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 Trump administration’s proposal to cut funding to the administrative state; the legal wrangling between Washington and the states over sanctuary policies; the latest development in the congressional backlash against Big Tech companies; and the ruling approving the T-Mobile/Sprint merger. Our feature this month explains a project by the General Services Administration (GSA) to ensure the authenticity of public comments submitted in the rulemaking process.
At the state level, we examine the legal challenge by the state of Texas against California’s “economic war” against states deemed unfriendly to LGBT rights; a lawsuit by 20 states against the Trump administration’s new rule on 3-D printed firearms; and the new twist in New York’s battle over real estate broker fees. As always, we wrap up with our Regulatory Tally, which features information about the 164 proposed rules and 235 final rules added to the Federal Register in January and OIRA’s regulatory review activity.
In Washington
Trump proposes to shrink administrative state
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Budget experts at the Heritage Foundation report that President Donald Trump’s (R) proposed budget for fiscal year 2021 “would reduce the size and reach of the federal bureaucracy significantly.”
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The budget released on February 10 includes $4.4 trillion in proposed spending cuts over 10 years, of which $1.9 trillion targets waste, duplication, and overlap in non-defense discretionary programs, as well as programs that “have no proper federal role,” according to the Heritage analysts. Although such cuts won’t balance the budget, they would help to decrease the size and scope of the administrative state.
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The budget does not significantly rein in entitlement programs such as Social Security and healthcare, which are the primary sources of spending and debt growth. The Congressional Budget Office has projected that annual Medicare, Medicaid, and Social Security spending will consume 59 percent of federal revenues by 2030.
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The president’s budget also proposes $740.5 billion in defense spending, which represents an increase of $2.5 billion (0.3%) compared to 2020.
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Power struggles over immigration enforcement intensify
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In a conflict rooted in federalism, the Trump administration is suing the states of New Jersey and California, as well as Washington state’s King County, over sanctuary policies that limit state and local assistance in enforcing federal immigration law.
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New Jersey’s Immigrant Trust Directive, issued in 2018 by state Attorney General Gurbir Grewal (D), bars law enforcement officials from cooperating with U.S. Immigration and Customs Enforcement, including detaining suspects in county jails.
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The Justice Department filed suit against the state of California, Gov. Gavin Newsom (D), and state Attorney General Xavier Becerra (D) over a new state law that bans private detention facilities, which are used by the Department of Homeland Security.
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The administration is also suing King County, Washington, which encompasses Seattle, to overturn an order from County Executive Dow Constantine that prohibits use of the county airport for deportation flights.
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Meanwhile, the Trump administration on February 4 suspended New Yorkers’ enrollment in trusted traveler programs because state law blocks federal immigration authorities from accessing motor vehicle records. New York's “Green Light” law allows immigrants residing in the country without legal permission to apply for driver's licenses, and prohibits the Department of Motor Vehicles from sharing information with federal immigration authorities (unless under court order).
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The Trump administration contends that the prohibition prevents them from vetting applicants for trusted traveler programs intended to expedite international travel screening. New York officials argue that the move is political retribution.
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Consigning Big Tech to the administrative state
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Missouri Republican Senator Josh Hawley has come up with another idea to address Big Tech.
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In addition to seeking speech regulation of Internet platforms and restraints on scrolling, the senator is now proposing that the independent Federal Trade Commission (FTC) be absorbed by the more politicized U.S. Department of Justice (DOJ).
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Dissatisfied with the FTC’s handling of tech-related antitrust matters, the senator wants to eliminate the independent commission and consolidate its antitrust functions with the DOJ.
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Meanwhile, some House Democrats are proposing the creation of a new federal agency to police online privacy.
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Feds prevail over states in merger dispute
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The $26 billion merger of T-Mobile and Sprint has been approved after a court fight waged by attorneys general of 13 states and the District of Columbia.
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Judge Victor Marrero of the U.S. District Court for the Southern District of New York concluded that T-Mobile’s takeover of Sprint would not substantially weaken competition in the wireless market.
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The merger is predicated on an agreement brokered by federal regulators to set up Dish Network Corporation as a new cellular service provider. The deal was previously approved by the U.S. Department of Justice and the Federal Communications Commission, but the coalition of Democrat-led states challenged the merger, which still must be approved by California’s Public Utility Commission.
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In the states
Economic war between the states
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The state of Texas is challenging the constitutionality of California's interstate travel ban that prohibits state-funded travel to states that fail to sufficiently protect LGBT rights.
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Texas is included on the prohibited list because of the state’s protection of religious freedom.
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The Texas lawsuit asserts that the travel ban violates the U.S. Constitution’s Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. In its complaint, filed in the U.S. Supreme Court’s original jurisdiction, the state of Texas characterizes California’s economic sanctions as “tools of war that traditionally justify a belligerent response. California has chosen to use those tools against fellow States in the Union.”
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According to Josh Blackman, a constitutional law professor at the South Texas College of Law, the case presents “an important question of national significance: can states begin to erect retaliatory economic sanctions against each other.”
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Dueling over firearms jurisdiction
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Twenty states and the District of Columbia are challenging a new regulation by the Trump administration that they claim will allow the online posting of blueprints for making guns on 3D printers.
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The rule, published in the Federal Register on January 23, transfers regulatory authority for 3D printed guns and other firearms from the U.S. Department of State to the U.S. Department of Commerce.
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The administration asserts that the rule does not deregulate the firearms for which jurisdiction is being transferred. Regulatory oversight will continue to be exercised over exports, reexports, and transfers (in- country) of all relevant arms. Instead, the transfer is intended to align the State Department’s jurisdiction to firearms and ammunition that have an inherently military function.
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According to the Department of Commerce, “Certain software and technology capable of producing firearms when posted on the internet under specified circumstances is being controlled under this final rule in order to protect important U.S. national security and foreign policy interests; however, communication of ideas regarding such software or technology is freely permitted.”
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The lawsuit alleges that the Trump administration violated the Administrative Procedure Act in issuing the rule, and the regulation will make it easier to publish blueprints for 3-D printing of weapons.
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Brokering bureaucratic power
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New York real estate brokers will continue to collect fees after Judge Michael Mackey of the New York Supreme Court 3rd Judicial District issued an order halting a ban on such broker fees. The temporary restraining order provides a reprieve for thousands of brokers whose business is threatened by the change.
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The Real Estate Board of New York and the New York State Association of Realtors filed suit against the New York Department of State, which recently barred rental brokers working for landlords from requiring new tenants to pay broker fees when signing a lease. Brokers hired by tenants are exempt.
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A hearing for an injunction is expected to be scheduled next month.
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Broker fees in New York can run up to 15 percent of a year’s rent. The fee ban was inserted in a guidance document on new laws of 2019 issued by the New York Department of State.
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Addressing mass and fake public comments in agency rulemaking
The General Services Administration (GSA) held a public meeting on January 30, 2020, to address the issues presented by mass and fake public comments submitted in the rulemaking process. Panelists from federal agencies, academia, and the private sector came together to initiate a conversation around strategies for GSA to ensure the authenticity of public comments.
Mass comments refer to “collections of identical and near-duplicate comments sponsored by organizations and submitted by group members and supporters,” according to a recent paper by Professor Steve Balla of The George Washington University’s Regulatory Studies Center. Fake comments, on the other hand, are generally submitted using a fraudulent identity.
The combination of mass and fake comments can pose a significant challenge for agencies. For example, the Federal Communications Commission’s (FCC) 2017 rulemaking on net neutrality received 22 million public comments via mass comment campaigns. A study by the Pew Research Center found that only 6% of the comments submitted were unique. Moreover, 57% of the comments received were submitted using fake or unverified identities.
GSA’s meeting ultimately concluded that not enough is known about mass and fake public comments to make policy decisions at this time. Instead, more research is needed to assist GSA in its efforts to mitigate the impact of mass and fake public comments across federal agency rulemakings.
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Click here for commentary on the meeting from The George Washington University’s Regulatory Studies Center.
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Click here to view Professor Balla’s recent paper.
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Click here to view the study by the Pew Research Center.
Regulatory Tally
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The Federal Register in January reached 5,902 pages. The number of pages at the end of each January during the Obama administration (2009-2016) averaged 5,617 pages.
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The January Federal Register included 164 proposed rules and 235 final rules. These included a rule denying visas to women intending to give birth in the United States, rules concerning the classification of radiological medical devices, and a rule adjusting international postage prices, among others.
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OIRA’s recent regulatory review activity includes:
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Review of 31 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 46 significant regulatory actions each January.
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One rule approved without change; recommended changes to 28 proposed rules; two rules withdrawn.
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OIRA reviewed 17 significant rules in January 2019, 20 significant rules in January 2018, and 87 significant rules in January 2017.
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As of February 3, 2019, OIRA’s website listed 129 regulatory actions under review.
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