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 latest Supreme Court activity in challenges to agency power; the Biden administration’s efforts to delay and withdraw a Trump-era rule requiring retrospective regulatory review by the U.S. Department of Health and Human Services (HHS); a move by the U.S. Securities and Exchange Commission (SEC) to shorten public comment periods; and a lawsuit from the U.S. Deparment of Justice (DOJ) arguing federal supremacy over a Missouri gun law.
At the state level, we take a look at decisions by Massachusetts and other states to walk back the use of facial recognition technology; action by the Illinois General Assembly’s Joint Committee on Administrative Rules to block an emergency administrative rule on school mask mandates; and a proposed Kansas constitutional amendment that would give state lawmakers authority to rescind or suspend regulations.
We also highlight recent scholarship from administrative law scholar Andy Grewal highlighting what he considers to be the problems associated with phantom regulations. As always, we wrap up with our Regulatory Tally, which features information about the 179 proposed rules and 245 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
In Washington
SCOTUS takes up immigration policy challenge, hears argument in case concerning agency powers
What’s the story?
The United States Supreme Court in February granted certiorari in a case challenging the Biden administration’s attempts to reverse a Trump-era immigration policy. The court also heard oral argument in a case questioning the scope of agency rulemaking authority.
Biden v. Texas: The court on February 18, 2022, agreed to hear Biden v. Texas, a case in which states argue that the Biden administration violated federal immigration law and the Administrative Procedure Act (APA) when it decided to terminate the Trump administration’s Migrant Protection Protocols (MPP). A district court and the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the states, holding that federal immigration law requires the U.S. Department of Homeland Security (DHS) to return inadmissible noncitizens to Mexico when the agency lacks the resources to detain them. The court also held that DHS violated the APA by not adequately explaining its decision to end the MPP program.
The court agreed to fast-tracked the case so that it could be decided during the current term. Oral argument is scheduled for April 26, 2022.
West Virginia v. Environmental Protection Agency (EPA): The U.S. Supreme Court on February 28 heard oral argument in West Virginia v. EPA, a case that questions the scope of authority Congress can delegate to the EPA to regulate greenhouse gas emissions. In its forthcoming decision, the Supreme Court could invoke the major questions doctrine or the nondelegation doctrine to set limits on the rulemaking authority Congress can delegate to the EPA and other federal agencies.
“The justices seemed most interested in how to interpret the language of Section 111 of the Clean Air Act (42 U.S.C. Section 7411), which is the statutory source of authority to regulate greenhouse gas emissions from power plants,” observed administrative law scholar Jonathan Adler in an analysis for Reason. “The major questions doctrine was raised repeatedly throughout the argument, largely as an input to the statutory interpretation inquiry, rather than as a stalking horse for the nondelegation doctrine.”
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HHS delays implementation of sunset rule
What’s the story?
The U.S. Department of Health and Human Services (HHS) on March 3, 2022, delayed the implementation of a Trump-era regulation requiring the agency to implement a retrospective review process for all agency rules. The delay, set to expire on September 22, 2022, continues a pause on the rule put in place last March by the Biden administration while a lawsuit seeking to overturn the regulation makes its way through the courts.
The HHS rule established a review process, sometimes referred to as a sunset review, that would have set a 10-year expiration date for each agency rule, with certain exceptions, unless the agency conducts a retrospective review to keep the rule in effect. The Trump administration argued that the review process would ensure that HHS regulations were up-to-date and effective.
In addition to delaying implementation of the rule, the Biden administration has also moved to rescind the rule. Officials have argued in part that the Trump administration issued the rule too quickly, claiming in the Federal Register that “given the lack of a public health or welfare reason to expedite the rulemaking and other procedural shortcomings, the department should now reconsider the commenters’ significant objections to the proposal.” HHS as of March 17 was reviewing public comments received on its proposed withdrawal of the rule.
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SEC shortens public comment periods
What’s the story?
The U.S. Securities and Exchange Commission (SEC) under the Biden administration has moved to reduce the amount of time the public has to comment on the agency’s proposed rules.
Comment periods allow members of the public the opportunity to submit written feedback on proposed agency rules. The SEC has generally provided a 60-day public comment period on its proposed rules, according to researchers at the Cato Institute. Though the Administrative Procedure Act (APA) requires a minimum 30-day comment period, President Bill Clinton’s Executive Order 12866, which continues to guide many regulatory review practices, recommends a 60-day comment period in most cases.
Under SEC Chairman Gensler, the agency’s comment periods have decreased from 60 days to as short as 30 days. U.S. Representative Patrick McHenry (R-N.C.) and U.S. Senator Pat Toomey (R-Pa.), ranking members in the congressional committees overseeing the SEC, sent a letter to Gensler asking him to consider extending the comment periods. Cato Institute researcher Will Yeatman argued that the APA not only sets a minimum floor of 30 days, but also requires that agency action be reasonable, which could call for longer comment periods in cases of complex or lengthy rules.
Gensler has defended the shorter comment periods, stating that the agency is working to move its agenda forward. “Congress weighed in on comment periods with the Administrative Procedure Act,” said Gensler at a January 19, 2022, meeting of the Exchequer Club of Washington D.C. “Congress is pretty straight forward; they said 30 days.”
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U.S. Department of Justice sues Missouri over state gun law
What’s the story?
The U.S. Department of Justice (DOJ) on February 16 sued the state of Missouri in the United States District Court for the Western District of Missouri in an effort to overturn the state’s Second Amendment Preservation Act. The law, signed into law by Gov. Mike Parson (R), aims to mitigate perceived infringement on citizens’ Second Amendment rights by allowing police departments to refuse to provide information to federal authorities and to recuse themselves from federal violent crime task forces.
States can decline to assist the federal government in an investigation. The DOJ, however, asserts that the Second Amendment Preservation Act unlawfully authorizes Missouri to regulate federal authority “by purporting to nullify, interfere with, and discriminate against federal law”, according to Brian Boynton, U.S. deputy assistant attorney general. Boynton claims the law poses threats to public safety and violates the U.S. Constitution’s Supremacy Clause by nullifying key aspects of the Second Amendment, including firearm registration, tracking, and confiscation laws.
“The Biden Department of Justice has now filed yet another partisan lawsuit that seeks to attack Missourians’ Second Amendment rights,” Missouri Attorney General Eric Schmitt (R) responded in a statement. Schmitt claimed that the lawsuit served as a pretense to halt what he considers to be a successful joint crime-fighting collaboration between Missouri and federal law enforcement, known as the Safer Streets Initiative.
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In the states
Massachusetts unemployment insurance program ends use of facial recognition technology
What’s the story?
The Massachusetts Department of Unemployment Assistance (DUA) on February 23, 2022, announced that it would suspend the use of facial recognition technology as a way for unemployment insurance claimants to verify their identities. The department cited decreased claim volumes as the basis for its decision.
The Massachusetts DUA joins other state and federal agencies in walking back the use of facial recognition technology to access government services. Unemployment insurance program officials in Oregon halted the use of facial recognition technology last fall due in part to accessibility concerns. California officials as of March 17 were reviewing privacy and transparency issues regarding the state’s use of facial recognition technology to confirm the identities of unemployment insurance claimants. The Internal Revenue Service (IRS) in January reversed its plan to require facial recognition technology for Americans to access their tax returns online after members of Congress raised bipartisan concerns about privacy rights, accuracy, and regulatory oversight of facial recognition technology.
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Illinois lawmakers block governor’s emergency rule
What’s the story?
The Illinois General Assembly’s Joint Committee on Administrative Rules (JCAR) on February 15, 2022, voted 9-0-2 to block an emergency rule issued by Governor J.B. Pritzker (D) aiming to enforce state mask, vaccine, and testing requirements in schools. Three of the JCAR’s six Democrats joined the six Republican members in support of the measure.
Sangamon County Circuit Court Judge Raylene Grischow on February 4, 2022, issued an order nullifying emergency rules from the state’s Department of Education and Department of Public Health requiring masks in schools, among other education-related requirements in response to the coronavirus (COVID-19) pandemic. Grischow ruled in part, “The ISBE’s emergency administrative rules mandating issues of masking, vaccinations, testing and quarantine are outside the scope of any authority granted them by the Legislature.” Despite the order—later upheld by the Illinois Fourth District Appellate Court on February 17—the Illinois Department of Public Health attempted to issue an emergency rule to reinstate the requirements, prompting the JCAR to vote on the action.
“Today, the Joint Committee of Administrative Rules made it clear that we would not accept the governor’s attempts to go above a court ruling made by a co-equal branch of government,” said state Senator Sue Rezin (R). State Senator Bill Cunningham (D) agreed, stating, “I think it fair to say the committee was uncomfortable with extending an emergency rule that has been invalidated by a court.”
The Illinois Supreme Court on February 26, 2022 denied Pritzkers request for an appeal, vacated Judge Grischow’s order, and remanded the case to the Sangamon County Circuit Court. Pritzker, who lifted the statewide school mask mandate on February 28, stated in response to the ruling that the court’s decision to vacate the lower court order allows him to issue new mandates in the future if needed.
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- J.B. Pritzker
- Illinois General Assembly
- School responses to the coronavirus (COVID-19) pandemic during the 2021-2022 academic year
Proposed Kansas constitutional amendment would allow lawmakers to rescind agency rules
What’s the story?
The Judiciary Committee of the Kansas State Senate on March 8, 2022, issued a favorable recommendation to the full chamber on a proposed amendment to the Kansas Constitution that would allow lawmakers to revoke or suspend agency rules. The measure passed the Kansas House on February 18, 2022, by an 85-39 vote.
House Concurrent Resolution 5014 would replace the current system in Kansas, under which a joint legislative committee can review proposed regulations and provide feedback. The proposed framework would create a new Section 1 of the state constitution granting the Legislature “oversight of state executive branch agencies and officials by providing the Legislature authority to establish procedures to revoke or suspend rules and regulations.”
Attorney General Derek Schmitt (R) has stated that the proposal would strengthen legislative oversight of administrative agency rules. State Representative Dennis “Boog” Highberger (D), an opponent of the proposal, referred to the amendment as “election-year grandstanding,” according to the Kansas Reflector.
If approved by the legislature, Kansas voters will decide on the amendment in the 2022 election.
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Spotlight on phantom regulations
In a recent post for the Yale Journal on Regulation’s Notice & Comment blog, administrative law scholar Andy Grewal discussed the concept of phantom regulations in a case before the United States Court of Appeals for the Sixth Circuit. Phantom regulations, according to Grewal, have come to light in tax cases where a challenged statute has called for U.S. Department of the Treasury regulations that the department never issued. Courts, in these instances, have opted to apply the statutes without regulations—thus giving rise to phantom regulations.
Grewal discussed what he considered to be problems associated with phantom regulations in the context of the recent case Whirlpool v. Commissioner:
“Whirlpool shows how phantom regulations can thwart the congressional intent reflected in statutory language. The Sixth Circuit said that it applied the text adopted by Congress. But its nominally textual approach applies some statutory words and ignores others (‘under regulations’). The Sixth Circuit should have given effect to all words found in Section 954(d)(2), like the Tax Court did below.
“The Sixth Circuit’s approach might earn some sympathy. The court plainly wanted to resolve the case without wading into the highly complicated Section 954(d)(2) regulations. Ignoring the statute’s reference to regulations provided a convenient way to do so.
“But Congress acts deliberately when it decides that a statutory rule will apply ‘under regulations.’ Through that language, Congress decides that agencies, as experts, should examine tradeoffs and determine whether and how a potential rule should apply. Section 954(d)(2) itself addresses highly complicated matters. Thus, it’s easy to see why, as Judge Nalbandian’s dissent observed, Congress would want expanded immediate taxation to arise only after the Treasury followed the notice-and-comment-process.”
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- Click here to read “The Sixth Circuit Conjures Phantom Regulations”
Regulatory tally
Federal Register
- The Federal Register in February reached 11,274 pages.
- The February Federal Register included 179 proposed rules and 245 final rules. These included a temporary increase in H-2B visas and a revised critical habitat for jaguars, among other regulations.
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Office of Information and Regulatory Affairs (OIRA)
OIRA’s February regulatory review activity included the following actions:
- Review of 22 significant regulatory actions.
- No rules approved without changes; recommended changes to 21 proposed rules; one rule withdrawn from the review process.
- As of March 1, 2022, OIRA’s website listed 102 regulatory actions under review.
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Want to go deeper?
- Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules
