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The Checks and Balances Letter: February 2019
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 federal government may have been partially shut down for much of January, but we still have plenty of administrative state activity to cover in Checks & Balances. In this edition, we take a look at the Supreme Court ruling that prohibits states from imposing excessive fines and seizing property of those accused or convicted of crimes, DC Circuit nominee Neomi Rao’s confirmation hearing, and a legal challenge to the addition of a citizenship question on the U.S. Census. We also feature a review of John Marini’s new book Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century.
We also highlight recent noteworthy activity at the state level. The Wisconsin Supreme Court reiterated the end of judicial deference in the state and Tennessee Governor Bill Lee (R) called for the development of a framework for regulatory cost-benefit analysis. We wrap it all up with our Regulatory Tally, which features information about the 19 proposed rules and 38 final rules added to the Federal Register in January and OIRA’s regulatory review activity.
The Checks and Balances Letter
In Washington
Unanimous Supreme Court ruling checks individual state power over civil asset forfeiture
- What's the story? Justice Ginsburg delivered the opinion in a unanimous decision in Timbs v. Indiana, a case that challenged civil asset forfeiture as an excessive seizure of private property by law enforcement. The ruling prohibits states from imposing excessive fines on people accused or convicted of a crime.
- The Indiana Supreme Court had ruled that the excessive fines clause of the Eighth Amendment did not apply in Indiana, and that the police were allowed to seize Timbs’ vehicle. Under civil asset forfeiture, law enforcement routinely seize cars, cash, and other property as alleged proceeds of crime. The property may be seized even if an individual has not been convicted of a crime.
- Timbs’ lawyers argued that the seizure of Timbs’ Land Rover constituted an excessive fine in violation of the Eighth Amendment, and likewise violated the Fourteenth Amendment rights to due process and equal protection.
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Confirmation hearing held for OIRA Administrator Neomi Rao
- What's the story? The Senate Judiciary Committee held its confirmation hearing on February 5 for U.S. Court of Appeals for the District of Columbia Circuit nominee Neomi Rao, who is serving as OIRA Administrator. President Trump nominated Rao to the federal judgeship in November 2018 to replace Brett Kavanaugh upon his elevation to the U.S. Supreme Court.
- Rao’s nomination to the court, considered the second-highest in the land, was waylaid by questions about her undergraduate writings.
- 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. Senators questioned whether she’d recuse herself in cases involving regulations reviewed during her time at OIRA.
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SCOTUS agrees to hear case after federal judge rules Trump administration violated APA by adding citizenship question to census
- What's the story? The United States Supreme Court announced on February 15, 2019, that it would review a case challenging the addition of a citizenship question in the 2020 census.
- Judge Jesse Furman of the United States District Court for the Southern District of New York issued a ruling in a consolidated case on January 15, 2019, holding that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act (APA) by including a question in the 2020 census asking “[i]s this person a citizen of the United States?”
- Furman stated that Ross had "failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices."
- Furman also held that Ross had not violated the U.S. Constitution’s Due Process clause because the administrative record in the case did not demonstrate discrimination as a motivating factor for his decision. Plaintiffs in the case had argued that Ross violated the equal protection component of the Due Process Clause because his actions were "motivated by invidious discrimination," according to the ruling.
- The case consolidated two legal challenges before the Southern District of New York: State of New York, et al. v. United States Department of Commerce, et al. and New York Immigration Coalition, et al. v. United States Department of Commerce, et al. The plaintiffs in the cases included a coalition of 18 states and the District of Columbia, fifteen cities and counties, the United States Conference of Mayors, and a group of advocacy organizations.
- By agreeing to hear the case, the United States Supreme Court will skip over an appellate court decision. Oral argument will be held in April 2019.
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In the States
Wisconsin Supreme Court reaffirms end to judicial deference
- What's the story? The Wisconsin Supreme Court reaffirmed that it will no longer defer to state administrative agencies’ conclusions of law in its January 18, 2019, decision in Myers v. Department of Natural Resources. The court held 6-1 that the Wisconsin Department of Natural Resources (DNR) overstepped its authority by amending the conditions of a permit issued 11 years prior.
- The DNR issued the permit to private landowners in 2001 to build a pier on the shoreline of their Lake Superior property. The owners complied with the conditions of the permit and completed construction within the prescribed timeline.
- In 2012 and 2013, a neighbor complained that the owners’ pier had resulted in “shoreline erosion and a loss of riparian property.” The DNR investigated the complaint and held that the owners were out of compliance with their permit and mandated that they make changes to the structure.
- The DNR argued that it had the authority to amend the permit under a state statute that regulates navigable waters. The Wisconsin Supreme Court disagreed with the agency’s interpretation of the statute and held that the DNR did not have the authority to amend the permit because it had expired.
- In the ruling, the judges reiterated that they had ended “the practice of deferring to administrative agencies’ conclusions of the law,” which the court first declared in the June 2018 decision for Tetra Tech, Inc. v. Wisconsin Department of Revenue. The Wisconsin Legislature codified the court’s position into law in December 2018.
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Tennessee governor calls for improved cost-benefit analysis, issues 90-day regulatory freeze
- What's the story? Tennessee Governor Bill Lee (R), who took office on January 14, 2019, issued Executive Order 5 on February 1 calling for the executive branch to develop a framework for performing regulatory cost-benefit analysis. The order also instituted a regulatory freeze that prevents state agencies from filing new regulations with the secretary of state’s office for 90 days.
- "We just want to make sure that before we pass any more regulations, we evaluate the current ones and that we make certain we have an environment for business that is friendly and not over-regulated," said Lee, describing his motivation for issuing the order. "I want to have a clear understanding of the regulatory environment."
- Over the course of the 90-day regulatory freeze, the governor’s office stated that the executive branch aims to "develop a framework to better assess the costs and benefits of imposing a new regulation.” Tennessee does not have a cost-benefit analysis framework in place for administrative regulations, according to an analysis by the Tennessee Municipal League.
- Executive agencies can seek an exemption from the governor to file emergency regulations that impact the health, safety or welfare of Tennessee residents.
- Haslam issued a similar regulatory freeze for 45 days in 2011.
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Book review: Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century, by John Marini
The following is a reprinted review by William Turton published in The Federalist of Professor John Marini’s book, Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century.
When Justice Clarence Thomas served as chairman of the Equal Employment Opportunity Commission during the Reagan administration, he brought two political theorists, John Marini and Ken Masugi, onto his staff. As close advisors to Thomas, they spent much time discussing the political principles of the Declaration of Independence and the Constitution and their application to contemporary American politics. These principles of natural rights, the separation of powers, and constitutionally limited government have served as the cornerstone of Thomas’s judicial philosophy throughout his nearly three decades on the Supreme Court.
Marini’s new book, which is edited by Masugi, is Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century. The collection of essays provides a critical analysis of how the administrative state has undermined America’s constitutional order and threatens to replace self-government with the rule of unaccountable experts.
In the chapters of this book, he argues that the administrative state—the centralized institutions of the federal bureaucracy—has produced a regime change in America. It has overthrown the Constitution and seeks to replace it with the unlimited authority of a bureaucracy ruled by an intellectual elite. In practice, the administrative state, not Congress, now exercises the power of making the laws under which we live.
To keep reading, click here.
Regulatory Tally
Federal Register
- The Federal Register in January grew to 958 pages. During the Obama administration from 2009-2016, the year-to-date total at the end of January averaged 5,617 pages.
- The Federal Register included 19 proposed rules and 38 final rules during January 2019. The regulations included an airworthiness directive for cockpit displays, crabbing vessels in Alaska, and restrictions on imported Chinese archaeological materials, among others.
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Office of Information and Regulatory Affairs (OIRA)
- OIRA’s recent regulatory review activity includes:
- Review of 17 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 46 significant regulatory actions each January.
- One rule approved without change; recommended changes to 13 proposed rules; three rules withdrawn.
- OIRA reviewed 20 significant rules in January 2018 and 87 significant rules in January 2017.
- As of February 1, 2019, OIRA’s website listed 92 regulatory actions under review.
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Footnotes
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