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 President Donald Trump’s (R) move to acquire citizenship information after federal judges blocked administration efforts to add citizenship status to the 2020 census; an upcoming United States Supreme Court (SCOTUS) case challenging the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program; and a recent SCOTUS ruling that both upheld and limited Auer deference.
At the state level, we highlight a new Indiana law that moves the state’s administrative law judges (ALJs) from agency control to a centralized panel, as well as a ruling from the Wisconsin Supreme Court upholding the state’s regulatory reform. We also present The Wall Street Journal’s interview with Judge Andrew Oldham of the United States Court of Appeals for the Fifth Circuit on his forthcoming paper examining the Anti-Federalists’ prescience on the rise of the administrative state.
As always, we wrap up with our Regulatory Tally, which features information about the 174 proposed rules and 262 final rules added to the Federal Register in June and OIRA’s regulatory review activity.
In Washington
Trump to collect citizenship information through executive order instead of 2020 census
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What’s the story? President Trump announced on July 11, 2019, that his administration would cease efforts to add a citizenship question to the 2020 U.S. census and instead direct federal agencies through executive order to provide the information to the U.S. Department of Commerce.
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Commerce Secretary Wilbur Ross approved the citizenship question for the 2020 U.S. census as necessary to improve enforcement of the Voting Rights Act. The proposed question would have asked, “Is this person a citizen of the United States?”
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The citizenship question was blocked by three federal district court judges on grounds that it violated the Constitution’s Enumeration Clause and the Census Act, and that the administration failed to follow proper procedure.
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By a vote of 5-4, the United States Supreme Court affirmed the legality of a citizenship question on the census but effectively barred the administration from including it by remanding the case, Department of Commerce v. New York, to the agency for review.
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The ruling invoked precedent from Citizens to Preserve Overton Park v. Volpe (1971) to evaluate agency decisions beyond the scope of the administrative record.
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The dissenting justices argued that the exception opens a new legal avenue for challengers to contest administrative actions based solely on alleged pretextual reasoning by agency decision-makers outside of the administrative record.
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SCOTUS agrees to decide whether administrative procedures must be followed to eliminate improperly issued rules
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What’s the story? The United States Supreme Court will determine whether the Trump administration can end the Deferred Action for Childhood Arrivals (DACA) program through a memorandum rather than rulemaking procedures after it granted certiorari on June 28 in Department of Homeland Security v. Regents of the University of California.
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The case could clarify whether federal agencies must follow the Administrative Procedure Act’s (APA) rulemaking procedures to end programs that were created without following APA procedures. Oral argument is scheduled for November 12, 2019.
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The Obama administration created DACA in 2012 to prevent the deportation of young people who were unlawfully brought into the country as children. The program was established through a memorandum rather than APA rulemaking procedures.
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The Trump administration on September 5, 2017, rescinded DACA, arguing that the program was unlawful because the Obama administration failed to follow APA rulemaking procedures.
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Regents of the University of California sued the administration for failing to follow the APA in rescinding the program.
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DHS argued, in part, that the decision to end DACA was exempt from APA rulemaking because it was improperly created.
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The United States District Court for the Northern District of California barred the administration from rescinding DACA. The administration appealed to the United States Supreme Court.
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SCOTUS upholds and limits Auer deference
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The opinion written by Justice Kagan set the following parameters for Auer deference:
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1. Auer deference applies only when a regulation is ambiguous. Courts must first consider the text, structure, history, and purpose of a regulation before deferring to an agency’s reasonable interpretation.
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2. Whether the reasonable agency interpretation of a regulation is an authoritative or official position of the agency.
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3. Auer deference is only appropriate for regulatory matters that fall within agency expertise.
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4. An agency’s interpretation must be a “fair and considered judgment” that does not create unfair surprise for those subject to the regulation. Moreover, courts should not defer to agency interpretations that were only adopted in order to assist the agency in a lawsuit.
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Justice Gorsuch authored a concurring opinion, joined by Justices Thomas, Alito, and Kavanaugh, that criticized the court for not invalidating Auer altogether, noting the court’s responsibility “to say what the law is and afford the people the neutral forum for their disputes that they expect and deserve.”
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The case Kisor v. Wilkie involved a marine veteran who challenged a U.S. Department of Veterans Affairs’ (VA) interpretation of a regulation that determined the effective date of retroactive disability benefits. The United States Supreme Court unanimously vacated and remanded the judgment of the Federal Circuit Court of Appeals, which had failed to consider whether the VA’s regulation had more than one reasonable meaning. The court instructed the Federal Circuit to reconsider its application of Auer deference in the case.
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In the states
Indiana moves ALJ supervision to centralized panel
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What’s the story? A new Indiana law shifted oversight of the state’s administrative law judges (ALJs) from state agency supervision to the Office of Administrative Law Proceedings (OALP), housed under the State Personnel Office.
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Proponents of Senate Enrolled Act 1223 say that the change protects the independence of ALJs by removing them from agency control.
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The OALP has the authority to hire and train ALJs, assign them to cases, and create and enforce a judicial code of conduct.
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Eleven agencies have ALJ systems that are governed by separate statutes and, therefore, are exempt from the change.
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Wisconsin Supreme Court affirms state REINS Act
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What’s the story? The Wisconsin Supreme Court on June 25 ruled 4-2 in Koschkee v. Taylor to affirm that the state’s Department of Public Instruction (DPI) must submit new rules to the governor for approval before they take effect.
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Wisconsin’s Regulations from the Executive in Need of Scrutiny (REINS) Act, the first state-level REINS Act signed into law in August 2017 by Governor Scott Walker (R), requires state agencies to obtain gubernatorial approval for proposed regulations.
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The Wisconsin Institute for Law and Liberty (WILL) sued former Superintendent of Public Instruction Tony Evers (D) and the DPI in November 2017 for allegedly violating the state REINS Act by failing to submit statements of scope for proposed rules to the State Department of Administration for approval.
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Evers and DPI argued that the state superintendent is a constitutional office not subject to gubernatorial control under the REINS Act.
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Koschkee v. Taylor affirmed that DPI exercises delegated legislative power when it promulgates rules and, therefore, its rulemaking activities are subject to control by the state legislature. By passing the REINS Act, the state legislature required DPI to obtain gubernatorial approval prior to promulgating new rules.
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How the Anti-Federalists foretold the rise of the administrative state
Judge Andrew Oldham of the United States Court of Appeals for the Fifth Circuit spoke to The Wall Street Journal for a July 3 article examining the Anti-Federalists’ views on the evolution of executive power. The Anti-Federalists, Oldham explained, were uneasy about far-reaching executive power. Oldham argues that, in many ways, the Anti-Federalists foresaw the development of the administrative state:
“Judge Oldham is impressed by the prescience of Anti-Federalist concerns ‘about the way executive power would evolve over time.’ In a forthcoming paper for the New York University Journal of Law & Liberty, he quotes the Anti-Federalist Cato (thought to be future Vice President George Clinton), who wrote that the presidency would ‘create a numerous train of dependents’ in the executive branch, so that the president would end up ‘surrounded by expectants and courtiers’—an aristocracy, which might be compared to today’s Washington elite.z“No one in the 18th century could predict the form the federal bureaucracy would take in the 20th century. Yet the Anti-Federalists’ concerns are telling. They worried about ‘the capaciousness of executive power,’ Judge Oldham says, comparing it to ‘the abuses of the past that they’d seen in England.’ The Federalists
countered that the separation of powers would prevent any part of the new federal government from becoming too powerful. The legislative, executive and judicial branches were coequal and would check and balance one another.
“Yet in recent decades, as Christopher DeMuth has written, ‘Congress has delegated its lawmaking powers: voting by lopsided margins for goals such as clean air and equality of the sexes, while leaving the hard choices—the real legislating—to specialized executive-branch agencies.’ These administrative agencies not only make rules but enforce and adjudicate them—carrying out the functions of all three governmental branches with nary a check.”
Click here to read the full article.
Regulatory tally
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The Federal Register in June reached 31,170 pages. The number of pages at the end of each June during the Obama administration (2009-2016) averaged 37,979 pages.
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The Federal Register included 174 proposed rules and 262 final rules during June 2019. The regulations included new car title loan regulations, restrictions on flights to Cuba, and updated international mail prices, among other rules.
OIRA’s June regulatory review activity included:
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Review of 37 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 47 significant regulatory actions each June.
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Recommended changes to 36 proposed rules.
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Agencies withdrew one rule from the review process.
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As of July 1, 2019, the OIRA website listed 125 regulatory actions under review.
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