Plus, a New Hampshire woman's victory over a humorless bureaucracy.
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_THE CHECKS AND BALANCES LETTER_ 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.

_THIS EDITION_:

In this edition, we review the Trump administration’s tighter restrictions on U.S. residency for immigrants who have been or are likely to become “public charges” (e.g., recipients of income assistance, or in need of public health, nutrition or housing services); stricter standards from the U.S. Department of Education for forgiveness of federally backed student loans; and the loss of a quorum at the Federal Election Commission. At the state level, we examine a constitutional challenge to Arizona’s process for registering child abusers; a proposal from the Maryland governor to shift responsibilities for compensating wrongly incarcerated individuals from an elected board to state administrative law judges; and a New Hampshire woman’s victory over a humorless bureaucracy. 

As always, we wrap up with our Regulatory Tally, which features information about the 196 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.
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** IN WASHINGTON
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** TRUMP ADMINISTRATION RESTRICTS ADMISSIBILITY OF IMMIGRANTS NEEDING PUBLIC ASSISTANCE
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WHAT’S THE STORY? The Department of Homeland Security (DHS) on August 12 published a final rule ([link removed]) that details how federal agencies are to determine the inadmissibility of aliens who have been or are likely to become “public charges” (e.g., dependent on public assistance). 

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The new rule replaces a 1999 guidance document that applied the term “public charge” only to receipt of cash assistance for income maintenance or institutionalization for long-term care at taxpayer expense.

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The Immigration and Nationality Act renders inadmissible (i.e., ineligible for admission, a visa or adjustment of status) any alien who is likely at any time to become a “public charge.” However, Congress did not define the term in the statute. The rule is scheduled to take effect on October 15, 2019.

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WANT TO GO DEEPER?

* U.S. Department of Homeland Security ([link removed])
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U.S. Citizenship and Immigration Services ([link removed])

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Guidance ([link removed]))

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Rulemaking ([link removed])

 
** DEVOS TIGHTENS STANDARDS FOR STUDENT LOAN FORGIVENESS
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WHAT’S THE STORY? The U.S. Department of Education on August 30 announced a new final rule ([link removed]) to prevent student loan fraud and restrict forgiveness of federally backed loans.

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Under the previous rule adopted by the Obama administration, the department forgave about $222 million owed by 20,000 borrowers. 

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The new rule restricts loan forgiveness to cases of schools knowingly making fraudulent or misleading statements about loans to students. The previous, looser standard allowed loan forgiveness for school statements  with a “likelihood or tendency to mislead.” 

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The new rule also eliminates the discharge of loans in the event a school closed before borrowers completed their degree. 

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Department officials estimate that the new rule will reduce loan forgiveness by $512 million annually, and save taxpayers $11.1 billion over the next decade.

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Critics say the new rule will make it harder for defrauded students to obtain loan forgiveness. 

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WANT TO GO DEEPER?

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Check out our previous coverage of this story in the January edition of The Checks and Balances Letter  ([link removed])

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Betsy DeVos ([link removed])

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U.S. Department of Education ([link removed])

 
** FEC LACKS QUORUM  
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WHAT’S THE STORY? The Federal Election Commission (FEC) lacks the quorum of members necessary to oversee campaign finance disclosures, perform audits or enforce fundraising violations following the August 31 resignation of Vice Chairman Matthew Petersen (R).

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Petersen did not specify a reason for his resignation. His departure left the six-member commission with only three members: Chairwoman Ellen Weintraub (D), Steven Walther (I), and Caroline Hunter (R). Vacancies created by the resignations of commissioners Ann Ravel (D) in February 2017 and Lee Goodman (R) in February 2018 have yet to be filled. President Trump’s 2017 nominee to fill one vacant seat has not been voted upon by the U.S. Senate (as of August 2019).  

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An August 27th statement by Weintraub said that FEC staff will continue to make campaign finance documents available to the public and issue recommendations regarding campaign finance complaints. However, the commission will be unable to vote on the recommendations until a quorum is re-established. 

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WANT TO GO DEEPER?

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Federal Election Commission ([link removed])

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Appointment and removal power ([link removed]))

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Independent federal agency ([link removed])

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** IN THE STATES
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** GROUP CHALLENGES CONSTITUTIONALITY OF ADMINISTRATIVE REVIEW BY ARIZONA STATE AGENCY 
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WHAT’S THE STORY? The New Civil Liberties Alliance, a public interest law firm focused on the administrative state ([link removed]) , is challenging the constitutionality of Arizona’s process for registering child abusers. 

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The case involves a defendant who was placed on the registry by Director Gregory McKay, of the state’s Department of Child Safety, despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law does permit the DCS director to substitute his own judgment for that of the ALJ.  

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The New Civil Liberties Alliance is challenging the low standard of proof (probable cause) in the review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings. 

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NCLA aims to stay the DCS decision in order to prevent the defendant from being listed on the child abuser registry until he has received a fair trial.

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WANT TO GO DEEPER?

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New Civil Liberties Alliance ([link removed])

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Administrative law judge ([link removed])

 
** MARYLAND GOVERNOR PROPOSES SHIFTING RESPONSIBILITIES TO ALJS
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WHAT’S THE STORY? Maryland Governor Larry Hogan (R) on September 4 proposed that  state administrative law judges (ALJ), rather than the Board of Public Works, should be tasked with awarding compensation to wrongly incarcerated individuals. Hogan later directed the board counsel on September 18 to work with the state’s chief ALJ to devise a compensation process.

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The Board of Public Works is made up of three elected officials: the governor, the state comptroller, and the state treasurer. State law authorizes the board to compensate wrongly incarcerated individuals. However, the board has not done so since the last wrongly incarcerated individual received compensation in 2004. 

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Hogan argued that state ALJs are more qualified than the members of the Board of Public Works to make compensation determinations because the board lacks the “expertise, capacity [and] personnel” to evaluate damages, pain, and suffering.

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Five wrongly incarcerated men have petitioned the board for compensation over the last 19 months. Lawyers have asked the board to award $100,000 to each man for each year he spent behind bars for a total of roughly $12 million.

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WANT TO GO DEEPER?

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Larry Hogan ([link removed])

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Maryland Comptroller ([link removed])

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Maryland Treasurer ([link removed])

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State administrative law judge ([link removed])

 
** MOTHER OF FOUR DEFEATS BUREAUCRATS IN LIVE-FREE-OR-DIE STATE
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WHAT’S THE STORY? New Hampshire resident Wendy Auger refused to bow to the state Division of Motor Vehicles which ordered her to surrender her 15-year-old vanity license plate, PB4WEGO.

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Auger received a letter in mid-August informing her that the plate violated a state administrative rule that prohibits phrases related to "sexual or excretory acts or functions."

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Auger argued that the phrase was intended to be humorous rather than offensive.

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After Auger’s story gained media attention, Governor Chris Sununu (R) “strongly urged” the DMV to back off, and Auger was allowed to keep the license plate.

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WANT TO GO DEEPER?

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New Hampshire ([link removed])

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Chris Sununu ([link removed])

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** SYMPOSIUM ON BENDING THE RULES: _PROCEDURAL POLITICKING IN THE BUREAUCRACY_
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The _Yale Journal on Regulation_ hosted a web symposium on Professor Rachel Potter’s new book, _Bending the Rules: Procedural Politicking_ in the Bureaucracy. Participants offered commentary and critiques on the book’s content, including the following from the University of Chicago Press:

“With _Bending the Rules_, Rachel Augustine Potter shows that rulemaking is not the rote administrative activity it is commonly imagined to be but rather an intensely political activity in its own right. Because rulemaking occurs in a separation of powers system, bureaucrats are not free to implement their preferred policies unimpeded: the president, Congress, and the courts can all get involved in the process, often at the bidding of affected interest groups. However, rather than capitulating to demands, bureaucrats routinely employ “procedural politicking,” using their deep knowledge of the process to strategically insulate their proposals from political scrutiny and interference. Tracing the rulemaking process from when an agency first begins working on a rule to when it completes that regulatory action, Potter shows how bureaucrats use procedures to resist interference from Congress, the President, and the courts at each stage of the process. This exercise reveals that unelected bureaucrats wield considerable influence over the direction of public policy in the United States.”

The following scholars contributed to the symposium:

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Bridget Dooling (The George Washington University Regulatory Studies Center)

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Bernard Bell (Rutgers, The State University of New Jersey, Law School)

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Jennifer Nou (University of Chicago Law School)

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Christopher Carrigan (The George Washington University, Trachtenberg School of Public Policy & Public Administration)

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Andrew Rudalevige (Bowdoin College, Department of Government and Legal Studies)

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Emily Bremer (University of Notre Dame Law School)

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Chris Walker (The Ohio State University, Moritz College of Law)

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Stuart Shapiro (Rutgers, The State University of New Jersey, Bloustein School of Planning and Public Policy)

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Rachel Potter (University of Virginia, Woodrow Wilson Department of Politics)

Click here ([link removed]) to view the symposium archive.

Click here ([link removed]) for Potter’s response to the symposium.

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** REGULATORY TALLY
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**
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** _FEDERAL REGISTER ([link removed]) _
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_The Federal Register _in August reached 45,872 pages. The number of pages at the end of each August during the Obama administration (2009-2016) averaged 53,208 pages.

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The August _Federal Register_ included 196 proposed rules and 290 final rules. These included a rule from the U.S. Department of Homeland Security ([link removed]) denying entry to immigrants deemed potential public charges, a rule from the Federal Communications Commission ([link removed]) aimed at modernizing the 1990 Children’s Television Act, and a rule from the National Park Service ([link removed]) designating a new airstrip in Death Valley, among others.

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WANT TO GO DEEPER? 

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Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017 ([link removed])  

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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])
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OIRA’s August regulatory review activity included:

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Review of 48 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 53 significant regulatory actions each August.

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Recommended changes to all 48 proposed rules.

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As of September 3, 2019, the OIRA website listed 123 regulatory actions under review.

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WANT TO GO DEEPER? 

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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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This Checks and Balances newsletter is part of Ballotpedia's Administrative State Project, a nonpartisan encyclopedic resource that also features the latest data on federal regulatory activity, including a rolling page count of the Federal Register and the volume of rulemaking.

You can view an index of these pages here ([link removed]) . View the pages and you will come away knowing the difference between the _administrative state_, the _regulatory state_, and the _dark state_—and so much more. New entries to our encyclopedia are added weekly.
BALLOTPEDIA DEPENDS ON THE SUPPORT OF OUR READERS.

The Lucy Burns Institute, publisher of Ballotpedia, is a 501(c)(3) nonprofit organization. All donations are tax deductible to the extent of the law. Donations to the Lucy Burns Institute or Ballotpedia do not support any candidates or campaigns.
 

Click here to support our work ([link removed])
 
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