Tagchecks and balances

Checks and Balances November 2022

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. Supreme Court’s oral argument in cases concerning state regulatory authority and federal agency dynamics, as well as recent activity from the U.S. Court of Appeals for the Fifth Circuit, including a decision that deemed the Consumer Financial Protection Bureau’s funding structure unlawful.

At the state level, we take a look at Kansas voters’ rejection of a proposed constitutional amendment that would have allowed state legislative oversight of executive agency rules, and an Illinois legislative committee’s call for state agencies to return to normal rulemaking procedures.

We also highlight a dissent from Justice Neil Gorsuch highlighting Gorsuch’s objections to what he views as overbroad applications of Chevron deference. As always, we wrap up with our Regulatory Tally, which features information about the 141 proposed rules and 218 final rules added to the Federal Register in October and OIRA’s regulatory review activity.


In Washington

SCOTUS hears trio of constitutional challenges

What’s the story?

Since the last edition of Checks and Balances, the U.S. Supreme Court heard oral argument in three cases concerning interstate commerce, agency structure, and final agency action. 

The court on October 11, 2022, heard oral argument in National Pork Producers Council v. Ross, a case arguing that a California regulation prohibiting the sale of certain pork products in the state unconstitutionally affects interstate commerce. The regulation requires minimum space requirements for certain farm animals and prohibits the sale of products, including pork, from animals raised in facilities that do not meet those conditions. The National Pork Producers Council (NPPC) and American Farm Bureau Federation (AFBF) filed suit, arguing that the regulation effectively imposed California’s law on pork producers in other states in violation of the dormant commerce clause. After lower courts dismissed the case, plaintiffs appealed to the U.S. Supreme Court.

“Both conservative and liberal justices … seemed skeptical of California’s law … even as they expressed concerns about the implications of striking it down,” observed Emily Hoeven of CalMatters. Amy Howe of SCOTUSblog noted that several justices raised questions about how the law could affect “hypothetical state efforts to ban products from out-of-state companies that employ unauthorized immigrants, forbid labor unions, or refuse to fund certain types of health care.” Justice Elena Kagan, moreover, suggested sending the case back to the lower court for a trial on the merits.

The court on November 7, 2022, went on to hear oral argument in Axon Enterprise Inc. v. Federal Trade Commission and Securities and Exchange Commission (SEC) v. Cochran, two cases that question whether an agency must issue a final enforcement action before an individual subject to agency enforcement can raise challenges to the agency’s structure or processes in federal court. “Members of the court’s 6-3 conservative majority appeared sympathetic to the agencies’ challengers,” according to Reuters

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Fifth Circuit finds CFPB funding structure unconstitutional, denies rehearing in ALJ challenge

What’s the story?

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit on October 19, 2022, held in Community Financial Services Association of Texas Ltd. v. Consumer Financial Protection Bureau (CFPB) that the funding structure of the CFPB is unconstitutional in violation of the appropriations clause. Judges Don Willett, Kurt Engelhardt, and Cory T. Wilson found that the agency’s funding, which flows directly from the Federal Reserve rather than congressional appropriations, unconstitutionally insulates the agency from congressional oversight and public accountability.

Two groups representing payday lenders filed suit against the CFPB in 2018 to challenge a 2017 payday lending rule that aimed to limit the frequency of lenders’ withdrawals from borrowers’ bank accounts, arguing in part that the agency itself is unconstitutionally structured. The district court ruled in favor of the agency, but the Fifth Circuit panel vacated the rule since it was enacted via what the judges found to be the agency’s unconstitutional funding scheme.

“Wherever the line between a constitutionally and unconstitutionally funded agency may be, this unprecedented arrangement crosses it,” wrote Judge Wilson in the opinion. “The Bureau’s perpetual insulation from Congress’s appropriations power, including the express exemption from congressional review of its funding, renders the Bureau ‘no longer dependent and, as a result, no longer accountable’ to Congress and, ultimately, to the people.”

U.S. Senator Elizabeth Warren (D-Mass.), often credited with creating the CFPB, took to Twitter to call the opinion “a lawless and reckless decision,” adding that “extreme right-wing judges are throwing into question every rule the CFPB enforces to protect consumers and businesses alike.” In a response filed in a separate action, the CFPB argued that the “Fifth Circuit’s decision is without support in law.” The agency may choose to seek review by the full Fifth Circuit or appeal to the U.S. Supreme Court.

The full Fifth Circuit on October 21, 2022, denied a rehearing en banc in Jarkesy v. Securities and Exchange Commission (SEC). A three-judge panel of the court on May 18 found 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. The SEC had yet to respond to the denial as of November 21, 2022.

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In the states

Kansas voters reject proposal seeking legislative oversight of agency rules 

What’s the story? 

Kansas voters on November 8, 2022, rejected a legislatively referred constitutional amendment that would have allowed state lawmakers to revoke or suspend agency rules. The proposed amendment would have created a new Section 1 of the state constitution granting the state legislature “oversight of state executive branch agencies and officials by providing the legislature authority to establish procedures to revoke or suspend rules and regulations,” according to a legislative summary.

Unofficial results as of November 15, pending certification, found that 50.48% of Kansas voters rejected the amendment while 49.52% voted in its favor.

Attorney General Derek Schmitt (R) had previously argued that the proposal would strengthen legislative oversight of administrative agency rules. State Representative Dennis “Boog” Highberger (D), an opponent of the proposal, had referred to the amendment as “election-year grandstanding,” according to the Kansas Reflector.

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Illinois lawmakers object to emergency rule, call for return to normal rulemaking procedures

What’s the story? 

The Illinois General Assembly’s Joint Committee on Administrative Rules (JCAR) on October 18, 2022, passed a voice vote objecting to an emergency rule issued by the state Department of Public Health (IDPH). The rule aimed to address a shortage of forensic pathologists by waiving visa requirements to allow certain foreign forensic pathologists to practice in the state. 

The state legislature passed a law in 2021, which took effect on January 1, 2022, that waived visa requirements for forensic pathologists in order to address a shortage of qualified practitioners in the state. IDPH on September 18, 2022, issued an emergency rule to implement the law. JCAR members objected to the rule, arguing that the agency had sufficient time since the law’s enactment to issue the regulation through the standard rulemaking process, rather than through a last-minute emergency rule.

“The pandemic is over,” said state Rep. Steven Reick (R). “It is time for us to get back to normal way of doing business, and the normal rulemaking process should be the one that is used instead of emergency rulemaking when the time is available to do that.”

No JCAR members dissented to the voice vote, according to Capitol News Illinois. The agency must respond to the objection within 90 days.

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Gorsuch argues against broad applications of Chevron deference

Justice Neil Gorsuch on November 7, 2022, dissented from the U.S. Supreme Court’s decision not to take up Buffington v. McDonough, a case concerning veterans’ benefits issued by the U.S. Department of Veteran Affairs (VA). In his dissent, Gorsuch “suggested that the Chevron [deference] doctrine had been expanded well beyond its original intent, and as a result gives too much power to bureaucrats, at the expense of ‘ordinary Americans,’” according to SCOTUSblog analyst Amy Howe.

The following excerpt from Gorsuch’s dissent illustrates what Gorsuch considers to be the problems that arise for individuals when courts apply Chevron deference too broadly:

“Today, administrative law doesn’t confine itself to the regulation of large and sophisticated entities. Our administrative state ‘touches almost every aspect of daily life.’ Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 499 (2010). And often it is ordinary individuals who are unexpectedly caught in the whipsaw of all the rule changes a broad reading of Chevron invites. Mr. Buffington’s case illustrates the impact on disabled veterans. Those who left active service before the VA changed its rule received all their promised benefits; those who served later do not. Not because of any change in law, only a change in an agency’s view. So many other individuals who interact with the federal government have found themselves facing similar fates—including retirees who depend on federal social security benefits, immigrants hoping to win lawful admission to this country, and those who seek federal health care benefits promised by law.”

Want to go deeper

  • Click here to read the full text of Gorsuch’s dissent. 

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 43 significant regulatory actions. 
  • Five rules approved without changes; recommended changes to 35 proposed rules; three rules withdrawn from the review process.
  • As of November 1, 2022, OIRA’s website listed 116 regulatory actions under review.
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Checks and Balances, October 2022: Biden administration codifies DACA

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.


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.

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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.

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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.”

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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.

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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.

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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. 

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Regulatory tally

Federal Register

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.
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Checks and Balances: September 2022

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.

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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.

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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.

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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.

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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.

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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

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 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? 


Checks and Balances- August 2022

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?

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. 

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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

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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.”

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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.”

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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.

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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. 

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

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

  • Review of 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? 


Checks and Balances- July 2022

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.


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?

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.

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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.

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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 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.

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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

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? 



The Checks and Balances Letter, June 2022: Fifth Circuit finds constitutional flaws in SEC enforcement

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.


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.

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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?

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.

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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?

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?

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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

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?