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Welcome to Checks and Balances
February 2021
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In this month’s edition of Checks and Balances, we review executive orders issued by President Joe Biden (D) that rescinded executive orders related to the administrative state issued by former President Donald Trump (R). We also examine the reintroduction of the Regulations from the Executive in Need of Scrutiny Act (REINS Act) in the 117th Congress as well as new federal legislation aimed at strengthening the nondelegation doctrine.
At the state level, we take a look at a ruling from the Oklahoma Supreme Court that reaffirmed the nondelegation doctrine in the state; executive agency reorganization efforts from governors in Vermont and South Dakota; and two constitutional amendments in Pennsylvania aimed at limiting the governor’s emergency powers.
We also highlight a new analysis that found a federal regulations-to-laws ratio of 19-to-1 in 2020. As always, we wrap up with our Regulatory Tally, which features information about the 113 proposed rules and 235 final rules added to the Federal Register in January and OIRA’s regulatory review activity.
In Washington
Biden revokes Trump executive orders on the administrative state
- What’s the story? President Joe Biden (D) in his first days in office issued three executive orders that revoked executive orders issued by former President Donald Trump (R) related to energy regulation policy, regulatory practice, and the civil service.
- In Executive Order 13990, Biden revoked a Trump executive order that established the Trump administration's policy for energy regulation.
- Biden’s E.O. 13992 revoked six Trump administration executive orders on regulatory practice. The revoked orders included the Trump administration’s 2-for-1 regulatory policy, which required agencies to eliminate two old regulations for each new regulation issued. Other revoked policies included the elimination of certain non-statutory advisory committees, a prohibition on binding agency guidance, a requirement that agencies provide the public with fair notice of regulations, and a requirement that agencies consider cost reduction efforts in administrative actions.
- Biden’s E.O. 14003 revoked four Trump administration executive orders on the civil service. The revoked policies included the creation of a new Schedule F in the excepted service for competitive service employees who serve in policy-related roles, efforts to streamline collective bargaining activities and reduce associated taxpayer costs, and a bid to expedite removal procedures for poor-performing federal employees.
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REINS Act reintroduced in 117th Congress
- What’s the story? U.S. Senator Rand Paul (R-Ky.) on January 27 joined 24 Republican U.S. senators to reintroduce the Regulations from the Executive in Need of Scrutiny Act (REINS Act), which would require Congress to approve new major rules proposed by executive branch agencies before they can be enforced.
- The REINS Act defines major agency regulations as those that have financial impacts on the U.S. economy of $100 million or more, increase consumer prices, or have significant harmful effects on the economy.
- Republican lawmakers have introduced the REINS Act during every session of Congress since the 112th Congress (2011-2012).
- Wisconsin became the first and only state to implement the REINS Act at the state level in 2017.
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Federal legislation aims to strengthen nondelegation doctrine
- What’s the story? A new bill aims to prohibit Congress from delegating legislative power to other branches of government, including administrative agencies. The bill would strengthen the federal nondelegation doctrine—an administrative law principle that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities.
- U.S. Senator Rand Paul (R-Ky.) introduced the legislation on January 28.
- The bill would also direct the Comptroller General of the United States to issue a report to Congress detailing what the proposed legislation describes as, in its words, “the extent of the problem of unconstitutional delegation to the end that such delegations can be phased out.”
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In the States
Oklahoma Supreme Court decision reaffirms nondelegation doctrine
- What’s the story? The Oklahoma Supreme Court on January 26 reconfirmed the state court’s jurisprudence in support of the nondelegation doctrine in the gambling case Treat v. Stitt.
- Oklahoma lawmakers sued Governor Kevin Stitt (R), arguing that he had exceeded his authority when he entered into two 2020 tribal gambling compacts on behalf of the state.
- The Oklahoma governor’s authority to enter into tribal compacts is statutory rather than constitutional—meaning that it is delegated to the governor by the legislature through specific laws.
- Under the State Tribal Gaming Act, the Oklahoma governor can negotiate tribal gambling compacts within the bounds of the statute’s Model Compact. If the governor seeks to enter into a treaty that differs from the Model Compact, they must obtain approval from the legislature’s Joint Committee, which oversees agreements between tribes and the state.
- The court held that Stitt had unlawfully entered into the tribal gambling compacts because the compacts deviated from the bounds of the Model Compact. It also held that Stitt failed to obtain the approval of the Joint Committee for the non-standard compacts.
- The court in July had previously held that two other tribal gambling compacts entered into by Stitt were similarly unlawful.
- Justice James Winchester authored the case opinion. Justices Richard Darby, Yvonne Kauger, Douglas Combs, Noma Gurich, and John Reif concurred. Justices James Edmunson and Tom Colbert recused themselves from the case. John Kane dissented, claiming that the tribes should have been indispensable parties to the lawsuit.
- Justice Dustin Rowe concurred with the result, but also argued that approval of the compacts by the Joint Committee would violate the nondelegation doctrine because the committee does not have the authority to amend Oklahoma law.
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Governors focus on agency reorganization
- What’s the story? Governors in two states have recently issued executive orders aimed at reorganizing agencies of the executive branch—with different results.
- The Vermont House of Representatives on February 5 voted 108-40 to block Vermont Governor Phil Scott’s (R) executive order that would have established a new state law enforcement agency.
- Scott’s executive order, issued on January 14, would have merged all of the state’s law enforcement divisions under a newly created Agency of Public Safety.
- Legislators argued that the proposed agency merger raised concerns about costs and agency independence that would be better addressed through the legislative process.
- Vermont legislators previously blocked two of Scott’s executive orders aimed at reorganizing executive agencies. One of these orders—a proposal to merge the Vermont Lottery Commission and the Department of Liquor Control—was later approved via legislation.
- In a statement following the House vote, Scott expressed appreciation for lawmakers’ interest in pursuing the reorganization plan through legislation.
- South Dakota Governor Kristi Noem (R) on January 19 issued a similar executive order that would restructure executive branch agencies by merging the Department of Agriculture and the Department of Environment and Natural Resources to form a new Department of Agriculture and Natural Resources (DANR). Noem claims that the merger will strengthen agriculture operations in the state while promoting conservation efforts.
- The state legislature has the authority to oppose the merger, but no lawmakers had raised objections as of February 5.
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Pennsylvania voters will decide whether to limit governor’s emergency powers
- What’s the story? The Pennsylvania House of Representatives on February 5 approved two constitutional amendments that will allow Pennsylvania voters to decide whether to limit the governor’s emergency powers.
- The Pennsylvania State Senate previously approved the constitutional amendments on January 26. Both Republican-controlled chambers of the Pennsylvania General Assembly voted to approve the constitutional amendments largely along party lines.
- The first constitutional amendment would limit a governor’s emergency disaster declaration to 21 days and allow state legislators to extend the declaration by passing a concurrent resolution. Under the current state constitution, the governor’s emergency disaster declaration can last up to 90 days and be extended indefinitely.
- The second constitutional amendment would authorize the General Assembly to terminate an emergency disaster without the governor’s approval. When the General Assembly passed concurrent resolutions to terminate the governor’s coronavirus-related emergency disaster last summer, the state Supreme Court ruled that gubernatorial approval was required.
- Republican lawmakers claim that the constitutional amendments would balance the separation of powers in the state and bring emergency power closer to the hands of the people. Democratic opponents, including Governor Tom Wolf, argue that the constitutional amendments seek to usurp executive power and would slow down the state’s emergency response by requiring legislative action.
- The constitutional amendments will appear on the May 18, 2021, primary ballot.
- Thirty-three state legislatures, according to the National Conference of State Legislatures, have moved in 2021 to place limits on executive emergency authority as of February 8.
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Study finds 19 regulations for every law passed in 2020
New analysis from the Competitive Enterprise Institute (CEI) found that the number of regulations issued by federal administrative agencies outpaced on a 19-to-1 ratio the number of laws passed by Congress and enacted by the president in 2020. Congress and the president enacted 178 laws in 2020 while federal agencies issued 3,353 regulations. The same analysis found the following regulations-to-laws ratios over the past decade:
- 2019: 28-to-1
- 2018: 11-to-1
- 2017: 34-to-1
- 2016: 18-to-1
- 2015: 30-to-1
- 2014: 16-to-1
- 2013: 51-to-1
- 2012: 29-to-1
- 2011: 47-to-1
- 2010: 16-to-1
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- Click here to read the full analysis, which includes regulations-to-laws ratios dating back to 2003.
Regulatory Tally
Federal Register
- The Federal Register in January reached 7,614 pages.
- The January Federal Register included 113 proposed rules and 235 final rules. These included changes to immigration fees and revisions to drinking water regulations, among other rules.
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Office of Information and Regulatory Affairs (OIRA)
OIRA’s January regulatory review activity included the following actions:
- Review of 132 significant regulatory actions.
- Seven rules approved without changes; recommended changes to 57 proposed rules; 67 rules withdrawn; one rule subject to a statutory or judicial deadline.
- As of February 1, 2021, OIRA’s website listed 14 regulatory actions under review.
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