The Checks and Balances Letter: April 2019
From Ballotpedia
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 a recent hearing before the U.S. Supreme Court on the legality of including a question on citizenship in the 2020 U.S. Census, the civil service reforms in the Trump administration's 2020 budget proposal, and highlights from oral arguments in a case challenging Auer deference.
At the state level, we note legal challenges from opponents of Wisconsin’s legislation to curb the power of state agencies as well as Colorado legislation allowing local governments to tighten the state’s oil and gas regulations. We also feature new insight into President Trump’s focus on reining in the administrative state by former White House counsel Don McGahn. As always, we wrap up with our Regulatory Tally, which features information about the 179 proposed rules and 257 final rules added to the Federal Register in March and OIRA’s regulatory review activity.
The Checks and Balances Letter
In Washington
SCOTUS hears oral arguments in APA challenge to census citizenship question
- What's the story? The U.S. Supreme Court heard oral arguments on April 23 in Department of Commerce v. New York, a case challenging the addition of a citizenship question on the U.S. Census. The question asks, “Is this person a citizen of the United States?”
- The court considered a constitutional argument against the question in addition to claims that the steps taken by the U.S. Department of Commerce to add the question violated administrative procedure under the Administrative Procedure Act (APA). The constitutional argument alleges that the citizenship question is unconstitutional because it prevents the federal government from carrying out its duty under the U.S. Constitution's Enumeration Clause to count every person living in the United States every 10 years, which could distort the proper apportionment of congressional representatives.
- The administrative procedure challenge claims that, according to the administrative record, the process followed by the agency to add the citizenship question to the census was arbitrary and capricious in violation of the APA.
- An analysis of the hearing by SCOTUSblog predicted a 5-4 decision to uphold the citizenship question with the justices divided along ideological lines. A ruling is expected in June.
- Find out more about Department of Commerce v. New York and the citizenship question in the February 2019 edition of Checks and Balances.
- Want to go deeper?
Civil service reforms in Trump’s 2020 budget proposal
- What's the story? President Donald Trump's (R) 2020 budget, released on March 11, 2019, proposes to “cull the approximately 5,000 statutory and regulatory rules that, over time, have created an incomprehensible, administratively burdensome, and unmanageable civil service system.”
- The reforms include streamlining the hiring and removal of federal employees as well as collective bargaining procedures (also addressed in Trump's civil service executive orders 13837, 13836, and 13839 issued in May 2018.)
- Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia struck down the bulk of the executive order provisions in August 2018 on the grounds that they conflict with civil service statutes. An appeal is currently pending before the United States Court of Appeals for the District of Columbia Circuit.
- Including the civil service proposals in the budget provides a legislative vehicle to enact the reforms.
- The federal civil service is made up an estimated 2.1 million civilian workers, 1.4 million active duty military personnel, one million military reserve personnel, and 500,000 postal service employees.
- Want to go deeper?
SCOTUS weighs agency authority to interpret regulations
- What's the story? The U.S. Supreme Court recently heard oral arguments in Kisor v. Wilkie, which centers on the deference long granted to regulators to interpret their own ambiguous rules (otherwise known as Auer deference). Kisor v. Wilkie involves a dispute between marine veteran James Kisor and the U.S. Department of Veterans Affairs (VA) over disability benefits for the PTSD he developed while serving in the Vietnam War.
- At issue is the VA’s decision to grant Kisor benefits effective as of 2006 instead of 1983—a decision based on the VA’s interpretation of its own regulations.
- Clinton-appointee Justice Stephen Breyer stated during oral arguments that overturning Auer deference “sounds like the greatest judicial power grab since Marbury v. Madison.” He claimed that, absent Auer, judges could make decisions that should be best left to experts in executive agencies.
- The line of questioning from Trump-appointee Justice Neil Gorsuch revealed a different view. He stated that federal law requires judges to decide all questions of law and that independent judges seemed to him “a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran” challenging an agency in court.
- Find out more about Kisor v. Wilkie and Auer deference in the March 2019 edition of Checks and Balances.
- Want to go deeper?
In the States
Four lawsuits challenge Wisconsin extraordinary session bills
- What's the story? Unions, interest groups, and individual private citizens are suing to block legislation that would curb the power of state agencies. The reforms were adopted during Wisconsin’s 2018 extraordinary session—a type of special legislative session that narrowly focuses on a specific issue—and signed by former Governor Scott Walker (R) on December 14, 2018.
- The bills, if upheld, would eliminate judicial deference to state agencies, abolish sue-and-settle practices, and set new standards for agencies’ regulatory guidance documents, among other provisions.
- In four separate lawsuits filed between December and February, opponents claim, among other issues: (1) state lawmakers unconstitutionally convened the extraordinary legislative session; (2) the legislation violates the separation of powers by increasing legislative authority over the executive branch; (3) the legislation violates the U.S. Constitution's Guarantee Clause, which guarantees every state the right to a republican form of government.
- The cases were either pending on appeal or awaiting arguments as of April 25, 2019.
- Check out the December 2018 issue of Checks and Balances for more information about the legislation passed during Wisconsin’s December 2018 extraordinary session.
- Want to go deeper?
Colorado legislators approve changes to oil and gas regulations
- What's the story? Democrats in the Colorado Legislature approved a bill on April 3 (with no Republican support) that would allow local governments to regulate oil and gas drilling and increase environmental and public health factors in permitting decisions. Colorado Governor Jared Polis (D) signed the legislation on April 16.
- The legislation would also expand the mission of the Colorado Oil and Gas Conservation Commission (COGCC)—the agency charged with regulating the state’s oil and gas industry—to include protecting public health, safety, and the environment.
- The bill would reduce the number of industry experts on the commission and increase the number of individuals with environmental and public health backgrounds.
- Opponents of the bill claim that the legislation will stifle oil and gas production in the state and inhibit economic growth. Proponents argue that the provisions will strengthen oversight, protect the environment, and support public health.
- Want to go deeper?
McGahn details President Trump’s focus on reining in the administrative state
New insight into President’s Trump focus on the administrative state was provided by former White House counsel Don McGahn while attending a luncheon with Republican Senate aides on April 4. According to Axios, which provided a summary of his thoughts at the luncheon, “McGahn said a big part of his job as White House counsel was to deregulate and rein in the ‘administrative state.’”
- “He said he did that by writing deregulatory executive orders and picking judicial nominees who wanted to limit the power of federal agencies.”
- “He talked about Trump nominating judges who agree that the courts have given too much flexibility to federal agencies to interpret laws and enforce regulations.”
- “McGahn said they looked for potential judges who wanted to reconsider the "Chevron deference," which requires the courts to defer to federal agencies' "reasonable" interpretations of ambiguous laws.”
- “McGahn said Trump's judges will spend 30–40 years unwinding the power of executive agencies.”
- “He said he did that by writing deregulatory executive orders and picking judicial nominees who wanted to limit the power of federal agencies.”
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Regulatory Tally
Federal Register
- The Federal Register in March reached 12,046 pages. The number of pages at the end of each March during the Obama administration (2009-2016) averaged 17,767 pages.
- The Federal Register included 179 proposed rules and 257 final rules during March 2019. The regulations included import restrictions on Honduran archaeological artifacts, new price regulations for skim milk, and new rules for swap transactions, among others.
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
- OIRA’s March regulatory review activity included:
- Review of 27 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 42 significant regulatory actions each March.
- Recommending changes to 23 proposed rules.
- As of April 1, 2019, the OIRA website listed 115 regulatory actions under review.
- Want to go deeper?
Footnotes
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