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Welcome to Checks and Balances
April 2021
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 month’s edition of Checks and Balances, we review the six resolutions of disapproval filed under the Congressional Review Act that could nullify regulations issued in the final months of the Trump administration. We also review judicial activity affecting federal employee removal protections and applications of Chevron deference to agency interpretations of criminal statutes.
At the state level, we take a look at a Connecticut judge’s opinion supporting legislative oversight of executive emergency powers; a veto override from the Ohio General Assembly enacting legislation limiting the governor’s emergency powers; a legislative proposal in Idaho that would allow state lawmakers to veto certain federal government actions; and new limits on judicial deference in Georgia tax cases.
We also highlight a new paper examining the recent increase in agency leadership positions held by former congressional staff. As always, we wrap up with our Regulatory Tally, which features information about the 262 proposed rules and 277 final rules added to the Federal Register in March and OIRA’s regulatory review activity.
In Washington
Democrats file six CRA resolutions aiming to block Trump-era agency rules
- What’s the story? Democratic members of Congress introduced six resolutions of disapproval under the Congressional Review Act (CRA) prior the April 4 deadline. The resolutions create a path for lawmakers to review federal rules issued during the final months of the Trump administration (after August 21, 2020) and vote to reject them.
- To reject a rule, both chambers of Congress must pass a resolution disapproving the rule and President Joe Biden (D) must sign the resolution into law.
- The CRA authorizes the U.S. Senate to fast-track the resolutions through the legislative process. In order to avoid any legislative delay tactics, senators must take action to fast-track the resolutions before the deadline, estimated to occur in mid-to-late May according to The George Washington University’s Regulatory Studies Center.
- The six resolutions of disapproval seek to block the following agency regulations:
- An October 2020 rule from the U.S. Comptroller of the Currency (OCC) that aims to determine when banks are the true lender in situations where banks provide the money for third-party organizations to extend credit to borrowers.
- A November 2020 rule from the U.S. Securities and Exchange Commission (SEC) that changed regulations governing shareholder proposal submissions.
- An Environmental Protection Agency (EPA) rule from September 2020 that reversed the Obama administration's methane standards.
- An Equal Employment Opportunity Commission (EEOC) rule changing the conciliation process (an alternative to litigation).
- A sunset rule from the U.S. Department of Health and Human Services (HHS) that sets expiration dates for HHS regulations unless the agency reviews those regulations according to Regulatory Flexibility Act requirements.
- A November 2020 rule from the Social Security Administration that aims to clarify when administrative appeals judges on the Social Security Administration Appeals Council may hold hearings and issue decisions.
- Since the CRA's enactment in 1996, Congress has repealed 17 out of the more than 90,000 rules published in the Federal Register. Sixteen of those instances occurred during the Trump administration. In 2001, during George W. Bush's (R) presidency, Congress reversed an Occupational Safety and Health Administration rule issued during Bill Clinton’s (D) presidency.
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Sixth Circuit narrows Chevron deference
- What’s the story? A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on March 25 limited applications of Chevron deference in the criminal context in its Gun Owners of America v. Garland decision, which invalidated the Trump administration’s bump stock ban.
- The court declined to apply Chevron deference to the Bureau of Alcohol, Tobacco, and Firearm's statutory interpretation supporting the agency’s rule that allowed bump stocks to be classified as machine guns. The court held that Chevron deference did not apply because the law in question was a criminal statute. The court also found that the district court should have permitted the plaintiffs’ request for an injunction to block the rule.
- “Consistent with our precedent and mandated by separation-of-powers and fair-notice concerns,” wrote Judge Alice Batchelder in the opinion, “we hold that an administering agency's interpretation of a criminal statute is not entitled to Chevron deference.”
- Judge Eric Murphy joined Judge Batchelder in the opinion. Judge Helene White dissented.
- Judge White disagreed with the court’s limitation on Chevron deference. “The Supreme Court has applied Chevron in the criminal context in three binding decisions—Chevron itself, Babbitt, and O'Hagan—and has never purported to overrule those cases,” she wrote.
- The court remanded the case to the district court and eliminated the possibility of a nationwide injunction by limiting any subsequent injunctions to the four states within the Sixth Circuit.
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Federal Circuit raises standard to remove federal employees
- What’s the story? The U.S. Court of Appeals for the Federal Circuit on March 11 set a new bar for firing federal agency employees in the case Santos v. National Aeronautics and Space Administration (NASA).
- The court found that NASA failed to provide justification for placing its employee, Fernando Santos, on a Performance Improvement Plan (PIP). An agency generally issues a PIP as a signal to a poor performing employee before initiating disciplinary action.
- The three-judge panel (Judges Kathleen O’Malley, William Bryson, and Todd Hughes) ruled that federal law requires agencies to justify the issuance of a PIP when a fired employee challenges a PIP-based removal. Prior to the court’s decision, agencies had not been required to justify the use of a PIP.
- “Allowing a PIP to serve as the pre-removal notice required by Section 4303 is not the same as allowing the mere fact of a PIP to create a presumption that the pre-PIP conduct was actually unacceptable,” wrote Judge O’Malley in the opinion. “Thus, we hold that, once an agency chooses to impose a post-PIP termination, it must prove by substantial evidence that the employee’s unacceptable performance ‘continued’—i.e., it was unacceptable before the PIP and remained so during the PIP.”
- The judges remanded the case to the Merit Systems Protection Board for further proceedings.
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In the States
Connecticut judge calls for legislative oversight of governor’s emergency powers
- What’s the story? Connecticut Superior Court Judge Thomas Moukawsher on March 8 issued a decision that upheld the state’s mask mandate for school children while also calling for legislative oversight of the governor’s emergency actions.
- Moukawsher stated that, in his view, the Connecticut Constitution does not allow the Connecticut General Assembly to delegate legislative power—including emergency power—to the governor without placing limits on such authority.
- Moukawsher claimed that state law must include a method for the general assembly to disapprove of the governor’s orders, that the general assembly must ratify or reject the governor’s existing orders, and that current law requires the general assembly to renew the governor’s emergency authority after six months.
- The effect of Moukawsher’s decision depends on the Connecticut Supreme Court’s forthcoming written opinion in the December 2020 case Casey v. Lamont, in which the court upheld Governor Ned Lamont’s (D) executive order on bar closures. The court had yet to issue a written opinion in the case as of April 7, but its anticipated opinion is expected to include guidance that could affect Moukawsher’s holding.
- “This court believes that the Governor likely cannot continue to carry out his emergency orders without some form of ratification and control from the General Assembly,” wrote Moukawsher, “But matters affecting this issue are currently before the Connecticut Supreme Court. Whether this court may act in any way on this question or what way it may act will doubtless be influenced by the pending decision.”
- Lamont indicated that he would allow his emergency powers to expire after April 20 and would work with legislators to continue any executive orders deemed necessary. “Right now my EO’s are in place,” said Lamont at a news conference. “If anyone wants to counter them, I’m willing to listen, and then on April 20 the legislature will step in and make some determinations.”
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Ohio lawmakers override governor’s veto to implement legislative oversight of emergency actions
- What’s the story? The Ohio General Assembly on March 24 voted to override Governor Mike Dewine’s (R) veto of a law aimed at increasing legislative oversight of the governor’s emergency powers.
- Senate Bill 22 places a 90-day limit on states of emergency. It also authorizes lawmakers to pass resolutions to terminate a state of emergency after 30 days and to reject any executive orders related to the emergency.
- The House of Representatives approved the veto override by a 62-35 vote. The Senate approved the veto override by a 23-10 vote. Both votes occurred largely along party lines with three Republicans joining Democrats in opposition.
- Dewine expressed concerns about the legislation in his March 23 veto statement, including what he views as the potential unconstitutionality of reversing executive orders through resolutions and the potential prevention of local health boards from quarantining people exposed to deadly diseases.
- Speaker of the House Bob Cupp (R) stated that the Ohio legislation updates the state statute to align with similar processes in 26 other states. "We have a very old statute, and the pandemic sort of brought that to light,” said Cupp. “And so we are just adjusting and modernizing our statute.”
- Democrats, including House Minority Leader Emilia Sykes (D), voted against the legislation. “You all are great at a lot of things,” Sykes told her colleagues on the House floor. “You are brilliant orators, lawyers, business owners, farmers, and more, but you are not good at public health.”
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Idaho legislative committee advances bill allowing for veto of federal actions
- What’s the story? Idaho state Representative Sage Dixon (R), co-chair of the state legislature’s Committee on Federalism, on March 10 introduced legislation in the House State Affairs Committee that aims to allow state lawmakers to veto federal actions.
- The bill would allow any state legislator to make a complaint concerning federal actions, such as executive orders, acts of Congress, or federal court rulings, that they consider to be beyond the scope of federal authority.
- After receiving a complaint, the members of the federalism committee would determine whether the complaint has merit. If so, a public hearing would be scheduled and, after the hearing, the committee would submit a report to the full legislature recommending whether to pass legislation nullifying the federal action.
- Dixon told lawmakers that the nation has “experienced the gradual drifting away from the founding principles of a limited federal government that stayed within the powers granted to it in the Constitution to a place where states are often merely enforcement vehicles of federal policy.”
- The House State Affairs Committee advanced the bill to the full House for possible amendments.
- Idaho Deputy Attorney General Cory M. Carone issued an opinion on March 19 claiming that the legislation wasn’t unconstitutional on its face, but that lawmakers’ actions pursuant to the legislation could face constitutional challenges.
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Georgia legislature approves limits on judicial deference
- What’s the story? The Georgia House of Representatives on March 22 voted 164-4 to send legislation to the governor’s desk that would limit judicial deference in the state by ending deference to certain tax regulations. The state Senate unanimously approved the legislation on March 1.
- Senate Bill 185, sponsored by state Senator Bo Hatchett (R) and six Republican cosponsors, requires state courts and the Georgia Tax Tribunal to decide all questions of law without deference to the regulations or policy interpretations of the state’s Department of Revenue, among other provisions.
- Georgia lawmakers failed to approve similar legislation last year before the close of the legislative session.
- Georgia joins a group of other states that have addressed judicial deference practices in recent years. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to prohibit or limit judicial deference to state agencies.
- Want to go deeper?
Examining the “Congress-to-commission” pathway
“Congress’s Commissioners,” a recent paper in the Yale Journal on Regulation by administrative law scholars Brian D. Feinstein and M. Todd Henderson, examines Congress’ growing practice of placing former legislative staff members in agency leadership positions. The authors found that the practice has increased nearly fourfold since the 1980s. Half of all current commissioners and board members on eleven major multi-member agencies examined by the authors previously served as legislative staff.
The authors argue that:
“[T]he Congress-to-commission pathway likely changes the way in which the administrative state operates. To the extent that former staffers take the culture of, and their connections to, Capitol Hill with them to their new jobs, then some of Congress’s pathologies may inhibit agency functioning. On the other hand, linking commissions with the legislative branch may increase democratic accountability, provide meaningful oversight, and improve commissions’ understanding of congressional objectives.”
Regulatory Tally
Federal Register
- The Federal Register in March reached 17,054 pages.
- The March Federal Register included 262 proposed rules and 277 final rules. These included testing regulations for walk-in freezers and airbag regulations for the Boeing 777 aircraft, among other regulations.
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
OIRA’s March regulatory review activity included the following actions:
- Review of 28 significant regulatory actions.
- Three rules approved without changes; recommended changes to 25 proposed rules.
- As of April 9, 2021, OIRA’s website listed 38 regulatory actions under review.
- Want to go deeper?
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