Tagchecks 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.

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This edition: 

In this month’s edition of Checks and Balances, we review oral argument in a U.S. Supreme Court case challenging the scope of authority of the National Labor Relations Board; a ruling from the U.S. Court of Appeals for the Federal Circuit upholding the constitutional appointment of the Merit Systems Protection Board’s administrative law judges; a review of Congressional Review Act resolutions filed so far in the 118th Congress; and bipartisan support for legislation in the U.S. House of Representatives concerning agency rulemaking and settlement agreements.

At the state level, we take a look at an agency due process challenge before the Arizona Supreme Court; a vote by Florida lawmakers to increase the governor’s authority concerning certain immigration issues; and activity in Ohio and Nevada addressing occupational licensing.

We also highlight recent commentary from William Yeatman and Adi Dynar on what the scholars view as a vertical divide on Chevron deference in the federal courts. We wrap up with our Regulatory Tally, which features information about the 168 proposed rules and 235 final rules added to the Federal Register in January and OIRA’s regulatory review activity.

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In Washington

SCOTUS hears argument in case challenging scope of NLRB authority

What’s the story?

The U.S. Supreme Court on January 10, 2023, heard oral argument in Glacier Northwest Inc. v. International Brotherhood of Teamsters Local Union 174, a case that could limit the authority of the National Labor Relations Board (NLRB) to adjudicate certain labor-related disputes.

After a portion of its concrete supply spoiled due to a 2017 worker strike, concrete company Glacier Northwest Inc. sued the Teamsters union in Washington state court, arguing in part that the union violated state tort law by intentionally timing the strike to maximize property damage. The Washington Supreme Court dismissed the challenge, claiming that the labor dispute under the federal National Labor Relations Act (NLRA) preempts the state tort claim and, therefore, the case should be adjudicated before the NLRB. Glacier appealed the decision to the U.S. Supreme Court, arguing in part “that intentional property destruction falls outside the realm of lawful conduct protected by the NLRA,” according to the petition.

“The justices from the conservative wing remained relatively quiet, allowing the three more liberal justices to dominate the argument,” wrote SCOTUSblog analyst Sharon Block. The justices raised questions about the possibility of the NLRB and the state court making different legal conclusions, whether directing the case to the state court would make the NLRB’s adjudication procedures irrelevant, and whether Congress intended for the NLRB to have primary jurisdiction in such disputes.

A ruling in the case is expected in the summer of 2023. A separate unfair labor practices charge brought by the Teamsters against Glacier Northwest, which claims that the company brought the tort action in retaliation for the strike, is also pending before the NLRB.

Want to go deeper?

• Glacier Northwest, Inc. v. International Brotherhood of Teamsters
• National Labor Relations Board

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Federal Circuit finds MSPB judges are constitutionally appointed

What’s the story?

The U.S. Court of Appeals for the Federal Circuit on January 17, 2023, refused a rehearing in McIntosh v. Department of Defense, finalizing its November 2022 holding that the administrative law judges (ALJs) of the Merit Systems Protection Board (MSPB) are constitutionally appointed.

Former Defense Department employee Elfina McIntosh filed a complaint with the MSPB arguing that the department unlawfully fired her in 2017 in retaliation for her whistleblowing activity. The board upheld McIntosh’s removal and she appealed to the Federal Circuit. McIntosh argued in part that the MSPB ALJ assigned to her case was unconstitutionally appointed pursuant to the U.S. Supreme Court’s 2018 decision in Lucia v. Securities and Exchange Commission (SEC), which found that the SEC’s ALJs are officers of the United States and, as such, must be appointed by the president, the courts, or agency heads according to the U.S. Constitution’s appointments clause.

The three-judge panel of the Federal Circuit in November disagreed with McIntosh, finding in part that the MSPB’s ALJs do not constitute principal officers because their decisions are not final and can be reviewed by the board. Moreover, the court found that the ALJs’ protections against removal do not solely qualify them as principal officers. Since the MSPB board in March 2022 ratified all prior appointments of its ALJs, the court deemed unnecessary any further examination of whether ALJs constitute inferior officers.

McIntosh can appeal the decision to the U.S. Supreme Court but no appeal had been filed as of February 16, 2023.

Want to go deeper?

• U.S. Merit Systems Protection Board
• Administrative law judge
• Lucia v. SEC

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CRA resolutions seek to nullify environmental, fiduciary rules

What’s the story?

Federal lawmakers in the 118th Congress have filed Congressional Review Act (CRA) resolutions aimed at nullifying certain administrative rules issued under the Biden administration and preventing agencies from issuing similar rules in the future. The selection of CRA resolutions below addresses rules on topics ranging from environmental to fiduciary regulation:

• ESG in retirement plans: A bipartisan coalition of 50 U.S. senators led by U.S. Senator Mike Braun (R-Ind.) introduced a CRA resolution on February 7, 2023, aiming to nullify a rule from the U.S. Department of Labor allowing retirement plans to consider certain environmental, social, and corporate governance (ESG) factors in investment-related decisions. “President Biden is jeopardizing retirement savings for millions of Americans” by encouraging “fiduciaries to make decisions with a lower rate of return for purely ideological reasons,” argued Braun in a statement.

• Waters of the United States: U.S. Senator Shelley Moore Capito (R-W.Va.), joined by 48 Republican cosponsors, filed a CRA resolution on February 2, 2023, aiming to nullify the Environmental Protection Agency’s (EPA) revised Waters of the United States rule, which largely restores the Obama-era regulatory framework under the Clean Water Act. “With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens” on Americans, argued Capito in a statement.

• Federal funding of non-citizen voting: U.S. Senators Tom Cotton (R-Ark.) and Ted Cruz (R-Texas) filed separate CRA resolutions, joined by Republican cosponsors, that both aim to nullify a law enacted by the council of the District of Columbia (D.C.) allowing certain non-citizens to vote in local elections. “Allowing illegal immigrants to vote is an insult to every voter in America,” Cotton told Fox News Digital.

• Solar tariff waiver: U.S. Representative Bill Posey (R-Fla.), joined by a bipartisan coalition, introduced a CRA resolution on January 26, 2023, aimed at nullifying a rule from the U.S. Department of Commerce that suspends certain import tariffs on solar panels from four Southeast Asian countries that use Chinese-manufactured components. “We cannot allow foreign solar manufacturers to violate trade law, especially when it comes at the expense of American workers and businesses,” said Representative Dan Kildee (D-Mich.) in a statement.

The CRA as of February 2023 has been used to repeal 20 administrative agency rules, including one rule repealed under President George W. Bush (R), 16 rules repealed under President Donald Trump (R), and three rules repealed under President Joe Biden (D).

Want to go deeper?

• Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights rule (2023)
• Federal agency rules repealed under the Congressional Review Act
• Congressional Review Act

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House bills on agency rulemaking, settlement agreements garner bipartisan support

What’s the story?

U.S. Representative Ben Cline (R-Va.), joined by Rep. Jared Golden (D-Maine ) and five Republican cosponsors, on January 13, 2023, filed the Ensuring Accountability in Agency Rulemaking Act—a bill that aims to require that all agency rules be initiated and issued by Senate-confirmed agency officials. 

Cline states that the bill is a response to a 2019 study by the Pacific Legal Foundation (PLF) finding that the majority of rules promulgated by the Food and Drug Administration (FDA) and other agencies between 2001 and 2017 were issued by lower-level, non-Senate-confirmed officials. U.S. Supreme Court precedent in Buckley v. Valeo (1976) and Edmond v. United States (1977), according to PLF, requires that only principal agency officers can issue rules with the force and effect of law.

Cline told Fox News that he and Golden “share an outlook on overreaching executive branch authority, and I think we’re trying to solve a problem here that’s … affecting the daily lives of Americans.”

In other bipartisan action, the House on January 24, 2023, unanimously approved the Settlement Agreement Information Database (SAID) Act (H.R. 300)—legislation that would make all agency settlement agreements, such as those issued in a process known as sue and settle, publicly available. ​​Rep. Jamie Raskin (D-Md.) told Government Executive that the bill would help prevent agencies from entering into “secret sweetheart settlements with certain litigants.”

Want to go deeper?

• Rulemaking
• Sue and settle

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In the states

Arizona Supreme Court considers whether state agency procedures satisfy due process

What’s the story? 

A case pending before the Arizona Supreme Court questions whether proceedings before the Arizona Citizens Clean Election Commission satisfy due process if the commission can act as the judge in its own case.

In Legacy Foundation Action Fund v. Arizona Citizens Clean Election Commission, the state’s election commission (headed by five appointed members) alleged that certain political advertisements run by the Legacy Foundation violated state law. The foundation disagreed, arguing that the commission lacked jurisdiction in the case. A state administrative law judge (ALJ) agreed with the foundation but the commission overrode the ALJ’s ruling in favor of the commission’s view. The foundation attempted to challenge the ruling but the commission cited the principle of res judicata to argue that its decision constituted a final administrative order.

The foundation later moved to challenge the commission’s jurisdictional claim in the Arizona state courts, but lower courts dismissed the case on the grounds that the foundation had missed the deadline to appeal the commission’s final order. The Arizona Supreme Court heard oral argument in November 2022 and, according to the public policy legal organization Goldwater Institute, has since asked the group “for a new set of briefs to discuss whether the Commission’s actions in overriding the original judge and declaring itself the winner violated the basic principles of due process.”

Want to go deeper?

• Procedural due process
• Taxonomy of arguments about due process and procedural rights in the context of the administrative state
• Arizona Supreme Court

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Florida lawmakers increase governor’s immigration authority

What’s the story? 

Florida lawmakers on February 10, 2023, voted along party lines to approve special session legislation that expands executive authority in the state by granting the governor’s office the power to use taxpayer funds to transport individuals residing in the United States without legal permission. Governor Ron DeSantis (R) signed the bill into law on February 15, 2023. 

The law established the Unauthorized Alien Transport Program within the governor’s office. The program allows the governor to use taxpayer funds to transport individuals residing anywhere in the United States without legal permission—not only individuals in Florida. The law aimed to clarify gubernatorial authority in the state after DeSantis used funds in September 2022 to transport a group of such individuals located in San Antonio, Texas, to Massachusetts. The move prompted legal action questioning whether DeSantis had violated state law, which limited the governor’s authority at the time to the transportation of individuals residing in Florida without legal permission.

State Sen. Blaise Ingoglia (R), the sponsor of the bill, argued that the legislation aims to relocate such individuals “to areas that have sanctuary policies so that they can get the services that they need” and to demonstrate their belief “that the federal government needs to get their act together and solve this problem,” according to NPR.

Democratic lawmakers objected to the bill, arguing in part that immigration policy falls under the purview of the federal government. “There’s no one at this table who will say Joe Biden is doing a great job with immigration,” state Rep. Jason Pizzo (D) told CNN. “However, it’s their authority.”

Want to go deeper?

• Ron DeSantis
• Blaise Ingoglia
• Jason Pizzo

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Ohio and Nevada take action on occupational licensing

What’s the story? 

Ohio and Nevada in January took legislative and executive action, respectively, aimed at addressing state occupational licensing requirements. 

After nearly unanimous passage by the Ohio General Assembly, Governor Mike DeWine (R) signed Senate Bill 131 on January 2, 2023, requiring state licensing authorities to recognize occupational licenses issued in other states. Ohio’s action raised the total number of states that recognize out-of-state occupational licenses to 20, according to research by the Cato Institute.

Nevada Governor Joe Lombardo (R) issued two executive orders on January 12, 2023, aimed at freezing and suspending new regulations related to occupational licensing in the state. The orders demonstrate Lombardo’s “commitment to streamlining regulations and licensing processes in Nevada,” according to a statement issued by the governor’s office.

Want to go deeper?

• Arizona becomes the first state to recognize out-of-state occupational licenses
• Mike DeWine
• Joe Lombardo

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A vertical divide on Chevron deference

William Yeatman and Adi Dynar of the Pacific Legal Foundation argued in a recent post for the Yale Journal on Regulation’s Notice and Comment blog that inconsistent approaches to Chevron deference by the U.S. Department of Justice have created what the authors refer to as a vertical divide on Chevron in the federal courts:

“Irrespective of whether the Justice Department is coordinating these inconsistent Chevron claims at different stages of litigation, the important point is that the dichotomous arguments facilitate a vertical split over Chevron. In the lower courts, Justice Department lawyers abet overbroad readings of Chevron. Yet if one of these Chevron controversies comes before the Supreme Court, the Solicitor General tries to take deference off the table. That, in turn, increases the likelihood that the doctrine will remain unchecked below, where judges remain receptive to calls for generous Chevron deference. Thus, the Justice Department is driving a vertical deference divide in the federal courts.”

Want to go deeper? 

• Click here to read the full text of “The Justice Department Is Driving a Vertical Split over Chevron” by William Yeatman and Adi Dynar

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Regulatory tally

Federal Register

• The Federal Register in January reached 6,608 pages. 
• The January Federal Register included 168 proposed rules and 235 final rules. These included implementation of the HAVANA Act of 2021 and emission standards for heavy-duty engines and vehicles, among other regulations. 
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

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Office of Information and Regulatory Affairs (OIRA)

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

• Review of 39 significant regulatory actions. 
• Thirty-nine rules approved with recommended changes
• As of February 1, 2023, OIRA’s website listed 111 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More

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 decision from the U.S. Court of Appeals for the Sixth Circuit that prevents certain enforcement of a tax-related provision of the American Rescue Plan and Recovery Act of 2021 (ARPA); a Congressional Review Act resolution aimed at rescinding the Department of Labor’s new rule on the use of environmental, social, and corporate governance (ESG) principles in investment-related decisions; new guidance from the Federal Trade Commission that aims to broaden the scope of the agency’s enforcement authority; and the U.S. Senate’s unanimous support of proposed updates to plain language requirements in federal agency communications.

At the state level, we take a look at a lawsuit alleging that Massachusetts’ public health agency unconstitutionally installed a COVID-19 tracking app on mobile devices in the state.

We also highlight new scholarship that questions whether federal agency coordination with state attorneys general should constitute a fourth dimension of agency action. As always, we wrap up with our Regulatory Tally, which features information about the 164 proposed rules and 263 final rules added to the Federal Register in November and OIRA’s regulatory review activity.

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In Washington

Sixth Circuit finds constitutional flaw in ARPA Tax Cut Ban

What’s the story?

A three-judge panel of the United States Court of Appeals for the Sixth Circuit on November 18, 2022, affirmed a lower court decision that prevents the Secretary of the Treasury from enforcing a provision of the American Rescue Plan and Recovery Act of 2021 (ARPA) known as the Tax Cut Ban against the state of Tennessee. The court found the provision to be “impermissibly vague under the Spending Clause.”

The Tax Cut Ban prevents states from applying ARPA funds to “either directly or indirectly offset a reduction in the net tax revenue,” thus preventing states from redirecting ARPA funds to reduce state taxes. In Commonwealth of Kentucky and State of Tennessee v. Janet Yellen et al., the plaintiff states argue that the Tax Cut Ban infringes on state sovereignty by enabling Congress to unconstitutionally seize state taxing authority. Based on the argument that the Tax Cut Ban coerces the states into relinquishing their sovereign taxing authority, the district court granted the states a permanent injunction against enforcement of the provision in September 2021.

In response to legal challenges from several states, the Treasury Department issued an interim final rule in May 2021 aiming to clarify that states could cut certain taxes under the Tax Cut Ban and to put forth compliance procedures. While this rule made Kentucky’s challenge moot, according to the Sixth Circuit, it failed to remedy Tennessee’s argument that the Tax Cut Ban, coupled with what the state considers to be a convoluted reporting scheme mandated in the final rule, burdens the states with compliance costs. Judges Bernice Donald, John K. Bush, and John Nalbandian found in favor of Tennessee, arguing that the Tax Cut Ban’s “impermissibly vague” language violated the Spending Clause. 

The Treasury Department had not responded to the decision as of December 17, 2022. Similar legal challenges brought by Arizona, Texas, Louisiana, Mississippi, Missouri, Ohio, and West Virginia are pending in the federal courts. 

Want to go deeper?

• States accuse feds of unconstitutional taxing power grab
• United States Court of Appeals for the Sixth Circuit

DOL issues final ESG rule; lawmakers respond with CRA resolution

What’s the story?

The U.S. Department of Labor (DOL) on November 22, 2022, released a final rule allowing retirement plan fiduciaries to consider environmental, social, and corporate governance (ESG) principles when making investments for Employee Retirement Income Security Act (ERISA)-governed retirement plans and when exercising proxy voting.

The final rule aims to implement a May 2021 executive order issued by President Joe Biden (D) that directed federal agencies to consider ESG principles in retirement decision-making. The rule reverses 2020 regulations issued by the Trump administration that aimed to limit ESG investments in 401(K) retirement plans. While the new rule allows retirement plan fiduciaries to consider ESG factors in investment decisions, they must still put the financial interests of employees first, according to DOL Assistant Secretary for Employee Benefits Security Lisa M. Gomez.

“The rule announced today will make workers’ retirement savings and pensions more resilient by removing needless barriers, and ending the chilling effect created by the prior administration on considering environmental, social and governance factors in investments,” said Gomez in a statement.

U.S. Representative Andy Barr (R-Ky.) and U.S. Senator Mike Braun (R-Ind.) responded to the change on December 15, 2022, by introducing a Congressional Review Act (CRA) resolution aimed at nullifying the rule and preventing similar rulemaking in the future. 

“By finalizing rule-making allowing plan fiduciaries to consider ESG factors, Biden’s Department of Labor is steering capital away from the American energy sector, discriminating against oil and gas producers, driving up prices at the pump, and preventing investors from reaping returns from high-performing energy stocks,” Barr told Axios.

The rule is scheduled to take effect on January 30, 2023.

Want to go deeper?

• Environmental, social, and corporate governance (ESG)
• Arguments for and against environmental, social, and corporate governance (ESG)
• Congressional Review Act

New FTC guidance broadens interpretation of agency’s enforcement authority

What’s the story?

The Federal Trade Commission (FTC) on November 10, 2022, published a policy statement that aims to broaden the agency’s interpretation of its authority under Section 5 of the FTC Act, which authorizes the FTC to investigate and challenge what it deems “unfair methods of competition in or affecting commerce.”

The policy statement—a type of agency guidance—replaces the agency’s 2015 enforcement standards (withdrawn in July 2021) 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. Under the 2015 policy, 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 text of the new policy aims to clarify “that Section 5 reaches beyond the Sherman and Clayton Acts to encompass various types of unfair conduct that tend to negatively affect competitive conditions.”

FTC Commissioners Alvaro M. Bedoya, Rebecca Kelly Slaughter, and Chair Lina M. Khan issued a joint statement in support of the new policy, arguing that the “policy statement is a long overdue step toward enforcing Section 5 of the FTC Act in line with what Congress intended when it prohibited unfair methods of competition in 1914.”

In a dissenting statement, FTC Commissioner Christine Wilson argued that “instead of providing meaningful guidance to businesses, the Policy Statement announces that the Commission has the authority summarily to condemn essentially any business conduct it finds distasteful.”

Want to go deeper?

• Federal Trade Commission
• Guidance

U.S. Senate unanimously supports updates to plain language requirements for federal agency communications

What’s the story?

The U.S. Senate on December 7, 2022, unanimously passed legislation that would update requirements for government agencies to use plain language in certain communications with the public.

The Clear and Concise Act, sponsored by U.S. Senators Gary Peters (D-Mich.) and James Lankford (R-Okla.), would build on the Plain Writing Act of 2010, which requires agencies to use plain language when disseminating paper or digital information necessary for obtaining government benefits and services; information necessary for filing taxes; information about such programs generally; and information about complying with such programs. In addition to new reporting standards, the CCA would broaden these requirements to also mandate that agencies use “clear, concise, well-organized” language when providing information about agency operations, guidance, public interactions, how to navigate agency websites and offices, and instructions about participation in the rulemaking process. 

Agencies under the CCA would be required to make such communications accessible to “an audience who may be disabled, may not be proficient in English or may otherwise be disadvantaged or traditionally underserved.”

Senator Lankford described the motivation behind the bill in a statement, “Government is confusing enough. The least an agency can do is to speak plainly. … Our bill holds agencies accountable to speak ‘citizen speak,’ not government speak.”

Want to go deeper?

• Gary Peters
• James Lankford

In the states

Lawsuit alleges Massachusetts agency unlawfully installed tracking app on mobile devices

What’s the story? 

A new class action lawsuit before the U.S. District Court for the District of Massachusetts alleges that the Massachusetts Department of Public Health (DPH) unconstitutionally installed a COVID-19 contact tracing app on Android mobile devices in the state without the knowledge or consent of device owners.

Plaintiffs Robert Wright and Johnny Kula argue in Wright v. Massachusetts Department of Public Health et al. that DPH has worked with Google since June 2021 to secretly install a COVID-19 tracking app on more than one million Android mobile devices in the state without first obtaining a search warrant. DPH moved to automatically install the app after few Massachusetts citizens chose to voluntarily download the software. Once installed, the app is invisible on users’ home screens and can only be accessed through the device settings. The covert installation, according to the lawsuit, violates citizens’ constitutional privacy and property rights. 

“The government may not secretly install surveillance devices on your personal property without a warrant—even for a laudable purpose. For the same reason, it may not install surveillance software on your smartphone without your awareness and permission,” argued Sheng Li, litigation counsel at the public interest law firm New Civil Liberties Alliance.

DPH told the Daily Caller News Foundation that the agency “has not received any documentation related to this lawsuit and does not comment on pending litigation.”

Want to go deeper?

• New Civil Liberties Alliance
• Documenting Massachusetts’ path to recovery from the coronavirus (COVID-19) pandemic, 2020-2021

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Examining the relationship between federal agencies and state attorneys general

A new report in The Journal of Federal Agency Action by attorneys Ryan J. Strasser, Timothy L. McHugh, Abigail D. Hylton, and William H. Smith III questions whether a fourth type of federal agency action exists when federal agencies coordinate with state attorneys general to implement federal agency initiatives. This type of action, the authors argue, functions beyond the scope of agencies’ traditional rulemaking, adjudicative, and investigative processes:

“In recent years, federal agencies have sought to expand their reach and broaden their capabilities by utilizing state attorneys’ general (‘state AGs’) enforcement powers to accomplish federal regulatory goals. For example, commentators note that federal agencies ‘have enjoyed a synergistic relationship … working on privacy and data security issues’ in recent years. For their part, state AGs have recognized that there is a particularly ‘critical role State Attorneys General play’ in the federal regulatory context and argued ‘for increased partnerships between federal enforcers and the states.’ And while federal agency reliance on state AGs is not entirely new, its recent growth in the face of real and perceived limitations of federal law presents evolving opportunities and challenges. How regulators resolve these issues will affect the regulatory landscape for countless industries, in innumerable ways, and shift the balance of power between federal and state governments for years to come.”

Want to go deeper? 

• Click here to read the full text of “Should Conscription of State Attorneys General Be a Recognized Fourth Form of Federal Agency Action? How Federal Agencies Are Using the States to Expand Their Regulatory Reach and Advance Their Missions.” 

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Regulatory tally

Federal Register

• The Federal Register in November reached 73,620 pages. 
• The November Federal Register included 164 proposed rules and 263 final rules. These included changes to the Federal Communications Commission’s emergency alert system and a correction to a final rule on the National Indian Gaming Commission’s audit standards, among other regulations.
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

Office of Information and Regulatory Affairs (OIRA)

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

• Review of 37 significant regulatory actions. 
• Two rules approved without changes; recommended changes to 34 proposed rules; one rule subject to a statutory or judicial deadline.
• As of December 1, 2022, OIRA’s website listed 98 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More

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 United States Supreme Court’s recent activity, including oral argument in a case challenging the scope of the Environmental Protection Agency’s authority under the Clean Water Act; a decision from the United States Court of Appeals for the Fifth Circuit that responds to the codification of the Deferred Action for Childhood Arrivals (DACA) program; a new challenge to the structure and authority of the Federal Trade Commission; and a record number of public comments received in response to the U.S. Department of Education’s proposed Title IX rule. 

At the state level, we take a look at inaction by Utah state lawmakers allowing for an administrative rulemaking to permit the sale of mini-bottles of alcohol in the state; and a preemption conflict between the state of Pennsylvania and the Philadelphia mayor regarding firearm restrictions.

We also highlight an examination of potential congressional responses to the major questions doctrine from administrative law scholar Christopher J. Walker. As always, we wrap up with our Regulatory Tally, which features information about the 149 proposed rules and 290 final rules added to the Federal Register in September and OIRA’s regulatory review activity.

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In Washington

SCOTUS hears oral argument in Clean Water Act challenge, declines to take up bump stock case

What’s the story?

The U.S. Supreme Court on October 3, 2022, kicked off the October 2022-2023 term with oral argument in Sackett v. Environmental Protection Agency (EPA), a case concerning the scope of the EPA’s authority to determine what wetlands are considered to be “Waters of the United States” under the Clean Water Act (CWA). While much of the justice’s questioning centered on the agency’s interpretation of the rule’s scope, Justice Brett Kavanaugh “suggested that Congress, rather than the Supreme Court, should determine how to draw the line between what is and is not covered by the CWA,” according to SCOTUSblog’s Amy Howe.

The court without comment on October 3 declined to hear Aposhian v. Garland and Gun Owners of America v. Garland—two cases challenging the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) ban on bump stock devices. The agency in 2019 changed its prior interpretation of the Gun Control Act and the National Firearms Act to find that bump stocks qualify as machine guns and can therefore be prohibited. The court’s decision leaves in place a district court ruling that applied Chevron deference to yield to the agency’s changed interpretation of the law and uphold the bump stock ban.

The court also granted certiorari in the following cases concerning administrative exhaustion requirements and the scope of agency authority:

• Perez v. Sturgis Public Schools questions the need to satisfy certain administrative exhaustion requirements related to the Individuals with Disabilities Education Act’s (IDEA) administrative proceedings. 

• Santos-Zacaria v. Garland questions whether federal courts can hear a challenge to a determination from the Board of Immigration Appeals before the plaintiff exhausts the board’s administrative proceedings through a motion to reconsider. 

• The Ohio Adjutant General’s Department v. Federal Labor Relations Authority questions whether the Federal Labor Relations Authority has regulatory authority over state militias.

Want to go deeper?

• Sackett v. Environmental Protection Agency
• Chevron deference
• Supreme Court cases, October term 2022-2023

Federal courts grapple with DACA, separation of powers challenges

What’s the story? 

A three-judge panel of the United States Court of Appeals for the Fifth Circuit on October 5, 2022, upheld a district court decision that found the Deferred Action for Childhood Arrivals (DACA) program, which allows certain individuals brought to the United States without legal permission as minors to continue living and working in the country, to be unlawful. The judges remanded the case to the district court for further review in light of the Biden administration’s recent effort to codify DACA through the rulemaking process.

A coalition of states in 2018 filed suit in Texas v. United States, arguing in part that the Obama administration unlawfully created DACA through a memo, rather than a rule. Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in July 2021 ruled in favor of the states and instituted a pause on new DACA applicants.

Fifth Circuit Judges Priscilla Richman, James C. Ho, and Kurt Engelhardtl upheld the district court ruling but directed the court to reevaluate its holding in light of the Biden administration’s recent effort to codify DACA through the administrative rulemaking process, arguing that the “district court is in the best position to review the administrative record in the rulemaking proceeding.” The final rule, effective October 31, aims to “preserve and fortify” the program, according to U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas.

In another case to watch, Walmart on August 29, 2022, filed a motion to dismiss a suit brought against the company by the Federal Trade Commission (FTC), arguing that the FTC “lacks constitutionally valid authority to initiate litigation seeking monetary or injunctive relief,” according to the filing. Since the FTC is structured as an independent agency headed by a multi-member commission with protections against removal by the president, Walmart contends that the commission lacks the executive authority to sue private parties in federal court.

Want to go deeper?

• U.S. Department of Homeland Security
• United States Court of Appeals for the Fifth Circuit
• Federal Trade Commission

Title IX proposal garners record number of public comments

What’s the story? 

The comment period for the U.S. Department of Education’s (ED) proposed rule seeking to modify Title IX discrimination protections closed on September 12, 2022, after receiving a record number of public comments for the department, according to multiple media reports.

The proposed rule aims to roll back the Trump administration’s Title IX rule, which narrowed the Obama administration’s definition of sexual misconduct at institutions of higher education and sought to support due process for accused individuals by requiring live hearings. The Biden administration’s proposal also broadens the definition of the word sex in the context of discrimination to include not only biological sex but also sexual orientation and gender identity, among other provisions.

Politico reported that the rule had received 146,000 comments as of September 6. That number rose to nearly 350,000 comments by September 7, but the Office of the Federal Register adjusted the total down to roughly 184,000 comments due to what the office described as a clerical error. By the end of the comment period on September 12, the rule had received more than 240,000 public comments.

Nineteen Democratic U.S. senators on September 12 sent a letter to ED Secretary Miguel Cardona in support of the rule, arguing that “the Department’s proposed rule clarifies the scope and application of Title IX’s prohibitions on all forms of discrimination, including discrimination based on sex, sex stereotypes, sex characteristics, and sexual orientation—explicitly extending these protections to trans students.”

Former ED Secretary Betsy Devos argued on Twitter that the proposed rule constitutes a return to challenges that the Trump-era rule sought to address. She also told Fox News that changing the Title IX definition of sex through the rulemaking process “is a bridge too far.” A coalition of 27 parent-led education groups in April sent a letter to Secretary Cardona arguing in part that the proposal “would discard the concept of male and female enshrined in Title IX itself” and “would rob girls and women of equal athletic opportunities.”

Want to go deeper?

• Comment period
• U.S. Department of Education
• Betsy DeVos
• Miguel Cardona

In the states

Utah state agency to allow sale of mini-bottles of alcohol after non-action by state lawmakers

What’s the story? 

After the Utah State Legislature earlier this year declined to weigh in on the sale of mini-bottles of alcohol in the state, the Utah Department of Alcoholic Beverage Services (DABS) voted on July 26, 2022, to advance a proposed rule allowing for the sale of mini-bottles of alcohol in state-run liquor stores. A public comment period on the proposal runs through October 17, 2022.  

The sale of mini-bottles of alcohol has been prohibited in Utah since the 1980s. The proposed rule would allow for the sale of 50 ml bottles of liquor and 187 ml bottles of wine in state-run liquor stores. DABS Executive Director Tiffany Clason told Fox 13 Salt Lake City that the decision to resume the sale of mini-bottles is aimed at accommodating the growing tourism industry in the state, arguing that DABS “has heard a lot of support from private business owners, also in high tourist areas of visitorship, rural areas of Utah where, when people are visiting, they would prefer to have smaller format sizes.” 

Abuse prevention advocates, including DABS Advisory Board member Robert Timerman, have expressed concern about the proposal. Timmerman argued during the July 26 DABS meeting that mini-bottles could allow for the concealment of alcohol and are “a concern on underage drinking as well.”

The Utah State Legislature passed an omnibus liquor bill in 2022 that did not address the sale of mini-bottles of alcohol. Fox 13 reported that the legislature “signaled it would stay out of the matter and allow the DABS to decide whether or not to allow the sale.” If finalized by DABS, the mini-bottles rule could take effect by the end of the year.

Want to go deeper?

• Utah State Legislature 
• Nondelegation doctrine

Philadelphia mayor seeks to limit firearms through executive action

What’s the story? 

Philadelphia Mayor Jim Kenney signed an executive order on September 27, 2022, that aims to ban firearms from indoor and outdoor recreation areas in the city. Judge Joshua H. Roberts of the Philadelphia Common Pleas Court blocked the executive order on October 3, 2022, arguing that it violates state law.  

Pennsylvania law states that local governments cannot enact firearm regulations that are stricter than the state’s regulations. More than 40 states have similar preemption laws. The Philadelphia City Council has previously attempted to prohibit firearms through legislation, but its efforts have been struck down in court based on the state’s preemption statute. 

Mayor Kenney’s executive order seeks to limit firearms in the city through executive, rather than legislative, action. City officials have argued that the order aims to allow the city to manage its facilities as a property owner and, therefore, should not be barred by the law. Andrew Richman, a city attorney, told The Associated Press, “As the property owner of the city’s recreational centers, we believe that the city has the authority to limit guns on our own property.”

The ​​501(c)(4) advocacy group Gun Owners of America (GOA) on September 27 filed suit to challenge the executive order. Judge Roberts later blocked the order on the grounds that it violated state law. GOA attorney Andrew B. Austin told The Philadelphia Inquirer that “the law is so explicit: The City is not allowed to regulate possession of firearms in any manner.”

City officials were reviewing Judge Roberts’ ruling as of October 13, 2022.

Want to go deeper?

• Preemption
• James Kenney
• Joshua Roberts
• Gun Owners of America

____________________________________________________________________________

How Congress could respond to the major questions doctrine

In a forthcoming essay in the Harvard Journal of Law and Public Policy titled “A Congressional Review Act for the Major Questions Doctrine,” administrative law scholar Christopher J. Walker examines potential congressional responses to the major questions doctrine with an emphasis on its deregulatory implications. Walker proposes a mechanism in the spirit of the Congressional Review Act that would expedite congressional review of agency rules invalidated by federal courts under the major questions doctrine:

“Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate a question of great economic, policy, or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond, by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could enact a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such joint resolution would amend the agency’s governing statute to expressly authorize the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself—tempering the new doctrine’s asymmetric deregulatory effect and helping to restore Congress’s primary legislative role in the modern administrative state.”

Want to go deeper? 

• Click here to read the full text of “A Congressional Review Act for the Major Questions Doctrine” by Christopher J. Walker. 

____________________________________________________________________________

Regulatory tally

Federal Register

• The Federal Register in September reached 59,632 pages. 
• The September Federal Register included 149 proposed rules and 290 final rules. These included renewable fuel standards for small refineries and corrections to regulations for the National Bridge Inspection Standards Program, among other regulations.
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

Office of Information and Regulatory Affairs (OIRA)

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

• Review of 45 significant regulatory actions. 
• Nine rules approved without changes; recommended changes to 32 proposed rules; three rules withdrawn from the review process; one rule subject to a statutory or judicial deadline. 
• As of October 3, 2022, OIRA’s website listed 119 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More

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 U.S. Department of Homeland Security’s codification of the Deferred Action for Childhood Arrivals (DACA) program; a hodge-podge of remaining agency guidance document portals following President Joe Biden’s (D) removal directive; and a ruling from a panel of the United States Court of Appeals for the Eleventh Circuit finding the coronavirus (COVID-19) vaccine requirement for federal contractors unlawful. 

At the state level, we take a look at administrative rulemaking recommendations from an Indiana task force as well as a new, centralized Office of Administrative Hearings in Idaho.

We also highlight an examination of the challenges of agency incorporation by reference from law professor Emily J. Bremer. As always, we wrap up with our Regulatory Tally, which features information about the 165 proposed rules and 282 final rules added to the Federal Register in August and OIRA’s regulatory review activity.

---

In Washington

Biden administration codifies DACA

What’s the story?

The U.S. Department of Homeland Security (DHS) on August 24, 2022, issued a final regulation effective October 31 that codifies the existing Deferred Action for Childhood Arrivals (DACA) program, which allows certain individuals brought to the United States without legal permission as minors to continue living and working in the country. DHS Secretary Alejandro Mayorkas stated that codifying DACA aims to “preserve and fortify” the program.

President Barack Obama (D) in 2012 created DACA through a memo issued by then-DHS Secretary Janet Napolitano. The Trump administration in 2017 sought to rescind DACA, but the U.S. Supreme Court on June 18, 2020, ruled 5-4 in DHS v. Regents of the University of California that DHS did not properly follow Administrative Procedure Act (APA) procedures in its effort to end the program. A coalition of states later filed suit in Texas v. United States arguing in part that DACA was unlawfully created through a memo, rather than a rule. Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in July 2021 issued a decision in favor of the states that put a pause on new DACA applicants. The case is currently pending before the United States Court of Appeals for the Fifth Circuit, which heard oral argument in July 2022.

Secretary Mayorkas has called on Congress to pass DACA legislation, arguing in a July 2021 statement that “only the passage of legislation will give full protection and a path to citizenship to DACA recipients.” Current DACA legislation, known as the Dream and Promise Act, passed the U.S. House of Representatives in March 2021 and was pending in the U.S. Senate as of September 15, 2022.

Though codifying DACA through the rulemaking process aims to bolster the program’s procedural footing, DACA may still face legal challenges. Some litigants and judges, according to Bloomberg, question whether DHS has the authority to issue such deportation protections, which they argue may run afoul of federal immigration law.

Want to go deeper?

• U.S. Department of Homeland Security
• Andrew Hanen
• Department of Homeland Security v. Regents of the University of California

Public-facing agency guidance document portals in limbo

What’s the story? 

Some public-facing agency guidance document portals remained intact as of August 2022 despite a Biden administration directive to the contrary, according to a report by the Competitive Enterprise Institute (CEI). 

President Donald Trump (R) in 2019 issued Executive Order 13891, which aimed to prohibit federal administrative agencies from issuing binding rules through guidance documents and required agencies to create searchable databases of their effective guidance. President Joe Biden (D) revoked E.O. 13891 shortly after taking office in 2021 and directed agencies to take steps to unwind the order’s implementation. 

The CEI study found that federal agencies have retained public-facing access to more than 107,000 guidance documents, though the future of such guidance portals remains unclear.

Want to go deeper?

• Biden EO spurs removal of publicly available guidance document portals
• Executive Order 13981
• Guidance

Eleventh Circuit panel finds federal contractor vaccine mandate unlawful

What’s the story?

A three-judge panel of the United States Court of Appeals for the Eleventh Circuit on August 26, 2022, found unlawful the Biden administration’s requirement that federal contractors receive a coronavirus (COVID-19) vaccine.

The judges found that the federal Procurement Act does not delegate authority to the president to require coronavirus (COVID-19) vaccination for federal contractors. Judge Britt Grant argued in the opinion that the Biden administration’s “proposed reading [of the act] rests on an upside-down view of the statutory scheme—that Congress has granted the President complete authority to control the federal contracting process in a way he thinks is economical and efficient, subject only to certain statutory limitations. The statute’s language does not support this reading.” 

Following the court’s decision, the Biden administration’s Safer Federal Workforce Task Force on August 31 updated its website with new guidance on the federal contractor vaccine requirement, stating that the federal government “will take no action to implement or enforce” the mandate “absent further written notice.”

Though the Eleventh Circuit limited the nationwide injunction issued by the lower court to only the plaintiffs in the case, other injunctions in ongoing cases as of September 15 have blocked enforcement of the mandate in the following fifteen states: Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming, Florida, Kentucky, Ohio, Tennessee, and Arizona.

Want to go deeper?

• Britt Grant 
• Federal government responses to the coronavirus (COVID-19) pandemic, 2020-2022

In the states

Indiana General Assembly task force considers proposals aimed at increasing legislative oversight of agency rulemaking 

What’s the story? 

An interim committee of the Indiana General Assembly on August 24, 2022, discussed recommendations aimed at increasing legislative oversight of state agency rulemaking.

Indiana lawmakers in 2022 created the 10-member Administrative Rules Review Task Force in part as a response to lawmakers’ unsuccessful effort to pass House Bill 1100, which aimed to require the Indiana Attorney General to approve emergency regulations issued by state agencies and limit their effective period to 180 days. The bill also proposed requiring agencies to repeal one rule before issuing another, among other rulemaking provisions. Though the bill passed the state House, it did not come up for consideration in the state Senate.

Members of the bipartisan task force discussed whether state lawmakers should receive notice of adopted agency rules; whether state agencies should be able to adjust fees and fines through emergency rules; and whether agencies should make the text of rules available prior to public hearings, according to Inside Indiana Business.

The committee has scheduled meetings through October 2022 and is set to expire on December 31.

Want to go deeper?

• Indiana General Assembly
• Rulemaking

Idaho centralizes state administrative adjudicators

What’s the story? 

Idaho Governor Brad Little (R) on September 6, 2022, appointed attorney Bryan Nickels to serve as the first chief administrative hearing officer for the state’s new Office of Administrative Hearings (OAH).

Idaho lawmakers in 2022 passed House Bill 629, which amended the state’s Administrative Procedure Act to create the OAH. The new office aims to “assure fair hearings without actual or perceived bias on the part [sic] administrative hearing officers,” according to a press release from Governor Little. The OAH will hear all contested agency cases as well as any other adjudicatory hearings or processes requested by state agencies.

Idaho joins twenty-eight other states with a centralized panel of administrative adjudicators. Though the Idaho OAH comprises a panel of what the state APA refers to as administrative hearing officers, most state panels are made up of adjudicators known as state administrative law judges. The remaining states—and the federal government—have various types of administrative adjudicators that are appointed by agency heads or hired as agency employees to conduct administrative proceedings at specific agencies.

Want to go deeper?

• State administrative law judge
• Federal administrative adjudicators
• Idaho Administrative Procedure Act

____________________________________________________________________________

A closer look at incorporation by reference

New scholarship from law professor Emily J. Bremer featured in The Regulatory Review sheds light on an agency practice known as incorporation by reference. Through incorporation by reference, agencies aim to save textual space in regulatory and legal documents by declaring that the entire text of a referenced document is included in another document without reprinting the text of the cited document. Bremer notes certain challenges to this practice, including agency use of incorporation by reference in non-transparent ways to adopt standards developed by regulated industry:

“Through the practice of incorporation by reference, government agencies enact into law the standards developed by private organizations—often without giving the public free, easy access to what those private standards say. It is a modest caricature to say that incorporation by reference allows government officials to shortcut their work by imposing on individuals and businesses the relatively secret dictates of private actors. … 

“The difficulty is that, when an agency incorporates a private, voluntary standard into a regulation, regulated parties and the public must usually pay the private standard-setting organization to see the full text of the agency’s proposed or final regulation. This requirement is because most standard-setting organizations assert copyright over their standards and rely on the revenue from the sale of the standards to fund their standard-setting processes. The resulting financial and practical barriers to public access to incorporated standards are contrary to modern administrative law norms, which have been shaped by the internet and the free, ready availability it provides to statutes, regulations, and agency documents.”

Want to go deeper? 

• Click here to read the full text of “Introducing Incorporation by Reference” by Emily J. Bremer. 
• Incorporation by reference

____________________________________________________________________________

Regulatory tally

Federal Register

• The Federal Register in August reached 53,646 pages. 
• The August Federal Register included 165 proposed rules and 282 final rules. These included revisions to regulations regarding the Surety Bond Guarantee (SBG) program and an amendment to procedure regulations for the Transportation Security Oversight Board (TSOB) Review Panel, among other regulations.
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

Office of Information and Regulatory Affairs (OIRA)

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

• Review of 46 significant regulatory actions. 
• Two rules approved without changes; recommended changes to 38 proposed rules; six rules withdrawn from the review process.
• As of September 1, 2022, OIRA’s website listed 111 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More

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 United States Supreme Court’s (SCOTUS) decision to hear a federal immigration policy challenge; a federal appellate court ruling that could affect future agency approaches to midnight rulemaking; and new legislation that proposes to make federal employees removable at-will. 

At the state level, we take a look at court cases in Ohio and Wisconsin affecting state-level approaches to deference and delegation, respectively, as well as a request from a coalition of secretaries of state for federal agencies to cease state-level voter registration efforts.

We also highlight a new examination of the major questions doctrine from administrative law scholar Eli Nachamany describing what he views as the doctrine’s three distinct applications. As always, we wrap up with our Regulatory Tally, which features information about the 157 proposed rules and 223 final rules added to the Federal Register in July and OIRA’s regulatory review activity.

---

In Washington

SCOTUS agrees to hear challenge to DHS immigration policy

What’s the story?

The United States Supreme Court on July 21, 2022, agreed to hear a case that questions whether the U.S. Department of Homeland Security’s (DHS) September 2021 guidance directing immigration enforcement officials to prioritize the arrest and deportation of certain groups of individuals who entered the country without legal permission violates federal immigration law and the Administrative Procedure Act (APA).

The court’s decision in the case could clarify the administrative procedures the executive branch must follow in order to issue guidance concerning immigration policy. The decision could also clarify whether district courts have the authority to vacate immigration policies issued by the executive branch.

The DHS policy directs the department to focus its deportation efforts narrowly on suspected terrorists, individuals who committed serious crimes, and noncitizens caught at the border. Texas and Louisiana challenged the policy, arguing in part that the directive ignores provisions of federal immigration law mandating the detention of a broader group of certain criminal individuals who entered the country without legal permission.

Judge Drew Tipton of the United States District Court for the Southern District of Texas on June 10 vacated the policy, claiming that it is “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.” The United States Court of Appeals for the Fifth Circuit declined to put the district court ruling on hold while the federal government appealed. The Supreme Court agreed to hear the case but voted 5-4 not to reinstate the policy pending review by the court.

Want to go deeper?

• United States v. Texas
• Guidance
• Drew Tipton

D.C. Circuit ruling could make it harder to withdraw midnight rules

What’s the story? 

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 22, 2022, ruled 2-1 that federal agencies must follow notice-and-comment rulemaking requirements in order to rescind agency rules made available for public inspection but not yet published in the Federal Register. The ruling could affect an incoming presidential administration’s ability to withdraw midnight rules issued in the final days of an outgoing administration.

The Federal Register Act requires the Office of the Federal Register to make rules available for public inspection at least one day before publishing the final rule in the Federal Register. The case concerns an Obama-era U.S. Department of Agriculture (USDA) rule affecting show horses that was made available for public inspection but not yet published in the Federal Register when President Donald Trump (R) took office and directed agencies to withdraw all unpublished rules. A coalition of groups led by the Humane Society sued the USDA, arguing in part that the agency must go through notice-and-comment rulemaking to withdraw the rule because it had become final at the date of public inspection. 

Judge David Tatel wrote for the majority, joined by Judge Patricia Millet, arguing that rules made available for public inspection prior to publication in the Federal Register have passed the “regulatory point of no return” and can be considered final rules for the purposes of withdrawal. Judge Tatel claimed that the Federal Register Act “contemplates that a rule may be prescribed before publication in the Federal Register,” adding that the Administrative Procedure Act (APA) thus “requires the agency to undertake notice and comment before repealing it.”

Judge Neomi Rao, former administrator of the Office of Information and Regulatory Affairs during the Trump administration, dissented, arguing that the majority opinion based its claim on an “obsolete” provision of the Federal Records Act and ignored “statutes that govern the rulemaking process and the established judicial precedent setting the finality of agency action at publication” in the Federal Register.

The decision could affect future agency approaches to midnight rulemaking—a phenomenon that occurs when outgoing presidential administrations issue rules at a higher rate between election day in November and inauguration day the following January. The ruling would prevent incoming presidential administrations from withdrawing certain midnight rules without first engaging in the notice-and-comment process. 

Want to go deeper?

• Midnight rulemaking
• Dave Tatel
• Patricia Millet
• Neomi Rao

New federal legislation proposes at-will removal of federal employees

What’s the story?

Representative Chip Roy (R-Texas) on July 28, 2022, introduced the Public Service Reform Act (PSRA)—legislation that aims to mitigate federal employee actions that run counter to executive branch priorities by making federal employees removable at-will. The PSRA had 11 Republican cosponsors as of August 17, 2022.

Federal civil service members enjoy merit system protections that aim in part to protect nonpartisan federal employees from politically motivated firings. Roy argues that, in practice, such protections have insulated the civil service from political oversight and allowed federal employees to work in support of policy preferences that do not align with those of the elected president. In addition to making federal employees removable at-will, the bill would also eliminate the Merit Systems Protection Board (MSPB), the agency tasked with reviewing employee removal appeals. Under Roy’s proposal, federal employees would appeal their removal directly to their supervisors, who could be overruled by agency heads.

“My bill would make all federal bureaucrats at-will employees—just like private sector workers—and claw back the inordinate protections some federal employees grossly abuse while helping legitimate whistleblowers and victims of discrimination get the justice they deserve,” said Roy in a press release.

Don Kettl, emeritus professor at the University of Maryland School of Public Policy, expressed concern that certain provisions of the bill, such as a 14-day period for the Office of Special Counsel to make recommendations on alleged whistleblower appeals, could “dramatically change the incentives for individuals who are being dismissed because of whistleblowing,” according to Government Executive. 

Want to go deeper?

• Chip Roy
• Civil service

In the states

Ohio Supreme Court hears argument in deference challenge

What’s the story? 

The Ohio Supreme Court on July 12, 2022, heard oral argument in TWISM Enterprises LLC v. State Board of Registration for Professional Engineers and Surveyors, a case that could determine the future of judicial deference in the state.

​​The Hamilton County Court of Appeals in TWISM deferred to the Ohio Board of Registration for Professional Engineers and Surveyors’ interpretation of its engineering certification rules, which denied TWISM Enterprises’ application to provide professional engineering services because the company’s designated licensed engineer was an independent contractor rather than an employee. TWISM Enterprises appealed the decision to the Ohio Supreme Court, arguing that the agency’s interpretation of the governing statute was flawed because the law does not specify that the licensed engineer must be an employee of the business.

The board largely avoided making deference claims in its argument and instead sought to bolster its view that Ohio law requires licensed engineers to be business employees, according to an analysis by attorney John Kerkoff for Notice and Comment. Though the board still asked for deference to its statutory interpretation, it stated that the court did not need to use the case to resolve ambiguity around Ohio’s approach to a mandatory Chevron deference framework.

“If the Court accepts the Board’s invitation to ignore deference, it will likely only tighten the Gordian Knot confounding lower courts,” argued Kerkoff. “After all, as Justice DeWine previously explained, Ohio has no deference ‘doctrine.’ It has a hodgepodge of ad hoc approaches leading to widespread uncertainty.”

Want to go deeper?

• State responses to judicial deference
• Ohio Supreme Court

Wisconsin Supreme Court declines to narrow state’s nondelegation doctrine

What’s the story? 

The Wisconsin Supreme Court on July 8, 2022, voted 3-1-3 in Becker v. Dane County to uphold a delegation of authority to a local health officer to issue and enforce a prohibition on certain public gatherings during the coronavirus (COVID-19) pandemic. The plurality declined to alter the court’s approach to nondelegation jurisprudence.

Plaintiffs in the case argued in part that the state legislature and Dane County unlawfully delegated authority to a local health officer to issue and enforce a public health order banning certain gatherings during the coronavirus (COVID-19) pandemic.

In a split decision, three justices held that the public health order constituted a permissible delegation of legislative authority because existing legislative and judicial oversight mechanisms were sufficient to guard against any overreach of authority by the local health officer. In his concurrence agreeing with the three justices’ conclusion, Justice Brian Hagedorn wrote, “For nearly 100 years, this court has mostly taken a hands-off approach to claims of impermissible delegation of legislative power. We have upheld laws that assign policymaking to executive bodies based primarily on whether the law contains sufficient procedural protections to curb abuses of delegated power. While not without some substantive limits, we have generally looked the other way if procedural protections ‘will adequately assure that discretionary power is not exercised unnecessarily or indiscriminately.’”

The dissenting justices argued that the plurality misinterpreted state laws governing delegations to local health entities and exercised “judicial complacence” by basing their decision on procedural protections rather than vested authority. Justice Rebecca Bradley wrote, “Although on paper this court claims to require some substantive limits on delegated legislative power, it has heavily preferred ‘procedural safeguards.’ … Such complacence does not comport with the original meaning of the vesting clauses, which the court has an obligation to restore.”

Want to go deeper?

• Nondelegation doctrine
• Wisconsin Supreme Court

Secretaries of state challenge federal voter registration directive

What’s the story? 

A coalition of fifteen secretaries of state on August 3, 2022, signed a letter requesting that President Joe Biden (D) rescind Executive Order 14019, which directs federal agencies to develop state-level voter registration programs. The secretaries claim that such agency activity exceeds their authority and disregards state laws governing election processes.

President Biden on March 7, 2021, issued E.O. 14019 directing federal agencies in part to develop voter registration plans in states that use agency services or programs. The order states, “It is the responsibility of the Federal Government to expand access to, and education about, voter registration and election information, and to combat misinformation, in order to enable all eligible Americans to participate in our democracy,”

The secretaries of state argued that federal agencies do not possess the constitutional or statutory authority to engage in voter registration activities. The U.S. Constitution, they argue, “clearly says the state legislatures shall (emphasis added) prescribe the way elections are run, and that if any adjustments need to be made, such adjustments are the province of Congress, not the Executive branch.” Voter registration plans developed by federal agencies would, in their view, duplicate state-level efforts and ignore state voting laws.

The fifteen secretaries of state hold office in the following states: Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Nebraska, Ohio, South Dakota, Tennessee, West Virginia, and Wyoming.

Want to go deeper?

• Secretary of state
• Executive agency

____________________________________________________________________________

Three versions of the major questions doctrine

Administrative law scholar Eli Nachmany in July argued in Notice and Comment that the major questions doctrine—the principle recognized by the U.S. Supreme Court in West Virginia v. Environmental Protection Agency holding that Congress must speak clearly for agencies to regulate on questions of economic or political significance—is actually what he refers to as a “major questions canon” that comprises three separate doctrines.

Nachmany first cites Cass Sunstein’s scholarship identifying what Sunstein considers to be two versions of the major questions doctrine: a “weak version” that constrains Chevron deference and a “strong version” that prevents agencies from exercising authority not clearly granted by Congress. Nachmany further claims that Justice Brett Kavanaugh identified a third version of the major questions doctrine in his 2019 statement regarding the court’s denial of certiorari in Paul v. United States, arguing that the major questions doctrine could serve as a triage tool for the court to weed out nondelegation claims challenging less significant agency actions from those concerning major policy questions.

Nachmany provides the following bulleted list describing what he considers to be three major questions doctrines:

• The major questions carve-out to Chevron deference
  • Exemplified by: King v. Burwell
  • Rule: Courts will not apply the deferential two-step Chevron framework to an agency’s interpretation of a statute when the interpretive question is one of deep economic and political significance.
  • Upshot: This carve-out weakens the Chevron doctrine without abandoning it entirely and channels “major questions” cases out of Chevronland.
• The major questions canon of statutory interpretation
  • Exemplified by: West Virginia v. EPA
  • Rule: In extraordinary cases, courts will demand a clear statement from Congress before an agency can claim broad authority in the context of an issue of national political and economic significance.
  • Upshot: This canon of interpretation operates as a sub-canon of constitutional avoidance, skirting issues of nondelegation by resolving cases on statutory grounds.
• The major questions triage rule
  • Exemplified by: Justice Kavanaugh’s statement respecting the denial of certiorari in Paul v. United States
  • Rule: Apply the nondelegation doctrine to statutes involving major policy questions, but not to provisions of law that are “less-major” or that permit an agency to fill up the details of a statutory scheme.
  • Upshot: The nondelegation doctrine would only be applicable in the big cases

Want to go deeper? 

• Click here to read the full text of “There Are Three Major Questions Doctrines” by Eli Nachmany. 

____________________________________________________________________________

Regulatory tally

Federal Register

• The Federal Register in July reached 46,882 pages. 
• The July Federal Register included 157 proposed rules and 223 final rules. These included an amendment to the minimum sound requirements for hybrid and electric vehicles and an amendment to the Global Terrorism Sanctions Regulations, among other regulations.
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

Office of Information and Regulatory Affairs (OIRA)

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

• Review of 47 significant regulatory actions. 
• Six rules approved without changes; recommended changes to 40 proposed rules; one rule withdrawn from the review process.
• As of August 1, 2022, OIRA’s website listed 105 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More

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 United States Supreme Court’s (SCOTUS) recent decision affecting Chevron deference and the major questions doctrine; new federal legislation aiming to make task force guidance subject to the Congressional Review Act (CRA); and the continued revival of sue and settle at the Environmental Protection Agency (EPA). 

At the state level, we take a look at a court case challenging a California ballot measure’s effect on pork production in other states as well as a recent court decision arguing that bumblebees are, in fact, fish.

We also highlight a new article from administrative law scholar Joseph Postell examining the ambiguity of expertise in the administrative state. As always, we wrap up with our Regulatory Tally, which features information about the 199 proposed rules and 279 final rules added to the Federal Register in June and OIRA’s regulatory review activity.

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In Washington

SCOTUS rolls out major questions doctrine, stays silent on Chevron 

What’s the story?

The United States Supreme Court in June issued decisions in two administrative law cases concerning judicial review of agency actions. While the court officially ushered in the major questions doctrine, it stayed silent on the future of Chevron deference.

In West Virginia v. Environmental Protection Agency, the court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff. Post-decision commentary questioned how the decision could affect other delegations of authority and whether the major questions doctrine would replace Chevron deference as the court’s preferred tool for reviewing challenges to agency authority.

In Biden v. Texas, the court ruled 5-4 to uphold the U.S. Department of Homeland Security’s memoranda ending the Migrant Protection Protocols (MPP) program as a lawful final agency action consistent with federal immigration law and the Administrative Procedure Act (APA)—allowing the Biden administration to move forward with its plan to end the MPP. The decision in the case helped clarify the scope of agency discretion regarding immigration policy as well as the types of agency actions that the court considers to be final agency actions pursuant to the APA.

Want to go deeper?

• West Virginia v. Environmental Protection Agency
• Biden v. Texas

Senators propose broadening the Congressional Review Act’s scope

What’s the story? 

U.S. Senator Dan Sullivan (R-Alaska) on June 16, 2022, introduced the Checks and Balances Act (S. 4427), which proposes to amend the Congressional Review Act (CRA) to make guidance issued by presidential task forces subject to a resolution of disapproval—a process that allows members of Congress to vote to nullify certain federal agency rules.

Sullivan stated that he authored S. 4427 in response to the Government Accountability Office’s (GAO) March determination finding that Congress cannot apply the CRA to President Biden’s coronavirus (COVID-19) vaccine mandate for federal contractors. GAO argued that the mandate did not qualify as a reviewable agency action for purposes of the CRA because President Biden’s Executive Order 14042 had directed the Safer Federal Workforce Task Force—rather than a federal agency—to bring about the mandate. GAO also claimed that the director of the Office of Management and Budget (OMB) “stepped into the shoes of the President and exercised his delegated discretionary authority when approving the Guidance, meaning OMB was not acting as an agency under CRA.”

Sullivan disagreed with the GAO’s reasoning, arguing in a press release that guidance issued by such presidential task forces, like the vaccine mandate for federal contractors, constitute “glaring loopholes in federal law.” He further argued that “Congress has a duty to check the President’s power in this area.”

U.S. Senators Cindy Hyde-Smith (R-Miss.), Steve Daines (R-Mont.), Roger Marshall (R-Kan.), and Mike Braun (R-Ind.) cosponsored the bill.

Want to go deeper?

• Congressional Review Act
• Dan Sullivan

EPA continues sue and settle revival

What’s the story?

The U.S. Environmental Protection Agency (EPA) on May 23, 2022, demonstrated its renewed commitment to sue and settle by giving notice of a proposed a consent decree establishing a timeline for the agency to publish updated 2023 biofuel blending requirements. 

Sue and settle is a term used to describe cases in which an outside group sues a federal agency in order to reach a settlement that is favorable to the regulatory goals of both. While EPA officials during the Trump administration prohibited sue and settle, describing it as “regulation through litigation,” Biden officials later reinstated the practice, referring to sue and settle as a “practical, economical and efficient path forward” for the EPA.

The EPA’s May consent decree aims to settle a lawsuit brought by the biofuel trade association Growth Energy in which the group asked the federal courts to set a timeline for the EPA to publish updated biofuel blending requirements for 2023. The settlement requires the EPA to propose 2023 requirements no later than September 16, 2022, and finalize those requirements by April 28, 2023.

Want to go deeper?

• Sue and settle
• Environmental Protection Agency

In the states

SCOTUS to examine effect of California pork regulations on interstate commerce

What’s the story? 

A case scheduled for argument before the U.S. Supreme Court during the upcoming term questions whether a California ballot measure regulating the in-state sale of pork products unlawfully regulates pork producers in other states. National Pork Producers Council v. Ross could clarify whether such state-specific actions, which can carry widespread regulatory implications for other states, violate federalism principles and the dormant Commerce Clause.

California voters in 2018 passed Proposition 12, which prohibited the sale of pork products in the state unless pork producers house their livestock according to certain space requirements and directed state agencies to issue implementing regulations. Plaintiffs in the case claim that California voters, who consume 13% of the nation’s pork but raise roughly 0.13% of the nation’s breeding herd, effectively forced out-of-state farmers to follow California’s agriculture regulations rather than the regulations in their own states. Such state action, according to plaintiffs, violates federalism principles and the dormant Commerce Clause—a legal doctrine derived from the Constitution’s Commerce Clause that bars states from passing legislation that ostensibly regulates interstate commerce.

The U.S. Department of Justice in June filed an amicus brief in support of pork producers, arguing in part, “​​States may not otherwise regulate out-of-state entities by banning products that pose no threat to public health or safety based on philosophical objections to out-of-state production methods or public policies that have no impact in the regulating State.” 

Wayne Pacelle, president of the nonprofit groups Animal Wellness Action and the Center for a Humane Economy, disagreed with the Biden administration’s position. He told the San Francisco Chronicle, “It is shocking that the Biden administration is attacking the rights of states to enact anti-cruelty and food safety laws that are nonexistent at the federal level … The state’s interest in protecting the interests of Californians could not be clearer.”

Want to go deeper?

• California Proposition 12 (2018)
• National Pork Producers Council v. Ross

California court claims insects are fish to uphold bumblebee regulation

What’s the story? 

The California Third District Court of Appeals of May 31, 2022, upheld a broad interpretation of the California Endangered Species Act (CESA) that allows the California Fish and Game Commission to consider bumblebees as fish under the meaning of the act and, therefore, to list them as endangered species. 

The CESA speaks to birds, mammals, fishes, amphibians, reptiles, and plants, but is silent on insects. The California Fish and Game Commission in 2019 nonetheless accepted a petition to list four bumblebee species as endangered. Agricultural groups sued and Judge James P. Arguelles of the Superior Court of Sacramento County overturned the listing in Almond Alliance of California v. Fish and Game Commission, arguing that the CESA does not cover insects. 

The court of appeal disagreed, finding that the state legislature had intended that the CESA cover insects since lawmakers had previously defined “fish” in the state’s Fish and Game Code to mean “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.” The court further argued that the word “invertebrate” in the Fish and Game Code definition does not strictly refer to aquatic species, stating, “Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.”

Plaintiffs in the case can appeal the decision to the California Supreme Court. No further action had been taken as of July 14, 2022.

Want to go deeper?

• Five pillars of the administrative state: a 50-state survey

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Examining the ambiguity of administrative expertise

A recent article in Social Philosophy and Policy from administrative law scholar Joseph Postell aims to examine the role of expertise in the administrative state: what is it, who wields it, and how it affects policy making. In “The Ambiguity of Expertise in the Administrative State,” Postell argues that the Progressive Era view favoring the separation of politics and administrative expertise was abandoned by the mid-twentieth century, resulting in continued ambiguity surrounding the notion of agency expertise:

“In short, the principle of rule by experts occupies a central but ambiguous place in the Progressives’ political theory, and in the administrative state that they founded. This essay describes the Progressives’ writings and views on the idea of expert rule in the administrative state. It then explains how the ambiguity in that idea led to political and theoretical problems that Progressives never fully resolved. These problems occupied and divided Progressives during the 1912 presidential election and throughout the 1910s and 1920s. The New Deal saw Progressives abandon the idea of neutral expertise in favor of a theory of presidential management of administration, and scholars of political science and public administration largely abandoned the separation of politics and administration by the mid-twentieth century. This leaves the place of expertise in the administrative state unclear still today. The administrative state requires both neutral expertise and democratic legitimacy but has never fully reconciled the tensions between these principles.”

Want to go deeper? 

• Click here to read the full text of “The Ambiguity of Expertise in the Administrative State” by Joseph Postell. 

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Regulatory tally

Federal Register

• The Federal Register in June reached 39,328 pages. 
• The June Federal Register included 199 proposed rules and 279 final rules. These included changes to prices for international mailing services and an increase to small business size standards for wholesale and retail trade, among other regulations.
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

Office of Information and Regulatory Affairs (OIRA)

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

• Review of 38 significant regulatory actions. 
• Four rules approved without changes; recommended changes to 32 proposed rules; one rule withdrawn from the review process; one rule subject to a statutory or judicial deadline.
• As of July 1, 2022, OIRA’s website listed 119 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More

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 United States Supreme Court’s (SCOTUS) recent decisions concerning statutory authority and final agency actions; a decision out of the United States Court of Appeals for the Fifth Circuit that found constitutional deficits with the Securities and Exchange Commission’s enforcement proceedings; and new legislation that seeks to relocate federal agency headquarters out of Washington, D.C. 

At the state level, we take a look at North Carolina legislation that aims to allow the state’s administrative law judges to nullify state agency rules and two new state-level reports that examine administrative agencies in Wisconsin and Mississippi.

We also highlight a review by administrative law scholar Cass Sunstein examining law professor Thomas Merrill’s latest book and a Scott Rasmussen national survey gauging public sentiment on federal regulatory activity. As always, we wrap up with our Regulatory Tally, which features information about the 154 proposed rules and 265 final rules added to the Federal Register in May and OIRA’s regulatory review activity.

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In Washington

SCOTUS silent on Chevron, weighs in on final agency actions

What’s the story?

Since the last edition of Checks and Balances, the U.S. Supreme Court has issued opinions and granted certiorari in administrative law cases that shed light on both the future of Chevron deference and the limits of final agency actions.

In American Hospital Association v. Becerra, the justices on June 15 unanimously held that the U.S. Department of Health and Human Services (HHS) exceeded its statutory authority when it reduced certain Medicare reimbursement rates. Though some commentators had anticipated that the case would provide the court with an opportunity to limit Chevron deference, Justice Brett Kavanaugh made no mention of the doctrine in the majority opinion, leading SCOTUSblog analyst James Romoser to question whether “the doctrine may be shunned into oblivion” rather than explicitly overturned.

In George v. McDonough, the court on June 15 held 6-3 that a “clear and unmistakable error” (CUE) does not include subsequent changes to laws or regulations. Kevin George had sought to overturn the denial of his disability benefits, claiming that the U.S. Department of Veterans Affairs (VA) committed a CUE by basing their denial on later-invalidated regulations. The court disagreed and found that the VA’s regulatory changes can only retroactively affect open—rather than final—agency decisions. 

The court on May 16 granted certiorari in another case concerning final agency actions (and administrative law judges). Securities and Exchange Commission v. Cochran questions whether federal district courts can concurrently hear constitutional challenges to the SEC’s administrative law judges in cases where the agency has yet to issue a final adjudicative order. The case is scheduled for argument during the court’s October 2022-2023 term.

Want to go deeper?

• American Hospital Association v. Becerra
• George v. McDonough
• Securities and Exchange Commission v. Cochran
• Chevron deference

Fifth Circuit finds constitutional flaws in SEC enforcement

What’s the story? 

A divided three-judge panel of the United States Court of Appeals for the Fifth Circuit on May 18 found a trio of constitutional deficits with the Securities and Exchange Commission’s (SEC) enforcement proceedings that could affect the future scope of federal agency authority.

The panel held in Jarkesy v. Securities and Exchange Commission (SEC) that the SEC administrative law judges’ (ALJs) two layers of removal protections unconstitutionally insulate them from presidential oversight; that the agency’s adjudication proceedings violate the Seventh Amendment right to a jury trial; and that Congress unconstitutionally delegated legislative power to the SEC by failing to provide the agency with an intelligible principle to guide its enforcement actions.

“Congress has given the Securities and Exchange Commission substantial power to enforce the nation’s securities laws. It often acts as both prosecutor and judge, and its decisions have broad consequences for personal liberty and property. But the Constitution constrains the SEC’s powers by protecting individual rights and the prerogatives of the other branches of government,” wrote Judge Jennifer Walker Elrod in the opinion.

Should Jarkesy reach the U.S. Supreme Court on appeal, the case could “set up the prospect that the Supreme Court may curtail the SEC’s administrative powers, and the powers of federal administrative agencies generally,” according to The National Law Review.

Want to go deeper?

• Securities and Exchange Commission
• United States Court of Appeals for the Fifth Circuit
• Jennifer Walker Elrod

New legislation aims to relocate federal agency headquarters 

What’s the story?

U.S. Senator Joni Ernst (R-Iowa) and U.S. Representative Bill Johnson (R-Ohio) on May 12 filed bicameral legislation that aims to move federal agency headquarters out of Washington D.C.

The Strategic Withdrawal of Agencies for Meaningful Placement (SWAMP) Act seeks to create a competitive bidding process for cities around the country to house federal agency headquarters. The bill’s authors claim that relocating agency headquarters out of Washington D.C. has the potential to distribute federal agency jobs to new parts of the country and bring agency officials in closer proximity to the citizens and entities they regulate.

“It’s time to enable other cities, if they choose, to house federal government agencies to ensure that isolated, unelected career bureaucrats can begin immersing into the American fabric and living among the people they’ve pledged to serve,” Johnson told The Iowa Torch.

President Donald Trump (R) in 2020 relocated the Bureau of Land Management’s (BLM) headquarters from Washington D.C. to Colorado with the goal of bringing the agency closer to the public lands it manages. The following year, President Joe Biden (D) returned the agency’s headquarters to Washington, D.C., arguing in part that a leadership presence in the nation’s capital is necessary for BLM and other agencies to carry out their missions.

Want to go deeper?

• Joni Ernst
• Bill Johnson
• U.S. Bureau of Land Management

In the states

North Carolina bill would allow state ALJs to nullify agency rules

What’s the story? 

North Carolina state Representative Sarah Stevens (R) on May 18 filed legislation that aims to place a check on state agency authority by granting the state’s administrative law judges (ALJs) the power to nullify certain agency rules.

Under existing law, North Carolina ALJs have the power to declare an agency rule void “as applied in a particular case” if the rule meets three criteria: (1) the rule exceeds the agency’s statutory authority, (2) the rule is ambiguous in its direction for regulated parties, and (3) the rule is not required for the agency to fulfill its statutory duty. House Bill 991 would broaden ALJs’ authority to declare rules that meet the three-part criteria void in all applications, not only with respect to a specific agency enforcement.

North Carolina’s ALJs serve as a central panel housed in the state Office of Administrative Hearings—meaning that they are not employed by the same state agencies whose internal enforcement actions they adjudicate. Some states and the federal government allow agencies to employ their own ALJs with certain safeguards in place aimed at protecting ALJ independence from agency influence.

House Bill 991 was pending in the House Judiciary Committee as of June 14.

Want to go deeper?

• State administrative law judge
• Sarah Stevens
• Taxonomy of arguments about administrative due process and procedural rights in the context of agency adjudication

New reports shed light on state-level administrative agencies 

What’s the story? 

Two new reports from state-level advocacy groups aim to serve as resources for citizens to better understand the role of administrative agencies within the Wisconsin and Mississippi state governments.

“The Citizen’s Guide to the Wisconsin Administrative State,” published by the Wisconsin Institute for Law and Liberty, examines how administrative agencies function within the state’s separation of powers framework, how agencies issue binding rules, and how Wisconsin citizens and the state legislature can hold agencies accountable. “As the administrative state has become increasingly ascendant in all aspects of our lives,” wrote authors Lucas Vebber and Eric Searing, “it has become more important than ever for everyday citizens to get involved, demand transparency, and provide the necessary oversight to hold bureaucrats accountable.”

“Drain the Swamp? The Administrative State in Mississippi,” published by the Mississippi Center for Public Policy (MCPP), examines 222 state government agencies and proposes solutions for elected officials to improve agency accountability. “[W]e discovered that there is a serious accountability deficit [in Mississippi],” said MCPP CEO and President Douglas Carswell. “Big, powerful bureaucratic organizations are able to impose rules and spend public money without meaningful accountability to the public.”

Want to go deeper?

• Five pillars of the administrative state: a 50-state survey

____________________________________________________________________________

Should agencies or courts interpret statutes?

A recent book review in The New York Review by administrative law scholar Cass Sunstein questions whether federal agencies or the judicial branch have the right to interpret statutes. Sunstein reviewed Columbia law professor Thomas W. Merrill’s new book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State. In his review, Sunstein weighed in on what he considers to be ominous judicial decisions that constrain federal agencies from addressing urgent social problems:

“Does the Centers for Disease Control and Prevention have the authority to impose a mask mandate on people who travel on planes, trains, and buses? In April a federal district court in Florida offered a clear answer: Absolutely not. The court gave an exceedingly narrow reading to the CDC’s powers under laws enacted by Congress. In the process, it sent an unmistakable signal: some conservative judges will not allow federal agencies to protect public safety and health unless Congress has unambiguously given them the authority to do so.

“That signal is ominous. In a period of congressional deadlock, federal agencies often have to take the lead in responding to urgent social problems. During the Covid-19 pandemic, many of the nation’s most important decisions about vaccinations, air travel, masks, social distancing, and more have been made by White House officials, the CDC, the Food and Drug Administration, and the Occupational Safety and Health Administration (OSHA). Policy responses to climate change have also primarily come from the White House, the Environmental Protection Agency (EPA), and other agencies.

“Because public policy is often made by administrative agencies, it can shift dramatically from one administration to another. Whether we are speaking about public health, civil rights, clean air, health care, food safety, tobacco, or immigration, fundamental policy judgments might well depend less on Congress than on who wins the presidency.”

Want to go deeper? 

• Click here to read the full text of “Who Should Regulate?” by Cass Sunstein. 

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56% of voters favor a proposal that would require congressional approval before federal agencies could issue binding regulations

​​A Scott Rasmussen national survey found that fifty-six percent (56%) of voters favor a proposal that would require congressional approval before federal agencies could issue legally binding regulations, including 22% who strongly favor it. Twenty-nine percent are opposed and 16% are not sure.

The survey also found that large majorities support reforms that would limit agencies’ power. Sixty-seven percent (67%) believe that Americans should have the right to a trial by jury before federal agencies can penalize them for violating regulations, 81% say that agencies should be required to provide individuals with an opportunity to respond before imposing penalties, and 74% favor a requirement that agencies reveal any evidence they possess that might help people contest that agency’s decisions.

Click here to visit Scott Rasmussen’s Number of the Day on Ballotpedia and view the questions posed to voters.

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Regulatory tally

Federal Register

• The Federal Register in May reached 32,964 pages. 
• The May Federal Register included 154 proposed rules and 265 final rules. These included changes to prices and mailing standards for competitive products and a fee increase for the Electronic System for Travel Authorization (ESTA), among other regulations.
• Want to go deeper? 
  • Click here to find more information about weekly additions to the Federal Register since 2017 
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2019 

Office of Information and Regulatory Affairs (OIRA)

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

• Review of 42 significant regulatory actions. 
• Six rules approved without changes; recommended changes to 33 proposed rules; two rules withdrawn from the review process; one rule subject to a statutory or judicial deadline.
• As of June 1, 2022, OIRA’s website listed 114 regulatory actions under review.
• Want to go deeper? 
  • Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules

Learn More