The Checks and Balances Letter: November 2018
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:
The Trump Administration cut regulatory costs by $23 billion, on net, during fiscal year 2018, according to the recent Unified Agenda of Regulatory and Deregulatory Actions released on Oct. 17. In this issue of Checks and Balances, we examine these deregulatory efforts and the administration's rulemaking priorities for the coming year. We also highlight two recent federal court cases involving deference, as well as Florida voters’ approval of a ballot measure that ends state court deference altogether.
This issue also features a closer look at President Trump’s nominee to the United States Court of Appeals for the District of Columbia Circuit Neomi Rao’s views on the administrative state. Lastly, we review a legal challenge to New Jersey’s disputed ban on bear hunting and a Florida case involving local government’s unrestrained use of automated license plate readers.
The Checks and Balances Letter
In Washington
$23 billion in net deregulation savings in FY 2018
- What's the story? The Trump administration reported $23 billion in savings from 176 deregulatory actions during the 2018 fiscal year. Moreover, the administration has issued 65% fewer economically significant rules than the Obama administration and 51% fewer than the Bush administration in their first 21 months. (Economically significant rules impose costs on the private sector exceeding $100 million a year, among other effects.)
- The data was compiled in the new Unified Agenda of Federal Regulatory and Deregulatory Actions, which catalogues twice each year the rulemaking plans of federal agencies.
- In pursuit of his goal to reduce the federal regulatory burden, President Trump issued Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs, which requires agencies to eliminate two regulations for each new regulation issued, and directed the Office of Management and Budget to budget regulatory cost allowances for each agency.
- The administration projects a reduction in regulatory costs of $18 billion in the 2019 fiscal year. In addition, the White House is pursuing reform of greenhouse gas emissions standards and Corporate Average Fuel Economy standards, which would further reduce regulatory costs by $120 billion and $340 billion respectively.
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Uncertainty around Auer deference
- What's the story? In U.S. v. Havis, a three-judge panel of the United States Court of Appeals for the 6th Circuit on October 22 upheld 2-1 the United States Sentencing Commission’s use of guidance documents for criminal sentences. In separate opinions, two of the three judges expressed disparate conclusions regarding the application of Auer deference—a principle in which a federal court defers to an agency's interpretation of a rule—in upholding the commission’s criminal sentence.
- The case involves the sentencing of Jeffrey Havis on a firearms charge in Tennessee. The United States Sentencing Commission increased Havis’ base sentence due to a prior conviction for attempting to deliver cocaine. Havis argued that the sentencing guidelines for attempted drug delivery are found in the agency’s guidance documents rather than promulgated regulations and, therefore, are not entitled to Auer deference.
- The Sixth Circuit panel upheld Havis’ sentence due to precedent in the 2012 case U.S. v. Evans, which held that the inclusion of attempts to sell or distribute drugs in sentencing guidelines was binding. However, all three judges on the panel—Amul Thapar, Jane Stranch, and Martha Daughtrey—agreed that the 2012 court may have reached the incorrect conclusion by treating agency guidance as binding. A ruling by the full Sixth Circuit would be required to overturn the precedent.
- Thapar criticized Auer deference in his concurrence, arguing that the deference principle violates the separation of powers by calling for federal courts to yield to agency interpretations of their own rules. Stranch, on the other hand, defended Auer deference, arguing that judicial interpretations should not substitute for agency expertise.
- Should Havis seek further review, the case would be reheard by the full Sixth Circuit.
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Supreme Court denies certiorari in case challenging Chevron deference
- What's the story? The U.S. Supreme Court denied certiorari on October 29 in a case challenging the scope of Chevron deference—a doctrine by which courts yield to an agency’s interpretation of a statute.
- In the case California Sea Urchin Commission v. Combs, a group of commercial fishermen claimed that the U.S. Court of Appeals for the Ninth Circuit improperly expanded Chevron deference when it ruled that statutory silence could warrant deference rather than just statutory ambiguity. The plaintiffs, led by the California Sea Urchin Commission, brought suit against the U.S. Fish and Wildlife Service’s Acting Assistant Secretary Susan Combs.
- The Ninth Circuit held that the U.S. Fish and Wildlife Service’s interpretation of a 1986 law governing a sea otter relocation program was entitled to Chevron deference because the statute was silent on the agency’s authority to terminate the program.
The petition for review failed to garner the required support of at least for justices in order for the court to grant certiorari.
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In the States
Ballot measure prohibiting judicial deference approved
- What's the story? Florida voters approved a constitutional amendment that prohibits deference to administrative agencies by state courts. Commissioner Roberto Martinez of the Florida Constitution Revision Commission (CRC) sponsored the amendment, arguing that deference to agency statutory interpretations threatens judicial independence in the state.
- The CRC crafted Florida’s Amendment 6 by bundling three proposals: a set of increases to the rights of crime victims (Marsy’s Law) in the state, including the right to be notified about the release or escape of the accused individual; an increase in the judicial retirement age from 70 to 75; and a prohibition against judicial deference to administrative agencies.
- Michigan, Arizona, Mississippi, and Wisconsin have also barred deference to state agencies by state courts.
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NJ hunter groups sue governor, state agency over bear hunt restrictions
- What's the story? Three hunting groups in New Jersey filed a lawsuit challenging the authority of the state Department of Environmental Protection (DEP) to prohibit bear hunts on state-controlled lands during the state’s scheduled October and December 2018 bear hunts. The DEP issued the prohibition pursuant to an August 2018 executive order from Governor Phil Murphy (D).
- Murphy pledged to end black bear hunts in the state during his 2017 campaign. Bear hunts are currently regulated under a five-year black bear management plan issued by the DEP in 2015. In order to halt the hunt entirely, the state legislature would need to pass a law or the DEP would need to issue new regulations. Murphy’s executive order prohibited bear hunts on state-controlled lands, but did not halt hunting on private or federal lands.
- The groups claim that the DEP violated state administrative procedures because the agency did not first solicit public comments on the ban or cite scientific or policy justifications for it.
- The state attorney general’s office argued that DEP Commissioner Catherine McCabe did not change any state regulations. Instead, she acted as a “landlord” in issuing the executive order.
- The Appellate Division of Superior Court issued a ruling on November 16 that supported McCabe’s authority as a landlord to close state lands to bear hunting. However, the court ordered an administrative law judge with the state Office of Administrative Law to gather facts to determine whether the state’s decision was arbitrary and capricious.
- If the hunting groups appeal the decision, the case will go before the New Jersey Supreme Court.
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Constitutionality of automated license plate readers challenged
- What's the story? The New Civil Liberties Alliance (NCLA), a public interest law firm focused on the administrative state, filed a lawsuit on October 23 arguing that the use of automated license plate readers (ALRP) by the City of Coral Gables, Florida, violates state law and citizens’ right to privacy under the Fourth Amendment of the U.S. Constitution.
- The lawsuit alleges that the Florida Department of Law Enforcement (FDLE) never issued administrative rules governing local governments’ use of ALPR technology. Instead, the state agency has allowed local law enforcement to engage in unlimited use of ALPR and the data collected by the system.
- NCLA claims that this unconstrained use of ALPR technology violates the Fourth Amendment by monitoring the vehicular movement of private citizens without probable cause.
- The lawsuit was filed in Florida's 11th Circuit Court, and names the City of Coral Gables, the FDLE, and the Florida Department of State.
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Trump nominates Neomi Rao to fill Kavanaugh’s DC Circuit seat
President Trump has nominated Neomi Rao, administrator of the Office of Information and Regulatory Affairs (OIRA), to fill the vacancy on the United States Court of Appeals for the District of Columbia Circuit. The vacancy was created following Brett Kavanaugh's confirmation to serve on the United States Supreme Court.
Rao is a champion of curbing the administrative state, and she has played a central role in the administration’s regulatory reform efforts. As the head of OIRA, she has overseen the regulatory review process as well as its information collection requests, statistical practices, and privacy policies. OIRA’s regulatory review responsibilities include reviewing and coordinating significant regulatory actions by federal agencies.
The U.S. Senate confirmed Rao on July 10, 2017, to serve as the administrator of OIRA, an agency within the White House Office of Management and Budget (OMB). She is currently on a leave of absence from her position as an associate professor of law at George Mason University's Antonin Scalia Law School, where she founded in 2015 the Center for the Study of the Administrative State.
In "The Administrative State and the Structure of the Constitution," published by the Heritage Foundation in 2018, Rao wrote that administrative agencies create regulatory burdens for citizens when they promulgate regulations beyond the scope of their congressionally delegated authority:
| “Most of the authority of the federal government is exercised through administrative agencies that create regulations, enforce those regulations, and also at times adjudicate cases under those regulations. To be sure, regulatory actions can sometimes implement important health, safety, and welfare priorities that have been set by Congress, but administrative agencies that operate on their own inertia often create regulations that are overly burdensome and fail to deliver any real benefits.” |
Rao has endorsed greater reliance on the nondelegation doctrine to curtail expansion of the administrative state:
| “The importance of the nondelegation principle has been reaffirmed throughout our history, but reliance on structural checks and balances has proved unavailing. Developments within the administrative state suggest the courts should articulate and enforce a more robust nondelegation doctrine. In addition, the political branches can also rein in delegations, which may bolster both the collective Congress and the unitary executive. Excessive delegations have undermined individual liberty by allowing for the expansion of the administrative state outside the Constitution’s requirements for accountability. The collective Congress provides a way to think about the problem of delegation at its source.” |
Rao has also expressed support for greater presidential control over independent agencies, including the at-will removal of agency commissioners:
| “The debate over presidential control of the administrative state continues amidst legal uncertainty and judicial challenges. As scholars have sought to move beyond labels of 'independence' for understanding actual presidential control, realistic understandings of administration have resulted in relative indifference to constitutional requirements. Yet Article II requires the President serve as the Administrator in Chief, in control of execution of the laws and with directive authority over his subordinates. Such control cannot be left solely to congressional preferences or to politics. The executive power in the scheme of separation of powers deserves more than a rubber stamp.” |
Regulatory Tally
Federal Register
- The Federal Register in October increased by 5,596 pages, bringing the year-to-date total to 54,860 pages. Between 2009-2016, the year-to-date total at the end of October averaged 66,312 pages.
- The Federal Register included 164 proposed rules and 303 final rules during October 2018. The regulations covered a variety of topics, including medical device classifications, mishandled luggage reporting requirements for airplanes, and grading standards for pecans.
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Office of Information and Regulatory Affairs (OIRA)
- OIRA’s recent regulatory review activity includes:
- Review of 43 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 42 significant regulatory actions each October.
- Two rules approved without change; recommended changes to 21 proposed rules.
- Review of 288 significant rules since January, compared to 192 significant rules during the same period in 2017.
- As of November 1, 2018, OIRA’s website listed 94 regulatory actions under review.
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Footnotes
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