreed to once again recognize NAIJ as the IJs’ collective bargaining unit. 

Want to go deeper?

In the states

Minnesota legislators attempt to limit governor’s emergency powers through senate confirmation

What’s the story? 

Republican state senators in Minnesota are attempting to use their confirmation authority to limit the governor’s emergency powers by tying the confirmation of state Department of Health Commissioner Jan Malcolm to a prohibition on state-issued coronavirus (COVID-19) vaccine requirements.

The Minnesota Constitution authorizes the state Senate to confirm the governor’s appointment of agency commissioners. Governor Tim Walz (D) took office in January 2019, but lawmakers have delayed confirmation of all but three of his commissioner appointments (though most of Walz’s appointees have been serving in their pending roles). Republican state senators in 2020 rejected two of Walz’s appointments due to regulatory disagreements, including agency responses to the coronavirus (COVID-19) pandemic.

Democratic state legislators scuttled plans for a fall special session after Republican members threatened to reject Malcolm’s appointment unless Democrats agreed to prohibit state-issued vaccine mandates. Republican state senators, including Senate Majority Leader Jeremy Miller, expressed concerns about what they consider to be Malcolm’s lack of receptivity to legislative input on the department’s pandemic responses and her potential support for vaccine requirements. State Senator Jim Abeler (R) further claimed that, in his view, Malcolm hasn’t sufficiently warned Minnesotans about potential vaccine side effects.

Democratic House Speaker Melissa Hortman argued that Republicans are using Malcolm’s appointment as a bargaining chip to limit the executive branch’s emergency powers. “The Republicans in the Minnesota Senate have gone to an extreme in the way they are using commissioner confirmations,” Hortman told the Minneapolis Star Tribune.

Walz had not called a special session as of December 15. In the absence of a special session, Malcolm’s appointment would go before the state Senate when the regular legislative session convenes in January.

Want to go deeper?

Florida, feds square off over funding school districts with mask mandates

What’s the story? 

The Florida State Board of Education on November 16 authorized Education Commissioner Richard Corcoran to challenge the U.S. Department of Education’s (ED) cease-and-desist order aimed at preventing the state’s withdrawal of funds from school districts with mask mandates. 

The board on August 17 voted to withhold money from the school districts in Alachua and Broward counties in response to the districts’ continued mask mandates despite a prohibition on such mandates by the state Department of Public Health. The withheld funds aimed to align with the monthly salaries of school board members. ED responded by starting a federal grant program to offset the state’s penalties, but Florida countered by withholding state funds equal to the federal grants. A November 5 ruling from a state administrative law judge upholding the health department’s order later brought the school districts into compliance. 

ED on October 28 filed a cease-and-desist order with its Division of Administrative Law Judges, arguing that Florida had violated federal law by reducing state funding to districts based on the receipt of federal funds. Corcoran argued that the federal grant program violated state sovereignty and declared his intent to “vigorously defend the state’s authority to control its educational system.”

Want to go deeper?

Alaska governor issues order aiming to defend state sovereignty 

What’s the story? 

Alaska Governor Mike Dunleavy (R) on November 2 issued an executive order aiming to defend the state’s sovereignty against what Dunleavy considers to be the Biden administration’s overreach in response to the coronavirus (COVID-19) pandemic.

“The Biden Administration has imposed a long list of encroachments against the State of Alaska in attempts to control the health and welfare of Alaskans,” said Dunleavy in a statement. “The recent actions or attempts are threatening the State’s sovereign authority under the 10th Amendment.”

Dunleavy’s order cites Biden administration proposals requiring financial institutions to provide information to the Internal Revenue Service regarding certain private bank accounts, instructing federal law enforcement to monitor parents opposed to school district policies as domestic terrorists, and mandating coronavirus vaccines for federal contractors and certain private businesses.

The order instructs the state attorney general to defend Alaska against such policies in court and prohibits state agencies from furthering “any action by a federal agency that infringes on the constitutional rights of Alaskans.”

Want to go deeper?

____________________________________________________________________________

Opposing views on the future of Chevron deference

The U.S. Supreme Court is poised to issue a ruling in American Hospital Association v. Becerra that could affect future applications of Chevron deference. Media outlets have taken different views of the forthcoming decision, both supporting and opposing a ruling that could potentially limit agency authority.

Professors Richard A. Epstein and Mario Loyola contributed an opinion piece to The Wall Street Journal arguing that a potential ruling narrowing applications of Chevron deference would serve to rein in agency authority. “Chipping away at Chevron won’t by itself solve the larger problem in the rise of the administrative state,” claimed the authors. “But curbing abuses in agency rulemaking by returning to the Administrative Procedure Act would be a good start.”

Staff writer Matt Ford of The New Republic, on the other hand, argued that such a ruling would empower judges to substitute their reasoning for that of neutral policy experts. “That would be a massive shift in the separation of powers—maybe back to Congress and the American people themselves, as Gorsuch and the other justices have suggested, but certainly towards the unelected judges who would be freed from the burden of deference to, well, anyone,” wrote Ford.

Want to go deeper

  • Click here to read “The Supreme Court’s Chance to Rein In the Regulatory State” in The Wall Street Journal.
  • Click here to read “The Supreme Court Is Poised to Sabotage the Administrative State” in The New Republic.

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 41 significant regulatory actions. 
  • Three rules approved without changes; recommended changes to 37 proposed rules; one rule withdrawn from the review process.
  • As of December 1, 2021, OIRA’s website listed 75 regulatory actions under review.
  • Want to go deeper? 


Congressional resolution would block OSHA COVID-19 vaccine mandate

Companion resolutions, introduced in both houses of Congress under the Congressional Review Act (CRA), aim to block a mandate issued by the Occupational Safety and Health Administration that directs large employers to require employees to get vaccinated against COVID-19 or to submit to regular testing and face covering.

Representative Fred Keller (R-Penn.) sponsored the resolution in the U.S. House on Nov. 17. The House resolution had 206 cosponsors, all from the Republican Party, as of Dec. 3. 

On the other side of Capitol Hill, Senator Mike Braun (R-Ind.) introduced an identical resolution, also on Nov. 17. The Senate resolution had 50 cosponsors, including all of the senators from the Republican Party and Sen. Joe Manchin (D-W.Va.), as of Dec. 3.

The Congressional Review Act 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. Both houses of Congress have to pass a resolution disapproving of the OSHA mandate and President Biden would then have to sign that resolution into law to block the mandate.

Since the law’s creation in 1996, Congress has used the CRA to repeal 20 rules published in the Federal Register. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. 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 in total using the CRA during the Trump administration and repealed 3 more at the beginning of the Biden administration.

Additional reading:



Federal Register weekly update: 250 significant documents added so far in 2021

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, accounting for both regulatory and deregulatory actions.

From Nov. 29 through Dec. 3, the Federal Register grew by 1,226 pages for a year-to-date total of 68,874 pages.

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

This week’s Federal Register featured the following 458 documents:

  1. 357 notices
  2. Five presidential documents
  3. 29 proposed rules
  4. 67 final rules

Three proposed rules, including a proposal to revise the methodology to determine Adverse Effect Wage Rates for temporary employment of workers in H-2A nonimmigrant status from the Employment and Training Administration, and five final rules, including an amendment to regulations governing conditions for the importation of sheep, goats, and other ruminants from the Animal and Plant Health Inspection Service 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 104 significant proposed rules, 132 significant final rules, and four significant notices as of Dec. 3.

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.

Additional reading:



Checks and Balances:

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 three administrative law cases before the U.S. Supreme Court that could affect the scope of agency powers; the U.S. Department of Health and Human Services’ (HHS) move to roll back Trump-era rulemakings on guidance and regulatory review; and new federal legislation that seeks to relocate all federal agencies outside of Washington, D.C. 

At the state level, we take a look at state efforts to challenge the Biden administration’s vaccine requirements for certain private businesses, federal contractors, and healthcare workers; the North Carolina governor’s veto of a bill that would have limited his emergency powers; and state lawsuits challenging a provision of the American Rescue Plan and Recovery Act (ARPA) that states argue unconstitutionally seizes state taxing authority.

We also highlight a recent decision from the United States Court of Appeals for the Fifth Circuit that applies the five-part test for Auer deference established in Kisor v. Wilkie. As always, we wrap up with our Regulatory Tally, which features information about the 165 proposed rules and 244 final rules added to the Federal Register in October and OIRA’s regulatory review activity.

In Washington

SCOTUS cases challenge breadth of agency powers

What’s the story? 

Rulings in three cases on the U.S. Supreme Court’s docket for the October 2021 term could have broad effects on the scope of agency powers. The cases challenge applications of judicial deference, agency authority to interpret statutes, and the delegation of congressional authority to administrative agencies.

The first case, American Hospital Association v. Becerra, could limit future applications of Chevron deference—a doctrine that compels courts to defer to reasonable agency interpretations of unclear statutes. The case questions whether courts should defer to the U.S. Department of Health and Human Services’ (HHS) formulation of Medicare drug reimbursement rates in the absence of adequate supporting data. The court heard oral argument in the case on November 3.

Another case concerning HHS’ Medicare formulations, Becerra v. Empire Health Foundation, questions whether HHS had the authority to change its interpretation of the hospital reimbursement formula when a federal court had already ruled that the statute was clear regarding how the agency should calculate those payments. Oral argument in the case is scheduled for November 29.

The final case, West Virginia v. Environmental Protection Agency, consolidated challenges from states and coal companies questioning whether the Clean Air Act gives the EPA the authority to regulate greenhouse gases. The case could clarify the scope of Congress’ authority to delegate regulatory authority to administrative agencies. Oral argument in the case was scheduled for November 16.

Want to go deeper?

HHS rolls back Trump-era rulemakings on guidance and regulatory review

What’s the story? 

The U.S. Department of Health and Human Services (HHS) last month moved to rescind two Trump-era regulations aimed at reviewing agency regulations and curbing agency enforcement of non-binding guidance.

HHS on October 19 announced its intent to rescind rules issued under the Trump administration that implemented President Trump’s (R) Executive Order 13891, which aimed to prohibit federal administrative agencies from issuing binding guidance documents. Trump administration officials argued that the rule would prevent agencies from abusing guidance documents, which do not carry the force of law, to circumvent the rulemaking process. The Biden administration argued that the rule would make it harder for HHS to run the agency’s healthcare programs effectively.

The following week, HHS issued a proposed rule aiming to withdraw a Trump administration regulation requiring the agency to implement a retrospective review process for all agency rules. The review process, sometimes referred to as a sunset review, would have set a 10-year expiration date for each agency rule, with certain exceptions, unless the agency conducts a retrospective review to keep the rule in effect. The Trump administration argued that the review process would ensure that HHS regulations were up-to-date and effective.

Want to go deeper?

Drain the Swamp Act proposes relocating all federal agencies

What’s the story? 

U.S. Representative Warren Davidson (R-Ohio) on October 26 introduced the Drain the Swamp Act—legislation that proposes relocating all federal agency headquarters outside of Washington, D.C., by September 2026 in order to incorporate more regional perspectives into the federal workforce.

“The Drain the Swamp Act aims to diversify the federal workforce and ensure that a broader cross section of America’s population participates in federal policymaking,” Davidson said. “It would also reduce the burden on D.C. infrastructure and help development in underutilized properties across the country.”

Trump administration officials moved the headquarters of two sub-agencies of the Agriculture Department to Kansas City, Missouri, and the Bureau of Land Management to Colorado. The Biden administration later returned the BLM headquarters to Washington, D.C., while retaining a Colorado presence. 

Opponents of agency relocation proposals have argued that the moves seek to encourage the retirements or resignations of career agency staff. Supporters of the proposals contend that agency relocations would benefit agency staff by reducing their cost of living and support regional economies by investing in communities outside of the beltway.

Want to go deeper?

In the states

States push back against federal vaccine mandates

What’s the story? 

States have filed a wave of lawsuits against President Joe Biden’s (D) vaccine mandates on private businesses, federal contractors, and healthcare workers. 

27 Republican-led states as of November 11 had taken legal action to challenge the vaccine mandates for private businesses with 100 or more employees, arguing in part that the mandate exceeds the executive branch’s authority and violates the Tenth Amendment. The United States Court of Appeals for the Fifth Circuit on November 6 issued a stay to temporarily block the mandate, citing what it described as “grave statutory and constitutional issues.”

Nineteen states as of November 11 had filed lawsuits challenging the vaccine mandate for federal contractors, arguing that the mandate constitutes an overreach of federal power, violates federal procurement law, and failed to follow notice-and-comment rulemaking procedures, among other claims.

A 10-state coalition on November 10 filed a lawsuit in the United States District Court for the Eastern District of Missouri challenging Biden’s vaccine mandate for healthcare workers in facilities that receive federal funding. The states claim in part that the federal mandate unlawfully seeks to coopt state police powers.

Want to go deeper?

North Carolina governor vetoes bill limiting executive emergency powers

What’s the story? 

In the last edition of Checks and Balances, we reviewed North Carolina Governor Roy Cooper’s (D) veto of legislation that would have transferred executive powers over certain agency lawsuit settlements to the state legislature. Cooper exercised his veto authority again this month in another power struggle with the state legislature over the extent of the governor’s emergency powers.

Cooper on November 1 vetoed the Emergency Powers Accountability Act, which had passed the state legislature with majority Republican support. The bill would have required the governor to gain approval from the Council of State—a constitutional body of 10 state elected officials—before issuing emergency declarations lasting longer than seven days. Emergency declarations over 45 days would have required state legislative approval.

“Critical decisions about stopping deadly diseases, or responding to any other emergency, should stay with experts in public health and safety, not a committee of partisan politicians,” said Cooper in his veto statement.

State Representative Keith Kidwell (R), the bill’s sponsor, argued that Cooper’s veto “further shows the dangers of when power is centralized in the hands of one person.”

Want to go deeper?

States accuse feds of unconstitutional taxing power grab 

What’s the story? 

A case before the U.S. District Court for the Northern District of Texas questions whether a provision of the American Rescue Plan and Recovery Act of 2021 (APRA) that prohibits states from redirecting ARPA funds to reduce state taxes violates federalism principles and infringes on state sovereignty. In State of Texas, State of Louisiana, and State of Mississippi v. Yellen, et al., the plaintiff states claim that the ARPA provision, known as the Tax Cut Ban, unconstitutionally seizes state taxing authority.

The Tax Cut Ban prevents states from applying ARPA funds to “either directly or indirectly offset a reduction in the net tax revenue.” In addition to raising concerns about state sovereignty, the plaintiffs further argue that the language of the Tax Cut Ban is ambiguous and that any resulting regulations issued by the U.S. Department of the Treasury lack clear statutory parameters in violation of the nondelegation doctrine.

Two other court rulings have enjoined enforcement of the Tax Cut Ban in Ohio, Tennessee, and Kentucky. U.S. District Court Judge Gregory Van Tatenhove in June found in Commonwealth of Kentucky, et al. v. Yellen et al., that ARPA’s Tax Cut Ban provision constituted an unconstitutionally “coercive grant of federal money.” U.S. District Court Judge Douglas Cole in July held in ​​State of Ohio v. United States Department of the Treasury, et al. that the statutory language of the Tax Cut Ban was too ambiguous for Spending Clause legislation and that subsequent regulations could not remedy the ambiguity. 

Want to go deeper?

____________________________________________________________________________

Kisor’s five-part test, applied

The United States Court of Appeals for the Fifth Circuit in Johnson v. BOKF National Association recently applied the five-part test for granting Auer deference established by the U.S. Supreme Court in the 2019 case Kisor v. Wilkie. The court’s September opinion provided the following reasoning according to the five-part framework:

Step 1: Are the regulations in question ambiguous?

“[W]e conclude that the regulations at issue here, §§ 7.4001(a) & 7.4002—which define ‘interest’ and non-interest charges under the NBA, respectively—are genuinely ambiguous.”

Step 2: Is the agency’s regulatory interpretation reasonable?

“We conclude that OCC’s determination … is reasonable, and indeed, Johnson does not argue otherwise. After all, OCC’s position is consonant with the majority view on the subject based on the public comment submissions.”

Step 3: Is the agency interpretation of a regulation is an authoritative or official position of the agency?

“Interpretive Letter 1082 appears to be an authoritative statement rather than a ‘m[e]re ad hoc statement not reflecting the agency’s views.’”

Step 4: Does the question fall within the agency’s expertise?

“OCC’s interpretation of §§ 7.4001(a) and 7.4002 also falls squarely within the agency’s substantive expertise. As noted above, OCC is administering the NBA and regulations promulgated thereunder.”

Step 5: Is the agency’s interpretation a fair and considered judgment?

“Interpretive Letter 1082 reflects OCC’s ‘fair and considered judgment.’ Kisor, 139 S. Ct. at 2417. There is no indication that the interpretive letter was merely a ‘convenient litigating position’ or ‘post hoc rationalization advanced to defend past agency action against attack.’”

The court ultimately concluded that Auer deference was warranted in the case because the challenged agency interpretation represented a “reasonable interpretation of genuinely ambiguous regulations that it is charged with administering.”

Want to go deeper

Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 42 significant regulatory actions. 
  • Two rules approved without changes; recommended changes to 40 proposed rules; no rules withdrawn from the review process.
  • As of November 1, 2021, OIRA’s website listed 81 regulatory actions under review.
  • Want to go deeper? 


Federal Register weekly update: More than 500 total documents issued this week

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, accounting for both regulatory and deregulatory actions.

From Oct. 18 through Oct. 22, the Federal Register grew by 1,238 pages for a year-to-date total of 58,762 pages.

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

This week’s Federal Register featured the following 448 documents:

  • 464 notices
  • Eight presidential documents
  • 36 proposed rules
  • 53 final rules

Seven proposed rules, including a revision to time credits procedures authorized by the First Step Act of 2018 (FSA) from the Prisons Bureau, and five final rules, including standards of conduct from the Farm Credit Administration, 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 79 significant proposed rules, 102 significant final rules, and one significant notice as of October 22.

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

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017. 

Additional reading:



OIRA reviewed 38 significant rules in September

Graphic with the five pillars of the

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

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, 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. 

Additional reading:



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.).

Want to go deeper?

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.

Want to go deeper?

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.”

Want to go deeper?

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. 

Want to go deeper?

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.

Want to go deeper?

____________________________________________________________________________

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.”

Want to go deeper

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.
  • Want to go deeper? 


Federal Register weekly update: 611 new documents added

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 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.

Additional reading:



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.”

Want to go deeper?

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.

Want to go deeper?

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.

Want to go deeper?

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.’”

Want to go deeper?

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.”

Want to go deeper?

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. 

Want to go deeper?

____________________________________________________________________________

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.”

Want to go deeper

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.
  • Want to go deeper?