The Checks and Balances Letter: June 2018
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:
- Congress and the president rescind a major regulatory guidance for the first time under the Congressional Review Act.
- The U.S. Supreme Court, in upholding workplace arbitration agreements, rejected a regulatory interpretation by the National Labor Relations Board (rejecting the so-called Chevron deference) in favor of statutory language.
- President Trump signed three executive orders aimed at improving accountability within the federal civil service.
- The Iowa Supreme Court rules unanimously that the state transportation department cannot regulate traffic cameras without authorization from the Legislature.
- Point:Counterpoint. Do guidance documents improve regulatory efficiency or enable agencies to skirt the rulemaking process?
- Regulatory Tally. As of June 1, the number of pages in this year’s Federal Register trail the 2017 total for the same period by 170 pages.
What is guidance? Guidance is a term in administrative law used to describe a variety of documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures. Guidance documents clarify and affect how agencies administer regulations and programs. They are not legally binding in the same way as rules issued through one of the rulemaking processes of the Administrative Procedure Act (APA). However, guidance documents can have the same impact on affected parties as regulatory rules that have gone through the full rulemaking procedures. Critics of the administrative state argue that not infrequently, agencies use guidance practices to exceed the intent of Congress or intentionally avoid federal rulemaking procedures.
- Want to go deeper?: Check out Ballotpedia’s page on guidance in the administrative state.
The Checks and Balances Letter
In Washington
Congress and the President repeal an agency guidance for the first time under the Congressional Review Act
- What's the story? On May 21, President Trump signed a resolution passed by Congress to overturn the regulatory guidance on auto lending issued in 2013 by the Consumer Financial Protection Bureau. Congress exercised the Congressional Review Act to approve the resolution, which also prohibits the government from issuing a similar regulation in the future.
- What is the CRA? The Congressional Review Act s prescribes a fast-track process to rescind federal regulation. It has been used successfully 14 times since the Trump Administration took office.
- Want to go deeper? Check out these Ballotpedia articles for more information about IJs/AJs, federal administrative adjudicators, and the adjudication process::
OMB to provide guidance about guidance to agencies
- What's the story? The Office of Management and Budget (OMB) is reportedly preparing to issue stricter guidelines on the use of guidance documents by federal agencies, according to a May 21 report in Bloomberg. Neomi Rao, administrator of OMB’s Office of Information and Regulatory Affairs (OIRA) previously stated that limiting agency guidance is a component of the Trump administration’s regulatory reform agenda. A new report on regulatory guidance from the House Committee on Oversight and Government Reform references more than 13,000 guidance documents issued in the past decade from 46 agencies. More than half of the agencies surveyed were unable to provide a complete list of guidance documents.
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U.S. Supreme Court upholds workplace arbitration, declines to apply Chevron deference
- What's the story? The U.S. Supreme Court on May 21 ruled 5-4 that arbitration agreements between employers and employees are enforceable under the Federal Arbitration Act (FAA). The case involved a dispute between Epic Systems Corporation and a group of employees over the legality of a workplace arbitration agreement for wage-and-hour claims. In writing for the majority, Justice Neil Gorsuch observed that the case did not qualify for Chevron deference—in which a court defers to an agency’s interpretation of a statute. Chevron did not apply, according to Gorsuch, because no ambiguity existed in the statute administered by the National Labor Relations Board . Gorsuch further stated that Congress had put forth clear instructions for the enforcement of arbitration agreements, and any effort to change the law must come from Congress.
- Want to go deeper? Check out these Ballotpedia articles for information about state-level REINS Acts and the defendants in Koschkee v. Evers:
President Trump signs executive orders addressing civil service accountability
- What's the story? On May 25, President Trump signed three executive orders aimed at improving accountability within the federal civil service.
- Executive Order 13839: Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles seeks to streamline the dismissal process for poor performing federal employees.
- Executive Order 13836: Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining aims to clarify and align processes for federal collective bargaining negotiations.
- Executive Order 13837: Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use seeks to minimize taxpayer costs associated with federal collective bargaining.
- Want to go deeper?
In the States
Iowa Supreme Court rules state transportation department lacks authority to regulate traffic cameras
- What's the story? The Iowa Supreme Court ruled 6-0 that the state transportation department cannot regulate traffic cameras without authorization from the Legislature. The case was brought by the cities of Des Moines, Cedar Rapids, and Muscatine, which had installed traffic cameras on various highways in their jurisdictions. The Iowa Department of Transportation (DOT) had ordered the cities to turn off some of those cameras because it claimed that the cameras did not improve safety.
- The unanimous opinion stated that the case represented "the reach of the administrative state." The court noted that the DOT cannot regulate traffic cameras without authorization from the state legislature and that state agencies are "not free to interpret the general rulemaking authority as granting unlimited rulemaking authority."
- Lawsuits filed by citizens challenging the constitutionality of the cities' traffic cameras are still pending.
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States no longer required to prohibit sports betting, rules U.S. Supreme Court in striking down federal law
- What's the story? The U.S. Supreme Court struck down the Professional and Amateur Sports Protection Act (PASPA), a federal law that prohibited states from legalizing sports betting, on the grounds that the law violated the anti-commandeering doctrine.
- Writing for a six-justice majority, Justice Samuel Alito ruled that PASPA "unequivocally dictates what a state legislature may and may not do," unconstitutionally infringing on states' sovereignty. The ruling resolves two consolidated cases, Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association v. NCAA, in which New Jersey had argued that Congress had unconstitutionally commandeered New Jersey into enforcing federal programs by requiring New Jersey to adhere to PASPA's gambling restrictions.
- Want to go deeper?
Point:Counterpoint
- Does guidance enable agencies to regulate more efficiently? Or, does guidance enable agencies to skirt the rulemaking process?
- Point: Efficiency of guidance
- Yale law professor Nicholas Parrillo argued in a March 2018 article in Government Executive that guidance documents benefit both agencies and regulated parties:
| “ | [“G]uidance increases an agency program’s integrity and efficiency and shields regulated parties against unequal treatment, unnecessary work, and unnecessary risk.' | ” |
- Counterpoint: Guidance circumvents accountability
- In his 2015 article "The Role of Guidances in Modern Administrative Procedure: The Case for De Novo Review,” legal scholar Richard A. Epstein argued that federal agencies often use guidance as a tool to circumvent accountability and increase their regulatory authority. Epstein argues that since agency guidance documents can have similar impacts as final regulatory actions, affected parties should be able to bring forward de novo challenges to published agency guidance. Interpreting guidance de novo means interpreting the policy without deference to the legal opinions of administrative agencies or previous judgments.
Regulatory Tally
Federal Register
- The Federal Register in May increased by 6,416 pages, bringing the year-to-date total to 25,544 pages. In May 2017, the year-to-date total reached 25,714 pages.
- A total of 2,564 documents were included in the Federal Register during May, including 1,973 notices, 41 presidential documents, 217 proposed rules, and 303 rules
- As of June 1, the 2018 total trailed the 2017 total by 170 pages.
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
- The following list highlights OIRA’s recent regulatory review activity:
- OIRA reviewed 22 significant regulatory actions during May 2018. In May 2017, OIRA reviewed four significant regulatory actions.
- OIRA approved one of these rules with no changes and approved the intent of 21 rules while recommending changes to their content. No rules were withdrawn from the review process by the issuing agencies.
- Since January, OIRA has reviewed a total of 114 significant rules.
- As of June 1, 2018, OIRA’s website listed 75 regulatory actions under review.
- Want to go deeper?
Footnotes
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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