In this month’s edition of Checks and Balances, we review a federal agency’s proposal to sunset its regulations

 
 

[Checks and Balances by Ballotpedia]
 

 
 

 

 
** WELCOME TO CHECKS AND BALANCES
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** DECEMBER 2020
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delivers news and information from Ballotpedia’s Administrative State Project ([link removed]) , including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

In this month’s edition of _Checks and Balances_, we review a federal agency’s proposal to sunset its regulations; an Appointments Clause challenge to administrative law judges at the Social Security Administration; new policies at a federal agency aimed at minimizing redundant regulations and improving regulatory transparency; and the U.S. Court of Appeals for the Third Circuit’s rejection of certain deference practices. 

At the state level, we examine voters’ rejection of a Nevada ballot measure aimed at increasing legislative control of a state agency and the uncertain future of state COVID-related religious gathering restrictions. 

We also highlight new commentary examining midnight regulations and new findings from Ballotpedia’s survey of all 50 state constitutions and administrative procedure acts examining states that place the burden of proof on administrative agencies during adjudication. As always, we wrap up with our Regulatory Tally, which features information about the 172 proposed rules and 283 final rules added to the _Federal Register_ in November and OIRA’s regulatory review activity.
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** IN WASHINGTON
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Federal agency proposes to sunset regulations

* What’s the story? The U.S. Department of Health and Human Services (HHS) on November 4 published a proposed rule in the _Federal Register_ that would sunset all of the agency’s regulations. The sunset process would set a 10-year expiration date for each agency rule, with certain exceptions, unless the agency conducts a retrospective review to keep the rule in effect.
* HHS estimates that the agency would review 2,200 rules in the first two years if the proposed rule is finalized. In each following year, the agency estimates that it would conduct ongoing reviews of about 125 rules.
* "This is the biggest regulatory reform effort in the biggest regulatory agency,” HHS Chief of Staff Brian Harrison told reporters. "We're proposing a rule that will require regular review of regulations to ensure that they're up to date and delivering the promised benefits."
* Opponents of the proposal argue in part that retrospective review would burden coronavirus-focused agency staff. "If the staff working to crush the virus has to be diverted to justify and spend time dealing with regulations they would not want to sunset, it's a question of staff time that takes away from our ability to actually deal with the virus,” said Representative Frank Pallone (D-N.J.)
* Many state agency regulations are already subject to sunset provisions. A Ballotpedia survey of all 50 state constitutions and Administrative Procedure Acts (APA) found that 11 state APAs include sunset provisions for most administrative rules, while Arizona and Vermont have sunset provisions that kick in under certain circumstances.
* The proposed rule is open to public comment through January 4, 2021. 

* Want to go deeper?

* U.S. Department of Health and Human Services ([link removed])
* Sunset provision ([link removed])
* Agency dynamics: States with sunset provisions for administrative rules ([link removed])

U.S. Supreme Court agrees to hear Appointments Clause challenge to Social Security Administration adjudicators

* What’s the story? The U.S. Supreme Court on November 9 agreed to hear _Carr v. Saul_, a case concerning the president’s appointment and removal power and whether  Appointments Clause challenges must first be raised during administrative proceedings prior to review by an Article III court.
* The Social Security Administration (SSA) denied Willie Carr’s application for Social Security disability benefits and rejected his appeals. While his appeal in federal court was pending, the U.S. Supreme Court decided _Lucia v. SEC_, in which the court held that administrative law judges (ALJs) working for the Securities and Exchange Commission (SEC) were improperly appointed. 
* Carr amended his federal appeal to also argue that the SSA ALJ who decided his benefits case was improperly appointed. 
* A district court in Oklahoma ruled in Carr's favor, but the 10th Circuit reversed the district court’s decision, arguing that Carr could not raise the Appointments Clause challenge for the first time in federal court without previously presenting the challenge during the SSA’s administrative proceedings.
* The U.S. Supreme Court’s decision in the case will clarify whether judicial review requires challenges to first be raised during administrative proceedings.

* Want to go deeper?

* Carr v. Saul ([link removed])
* Appointment and removal power ([link removed]))
* Administrative law judge ([link removed])
* Lucia v. SEC ([link removed])

New federal agency policies aim to minimize redundant regulations and increase rulemaking transparency

 

* What’s the story? The U.S. Department of Health and Human Services on November 24 issued guidance ([link removed]) that establishes rulemaking policies aimed at minimizing redundant regulations and increasing transparency in agency rulemaking. 
* The first policy aims to minimize redundancies in HHS rulemaking by requiring the agency to ensure that new rules are consistent with, and do not overlap with, current agency regulations.
* The second policy aims to increase transparency in agency rulemaking by requiring that HHS make public any data underlying its policy analyses that would allow a third party to replicate its work, to the extent permitted by law. These data include working papers, calculations, models, references, and other information.
* “We are providing needed transparency by requiring the Department to show its math so the American people can know and challenge the methods government uses to calculate effects of regulations it imposes on them,” said HHS Chief of Staff Brian Harrison in a press release.
* Opponents of the public data policy argue that the change results in limiting agency discretion. 

* Want to go deeper?

* Guidance ([link removed]))
* Rulemaking ([link removed])

Third Circuit rejects judicial deference to agency commentary that expanded sentencing guidelines

* What’s the story? The U.S. Court of Appeals for the Third Circuit on December 1 ruled ([link removed]) unanimously in _U.S. v. Malik Nasir_ that courts should reject judicial deference to United States Sentencing Commission commentary that expands federal sentencing guidelines. 
* The case concerns the marijuana conviction of Malik Nasir and the decision to sentence him as a career offender using definitions found in agency commentary about federal sentencing guidelines.
* Judge Kent Jordan, a George W. Bush appointee, delivered the majority opinion, which overturned Nasir’s original sentence. Jordan disagreed with the Third Circuit precedent giving binding judicial deference to agency commentary expanding the scope of regulations.
* Jordan cited _Kisor V. Wilkie, _a 2019 U.S. Supreme Court decision that limited the scope of judicial deference to agency interpretations of their own regulations (_Auer _deference). Post-_Kisor_, Jordan argued that courts should only defer to agency interpretations of their own regulations when there is genuine ambiguity about the regulatory meaning. He argued that agency commentary cannot expand the scope of the sentencing guidelines established through notice-and-comment rulemaking.
* Jordan wrote, “If we accept that the commentary can do more than interpret the guidelines, that it can add to their scope, we allow circumvention of the checks Congress put on the Sentencing Commission, a body that exercises considerable authority in setting rules that can deprive citizens of their liberty.”
* Judge Stephanos Bibas, a Donald Trump appointee, agreed with the majority’s rejection of deference in the case and wrote a concurring opinion arguing that courts should interpret ambiguities in federal sentencing guidelines in favor of defendants. He wrote, “Courts play a vital role in safeguarding liberty and checking punishment. … [A]s _Kisor_ teaches, instead of deferring to the commentary the moment ambiguity arises, judges must first exhaust our legal toolkit.”

* Want to go deeper?

* Kisor v. Wilkie ([link removed])
* Judicial deference ([link removed])
* United States Court of Appeals for the Third Circuit ([link removed])
* Kent Jordan ([link removed])

 
 

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** IN THE STATES
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Nevada voters reject ballot measure that would have increased legislative control over state agency 

* What’s the story? Nevada voters on November 3 voted 50.15% to 49.85% not to adopt Nevada Question 1, a ballot measure that would have given the state legislature more control over the Nevada State Board of Regents. The Board of Regents is an elected executive agency that manages Nevada’s higher education system.
* According to the 2017 legislation that introduced the ballot measure, the Board of Regents “has, at various times, relied on its constitutional status and its authority to control and manage the affairs of the State University as a defensive shield and cloak against the people’s legislative check of accountability.” The legislation further argued that the board has acted at times to undermine the state legislature’s oversight of the Nevada System of Higher Education.
* The ballot measure would have removed references to the Board of Regents from the Nevada Constitution to ensure that the agency only operates via authority derived from statutes passed by the legislature.
* State Assemblyman Jim Wheeler (R), a supporter of the measure, argued, “Question 1 simply makes the Board of Regents a statutory body, subject to checks and balances—an important American principle.” 
* Board of Regents Member Laura E. Perkins, an opponent of the measure, argued, “There’s no numbers or positive proof that the system that may or may not come out of this is better than the system that we have now.”

* Want to go deeper?

* Nevada Question 1, Remove Constitutional Status of Board of Regents Amendment (2020) ([link removed]))
* Nevada State Board of Regents ([link removed])
* Nevada Constitution ([link removed])

State COVID-related religious gathering restrictions in jeopardy after SCOTUS ruling

* What’s the story? Coronavirus-related restrictions on religious gatherings in the states face an uncertain future after the United States Supreme Court temporarily blocked ([link removed]) such restrictions in New York and referred a case challenging similar restrictions in California back to a lower court.
* New York Governor Andrew Cuomo (D) set attendance limits on houses of worship in coronavirus hot spots designated as red and orange zones.
* The court on November 25 held 5-4 in _Roman Catholic Diocese of Brooklyn, New York v. Andrew Cuomo_ that the New York governor’s caps on the size of religious gatherings in red and orange zones violated the first Amendment. Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, Samuel Alito, and Clarence Thomas sided with the majority. Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer dissented.
* “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty,” wrote the majority in an unsigned opinion.
* In a concurring opinion, Justice Gorsuch argued, “It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”
* Justice Sotomayor, in a dissent joined by Justice Kagan, argued that the court is playing “a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.
* The court on December 3 referred ([link removed]) a case challenging similar restrictions in California back to the U.S. Court of Appeals for the Ninth Circuit, instructing the appeals court to remand the case to the district court for reconsideration in light of the New York decision.
* Want to go deeper?
* Andrew Cuomo ([link removed])
* Supreme Court Cases, October term 2020-2021 ([link removed])

 
 

 

 

 
** THE MIDNIGHT REGULATION PHENOMENON
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Susan Dudley, Director of The George Washington University Regulatory Studies Center, published recent commentary that examines the phenomenon of midnight rulemaking— informal rules that federal agencies adopt at the end of a presidential administration. 

Midnight regulations take their name from Cinderella, according to Boston University School of Law professor Jack Beermann. The ticking clock of a pending leadership change, reminiscent of Cinderella's magic disappearing at midnight, encourages executive agencies to accomplish as much of their regulatory agendas as possible before time runs out.

Dudley’s commentary highlights the following findings by George Washington University scholars regarding midnight regulations:

* “Sofie Miller and Daniel Perez found that presidents issue about three times as many regulations in their post-election quarter as they do in their earlier years in office. This holds regardless of party, and there is little reason to expect the Trump administration will behave differently than previous administrations.”
* “Jerry Ellig and coauthors have found that regulations issued during the midnight quarter tend to be supported by lower quality regulatory impact analysis. These hurried regulations may be motivated by a desire to achieve policies that might not have survived the checks and balances that restrain actions during normal periods, or to hamstring incoming officials with different policy goals.”

* Want to go deeper? 

* Click here ([link removed]) to read the full commentary.

 
 

 

 

 
** BALLOTPEDIA STUDY FINDS THAT TWO STATES PLACE THE BURDEN OF PROOF ON ADMINISTRATIVE AGENCIES IN ADJUDICATION
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A Ballotpedia survey of all 50 state constitutions and administrative procedure acts (APAs) concluded that two states have APAs with provisions that place the burden of proof on administrative agencies during adjudication, as of November 2020. 

* Two states have APAs with provisions that place the burden of proof on administrative agencies during adjudication.
* 48 states have APAs and constitutions that do not appear to place the burden of proof on administrative agencies during adjudication.

Ballotpedia also examined state APAs and constitutions that permit lawyers to represent parties during adjudication proceedings. View those results here ([link removed]) .

* Want to go deeper? 

Click here ([link removed]) to view the full results.

 
 

 

 

 
** REGULATORY TALLY
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Federal Register ([link removed])

* The _Federal Register_ in November reached 76,948  pages. The number of pages at the end of each November during the Obama administration (2009-2016) averaged 73,485 pages.
* The November _Federal Register_ included 172 proposed rules and 283 final rules. These included new life expectancy tables ([link removed]) from the Internal Revenue Service, the U.S. Fish and Wildlife Service’s removal ([link removed]) of the gray wolf from the list of endangered and threatened wildlife, and amendments ([link removed]) to the organization of the Executive Office for Immigration Review, among other rules.
* Want to go deeper? 
* Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017 ([link removed])  
* Click here to find yearly information about additions to the Federal Register from 1936 to 2016 ([link removed])  

 
Office of Information and Regulatory Affairs (OIRA) ([link removed])

OIRA’s November regulatory review activity includes:

* Review of 57 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 47 significant regulatory actions each November.
* Five rules approved without changes; recommended changes to 50 proposed rules; two rules withdrawn.
* As of December 1, 2020, OIRA’s website listed 147 regulatory actions under review.
* Want to go deeper? 

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules ([link removed])

 
 

 
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