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 edition, we review the Trump administration’s one-year update of its executive branch reorganization plan; a ruling from a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that puts President Donald Trump’s (R) civil service executive orders back on track; and a stay from the United States Supreme Court (SCOTUS) allowing the Trump administration to fund border wall projects.
At the state level, we explain Ohio’s new deregulation effort; Idaho’s further push for regulatory simplification; and a series of district court decisions blocking Medicaid work requirements in three states. We also highlight a draft paper from law professors Jonathan Adler and Christopher Walker examining the problem of agencies exercising outdated congressional delegations of authority to address modern policy concerns.
As always, we wrap up with our Regulatory Tally, which features information about the 227 proposed rules and 290 final rules added to the Federal Register in July and OIRA’s regulatory review activity.
In Washington
Trump administration’s one-year update on executive branch reorganization plan highlights actions by Congress, agencies
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What’s the story? The Trump administration on June 30 released a one-year update on the status of the administration’s executive branch reorganization plan.
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The reorganization plan—released in June 2018 pursuant to Executive Order 13871—seeks to consolidate and restructure several agencies as well as shift the administration of certain federal programs, such as the food stamps program, under different agencies. The full reorganization plan features 34 proposals.
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The Office of Management and Budget (OMB) estimated that implementation of the full plan would take three to five years.
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The one-year update includes the following highlights:
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Congress has considered at least 10 of the proposals through hearings, legislation, or discussions with members or staff. These include the passage of the Better Utilization of Investments Leading to Development (BUILD) Act, which consolidates the government’s development finance activities under the U.S. International Development Finance Corporation (USDFC), and the consideration of legislation to merge the Office of Personnel Management (OPM) into the General Services Administration (GSA).
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The Trump administration’s 2020 budget included all or part of 18 proposals, including changes to the business model of the United States Postal Service and funding to support the National Archives and Records Administration’s (NARA) transition to a fully digital environment.
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Agencies are implementing more than 20 of the proposals through existing authorities. These include planning efforts between the Bureau of Labor Statistics (BLS), the Bureau of Economic Analysis (BEA), and the Census Bureau to reorganize the BLS into the Department of Commerce (DOC) as well as a collaboration between the United States Department of Agriculture (USDA) and the United States Department of Health and Human Service (HHS) to address fragmented food safety oversight activities.
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The president has the authority to reorganize federal agencies within statutory limits. However, Congress must delegate reorganization authority in order for the president to implement statutory changes to agencies, which could otherwise only be realized through legislative action. Once the president presents a reorganization plan to Congress, members must issue a resolution of approval in order for the plan to take effect.
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Trump's civil service executive orders revived in appellate panel decision
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What’s the story? The Trump administration could soon implement the president’s three civil service executive orders after a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 16 unanimously reversed and vacated a lower court decision that blocked provisions of the orders.
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President Trump issued the executive orders (E.O. 13837, E.O. 13836, and E.O.13839) in May 2018. The orders include proposals designed to facilitate removal of poor-performing federal employees and streamline collective bargaining procedures.
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Federal labor unions, including the National Treasury Employees Union, challenged the executive orders in four consolidated lawsuits. The unions argued that the president does not have the authority to issue executive orders impacting labor relations; that the executive orders violate the Constitution’s Take Care Clause and the First Amendment right to freedom of association; and that the executive orders violate provisions of the Federal Service Labor-Management Relations Statute (FSLMRS).
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The appeals court panel held that the lower court did not have jurisdiction to rule on the merits of the executive orders. Instead, the unions should have brought the case before the Federal Labor Relations Authority (FLRA), as required by the FSLMRS.
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Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia ruled in August 2018 that the president is authorized to issue executive orders related to labor relations, but that the EOs unlawfully restricted the use of union official time in violation of the FSLMRS.
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Union officials have stated that they plan to seek a rehearing before the full D.C. Circuit.
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SCOTUS greenlights financing for border wall construction
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What’s the story? The United States Supreme Court on July 26 granted an application for stay allowing the Pentagon to use military funds to build a wall along the southern border of the United States while litigation challenging the use of the funds proceeds through the lower courts. The court ruled that groups objecting to the use of military funds for border wall projects failed to show that they have the right to challenge the Trump administration’s spending decisions in court.
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The stay temporarily blocked an injunction issued by Judge Haywood S. Gilliam Jr. of the United States District Court for the Northern District of California that prevented the Trump administration from diverting military funds to build sections of the border wall. The injunction will remain blocked until either the United States Court of Appeals for the 9th Circuit resolves the dispute, Trump v. Sierra Club, or the case comes before the United States Supreme Court.
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The court’s five Republican-appointed justices voted to grant the temporary stay on the injunction. The four Democrat-appointed justices dissented.
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The Sierra Club and the Southern Border Communities Coalition (SBCC) sued President Trump and members of his administration in February 2019. They argued that Trump administration officials should not be allowed to construct a barrier on the border using funds appropriated by Congress for the United States Department of Defense (DoD).
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Judge Gilliam issued the injunction in May 2019. Gilliam ruled that the Sierra Club and SBCC did not need a special right of action to ask for a court order to block executive actions they believed were beyond the executive branch’s legal authority. He held that the Administrative Procedure Act’s (APA) framework of judicial review did not apply in this case.
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In the states
Ohio budget codifies 2-for-1 regulatory requirements
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What’s the story? Ohio Governor Mike DeWine (R) signed a two-year budget on July 18 that requires state administrative agencies to cut two regulations for each new regulation issued.
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The new requirement mirrors President Donald Trump’s (R) Executive Order 13771, which requires federal administrative agencies to eliminate two existing regulations in order to promulgate a new rule.
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The state budget deal also requires each state agency to inventory its regulations.
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Idaho governor calls for further regulatory simplification, rulemaking changes
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What’s the story? Idaho Governor Brad Little (R) on July 19 proposed further reducing up to 60% of the state’s regulations by the end of 2019. Little already oversaw a regulatory reauthorization process that resulted in the simplification or expiration of roughly 34% of the state’s regulatory code earlier this summer after the state legislature failed to reauthorize the 8,200 pages of rules in April.
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Little directed agencies to simplify regulations by eliminating duplication rather than changing fundamental policies, which is the responsibility of the state legislature.
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Little announced on July 25 four changes to the state’s rulemaking process:
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1) The state must post all notices and schedules for public hearings related to rulemaking on a single website.
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2) Citizens may now subscribe to email updates from the Idaho Administrative Bulletin informing them when new rules are published.
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3) Agencies must include a cover sheet with new rules explaining the purpose of the rule, who is covered by the rule, and a point of contact for more information.
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4) Agencies must group the chapters of rules they administer under headings that are easy for the public to understand.
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Find out more about Idaho’s regulatory overhaul in the June 2019 edition of Checks and Balances.
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New Hampshire latest of three states to have Medicaid work requirements blocked by federal judge
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What’s the story? New Hampshire’s Medicaid work requirements were blocked on July 29 by Judge James Boasberg of the United States District Court for the District of Columbia. Broasberg likewise blocked Medicaid work requirements in Kentucky and Arkansas on March 27.
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The Trump administration announced in January 2018 that it would allow states to implement work requirements for Medicaid recipients by obtaining waivers from the United States Department of Health and Human Services (HHS).
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HHS approved work requirement waivers for all three states, which sought to require recipients to complete between 80-100 hours of paid or volunteer work each month in order to receive benefits. Medicaid enrollees filed suit in each of the states.
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Broasberg ruled that the HHS approvals were arbitrary and capricious because the department failed to adequately analyze the scope of the potential loss in Medicaid coverage recipients that could result from the change.
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Broasberg applied Chevron deference, a two-step doctrine that compels a federal court to defer to an agency’s reasonable interpretation of a statute, and found that the department’s interpretation of the Medicaid Act was unreasonable under Chevron Step Two because it didn’t reflect the program’s core objective of providing medical assistance to those unable to afford it.
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As of August 14, HHS had approved work requirements in six other states, and seven waiver applications were pending, according to a report from the Kaiser Family Foundation. No additional legal challenges had been filed as of August 14.
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Feature section
Law professors Jonathan Adler and Christopher Walker’s draft paper, “Delegation and Time,” argues that dated congressional delegations of authority to federal agencies are problematic because they do not address current policy concerns. Adler and Walker also explain that an agency’s exercise of authority granted years ago is inconsistent with democratic governance when that authority is exercised in ways not considered by Congress at the time of delegation. Adler provided the following example in a July 28 Reason article highlighting their paper:
“Consider the Clean Air Act (CAA) and its application to greenhouse gas emissions. Congress enacted the CAA's basic architecture in 1970, and made substantial revisions in 1977 and 1990. As originally constructed, the CAA focused most acutely on localized air pollution. What courts have identified as the "heart" of the Act are those provisions authorizing and enforcing ambient air quality standards in metropolitan areas. Relatively little of the CAA's core architecture concerned interstate air pollutants. Global climate change, in particular, was not yet a serious concern within Congress when the CAA was passed and amended, and there are no CAA provisions drafted with concerns like global climate change in mind.
“Nonetheless, seventeen years after Congress last revisited the CAA, in Massachusetts v. EPA, the Supreme Court concluded that the Act's definition of "air pollutant" was broad enough to encompass greenhouse gases, thus conferring upon the EPA the authority to address climate change. Whether the Court was correct to interpret the CAA in this fashion, this decision set in motion a series of regulatory initiatives that Congress never contemplated, let alone endorsed, and forced the EPA to retrofit a twentieth-century statutory regime to address a twenty-first century problem. The resulting mismatch between the CAA's architecture and the nature of both greenhouse gas emissions and resulting climate change has confounded the EPA and the courts since (see, e.g., UARG v. EPA).”
Adler and Walker propose that Congress should routinely reconsider statutes that delegate authority to administrative agencies. They also suggest the possibility of a new nondelegation doctrine that addresses the incongruity between delegation and time.
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To read Adler and Walker’s article “Delegation and Time,” click here.
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To read Adler’s article in Reason, click here.
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To read Ballotpedia’s compilation of reform proposals related to the nondelegation doctrine, including Adler and Walker’s proposals, click here.
Regulatory tally
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The Federal Register in July reached 37,562 pages. The number of pages at the end of each July during the Obama administration (2009-2016) averaged 45,217 pages.
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The July Federal Register included 227 proposed rules and 290 final rules. These included an Environmental Protection Agency rule for the protection of human research subjects, a Federal Communications Commission initiative to collect cell phone data for the national emergency broadcast system, and a tax increase on California-grown olives, among other rules.
OIRA’s July regulatory review activity included:
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Review of 51 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 53 significant regulatory actions each July.
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One rule approved without changes.
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Recommended changes to 45 proposed rules.
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Agencies withdrew five rules from the review process.
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As of August 8, 2019, the OIRA website listed 120 regulatory actions under review.
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