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The Checks and Balances Letter: April 2018

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In The Checks and Balances Letter, Ballotpedia’s Administrative State Project delivers updates on the latest happenings in the world of rulemaking and regulations. We’ll cover recent legislation and court case battles, tally up figures demonstrating the scale and scope of federal agency rules and regulations, and go in-depth into the theory and practice of the administrative state.

This month's edition: We bring you up to speed on several federal agencies reducing the number of their regulations and whether the Trump administration is on track to meet its regulatory aims. We also tally up the latest additions to the Federal Register and the number of rules and regulatory actions reviewed by the Office of Information and Regulatory Affairs.

The Checks and Balances Letter: Is the Trump administration on track to meet its regulatory aims?

In the news

IRS removes 298 regulations from the tax code

What's the story? The IRS is removing 298 regulations from the tax code and amending 79 related regulations to comply with Executive Orders E.O. 13777 (which directs agencies to set up regulatory reform task forces) and 13789 (which broadly aims to simplify and clarify tax regulations). The announcement was made as a proposed rule—the initial stage of the rulemaking process—and would impact Title 26 of the Code of Federal Regulations.
Want to go deeper? Read these Ballotpedia articles:

Report finds deregulatory actions under Trump exceed initial goals

What's the story? A report by The Heartland Institute, a self-described free-market think tank, found that the Trump administration has removed 22 federal regulations for every new regulation added since January 2017. The ratio of 22 deregulatory actions for each new regulation exceeds the goal of President Trump’s January 2017 Executive Order on Reducing Regulation and Controlling Regulatory Costs, which called for two deregulatory actions for each new agency regulation.
Want to go deeper? Click here to view the total number of new regulations published in the Federal Register—the daily journal of the federal government containing all proposed and final regulations—during the Trump administration.
  • For more information about new regulations published in the Federal Register since the first edition in 1936, click here.


Federal agency on track to remove limits on ex parte communications during informal rulemaking

What's the story? The Surface Transportation Board (STB), a federal agency that regulates and adjudicates issues related to railroad transportation, announced yesterday that it will begin allowing ex parte communications during informal rulemaking proceedings initiated after April 4, 2018. Ex parte communications in administrative proceedings are communications between a member of the public and a federal agency employee or administrative law judge regarding a proposed agency action during the rulemaking process.
The STB had prohibited ex parte communications during informal rulemaking since a 1977 decision by the board's predecessor agency, the Interstate Commerce Commission, concluded that ex parte communications in informal rulemaking had the potential to threaten overall fairness, introduce undue influence, and violate the due process rights of those not engaged in the communications.
The new rule, which was scheduled to be published in the Federal Register in March, complies with a 2014 recommendation from the Administrative Conference of the United States (ACUS), an independent federal agency that aims to improve federal administrative processes, that advised against prohibitions on ex parte communications during informal rulemaking. ACUS encouraged the use of ex parte communications in order to facilitate an open, transparent dialogue between agency personnel and the general public during informal rulemaking. U.S. Code § 553, which governs the informal rulemaking process, does not place limitations on ex parte communications.
Want to go deeper? Visit the following links for more information about ex parte communications and the informal rulemaking process:



Featured scholarship

The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis

Published in 2007, this article by American political scientist Ronald J. Pestritto argues that the modern administrative state is incompatible with the principles of constitutional government. Rather than delving deeper into this argument, which Pestritto notes has been examined by scholars across political ideologies, Pestritto devotes the remainder of the article to examining the principles held by Progressive Era contemporaries Woodrow Wilson, Frank Goodnow, and James Landis in the context of their contributions to the growth of the modern administrative state.
  • James Landis was a Harvard Law School colleague of Justice Felix Frankfurter, an advisor to President Franklin D. Roosevelt (D). Frankfurter commissioned Landis to work on securities legislation during the New Deal. Pestritto dedicates this section of the article to a study of Landis' progressive philosophy, beginning with Landis' belief that the only way to bring about the vision of the New Deal was to establish and empower a number of administrative government agencies staffed by impartial experts vested with the authority to implement the program's goals.
  • Prior to his tenure as the nation's 28th president, Woodrow Wilson (D) introduced the concept of separating politics and administration in a series of essays in the late 1880s. Wilson felt that the Constitution should be interpreted as an organic document with the flexibility to adapt to historical progress—a "Darwinian" constitution—rather than as a rigid framework subject to the separation of powers—a "Newtonian" Constitution that Wilson felt constrained the government from operating efficiently.
  • Frank Goodnow championed administrative growth as the most efficient means of implementing the broad government programs of the New Deal. He also envisioned a three-part executive made up of administrative agencies, the judiciary, and an elected head of state that could collectively operate outside of political influence. According to Pestritto, Goodnow's progressive philosophy demonstrates the theoretical shift from constitutional governing principles to the empowerment of the administrative state.



Featured SCOTUS case

National Federation of Independent Business v. Sebelius (2012)

In brief: The plaintiffs alleged that the Affordable Care Act's individual mandate and Medicaid expansion provisions were unconstitutional. In a 5-4 decision, the court upheld the individual mandate as a legitimate exercise of Congress' Article I power to lay and collect taxes rather than its authority to regulate interstate commerce, concluding that the penalty is a tax.
Why it matters: The decision in this case clarified the scope of Congress' authority to regulate interstate commerce under the Commerce Clause of Article I. In the opinion for the court, Chief Justice John Roberts wrote, "The court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes." Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito dissented. The dissenters argued that the individual mandate represented an unprecedented abuse of federal power, for the federal government has "never before used the Commerce Clause to compel entry into commerce."



Point/Counterpoint

This month, we share two competing frameworks for thinking about Chevron deference, the administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.
In a speech at Duke University School of Law, Justice Antonin Scalia argued that in a case where Congress has expressly delegated the administration of a particular statue to a federal agency, the responsibility to interpret the statute rests with the agency:
“ In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: 'The extent to which courts should defer to agency interpretations of law is ultimately "a function of Congress" intent on the subject as revealed in the particular statutory scheme at issue.' An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion-i.e., whether its resolution of the ambiguity is reasonable.[1] ”
—Justice Antonin Scalia
Justice Clarence Thomas, writing in his concurrence for Michigan v. EPA, took a critical view of the doctrine:
“ Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is 'the best reading of an ambiguous statute' in favor of an agency’s construction.[1] ”
—Justice Clarence Thomas



Tallying up the administrative state

Federal Register

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. During the week of February 26 to March 2, the number of pages in the Federal Register increased by 970 pages, bringing the year-to-date total to 9,134 pages. A total of 537 documents were included in the week’s Federal Register, including 439 notices, 3 presidential documents, 37 proposed rules, and 58 rules.
Additions to the Federal Register, 2018
Week Notices Presidential documents Proposed rules Rules Total documents added* Total pages added
February 26 - March 2 439 3 37 58 537 970
February 19 - February 23 392 4 33 35 464 1,058
February 12 - February 16 510 2 39 57 608 1,236
February 5 - February 9 419 3 27 58 507 842
January 29 - February 2 500 1 35 65 601 1,092
January 22 - January 26 442 8 30 67 547 1,052
January 15 - January 19 379 2 31 50 462 856
January 8 - January 12 317 4 34 58 413 1,324
January 1 - January 5 276 1 16 40 333 704
Total 2018 5,368 54 432 755 6,609 13,624
*Total documents added is equal to the weekly sum of all notices, presidential documents, proposed rules, and rules.


During the same week in 2017, the number of pages in the Federal Register increased by 714 pages, bringing the year-to-date total to 12,502 pages. As of March 2, the 2018 total trailed the 2017 total by 3,368 pages.
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
  • Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2016.

OIRA

In February, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 20 significant regulatory actions issued by federal agencies. OIRA approved one of these rules with no changes and approved the intent of 15 rules while recommending changes to their content. Three rules were withdrawn from the review process by the issuing agencies. OIRA also held that one rule had been improperly submitted.
The office has reviewed a total of 40 significant rules this year. OIRA’s website listed 48 regulatory actions currently under review.
Completed OIRA reviews of administrative rules, 2018[2]
Month Economically significant rules Not economically significant rules Total rules reviewed Consistent without change Consistent with change Returned Withdrawn
February 2 18 20* 1 15 0 3
January 5 15 20 0 15 0 5
Total 2018 11 49 60 2 46 0 11
Pending actions (as of March 1, 2018): 48[3]


Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, click here.

Footnotes

  1. ↑ 1.0 1.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  2. ↑ Office of Information and Regulatory Affairs, "Review Counts," accessed February 1, 2018
  3. ↑ Office of Information and Regulatory Affairs, "Regulatory Review Dashboard," accessed March 1, 2018
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