The Checks and Balances Letter: May 2018

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 round up recent state-level activity related to the administrative state, including responses to judicial deference in Arizona and Florida and a lawsuit concerning the REINS Act in Wisconsin. We also take a closer look at news, scholarship, and analysis concerning federal administrative adjudicators—officials who preside over administrative hearings and proceedings to resolve disputes. We wrap up with a tally of the latest additions to the Federal Register as well as the number of rules and regulatory actions reviewed by the Office of Information and Regulatory Affairs (OIRA).

The Checks and Balances Letter

In the news

Department of Justice announces new quotas for immigration judges

What's the story? In an effort to reduce the agency’s case backlog, the U.S. Department of Justice (DOJ) sent a message to its immigration judges (IJs)—federal administrative adjudicators more commonly known as administrative judges (AJs)—on March 31 announcing that new case quotas for IJs would take effect on October 1. The DOJ stated that it will begin to evaluate the job performance of IJs based on how quickly they process immigration cases, according to an April 2 report in The Wall Street Journal. The new standards will require IJs to process 700 cases a year. On average, IJs currently complete 678 cases per year. Immigration cases generally concern granting legal status to foreign nationals, deporting individuals charged with immigration crimes, and hearing appeals from individuals seeking asylum. The new standards will also require that higher courts send back fewer than 15 percent of an IJ’s decisions, in addition to other metrics. The WSJ reported that the DOJ’s backlog is nearing 700,000 cases.

Want to go deeper? Check out these Ballotpedia articles for more information about IJs/AJs, federal administrative adjudicators, and the adjudication process::

Arizona and Florida respond to judicial deference

What's the story? State-level approaches to judicial deference, in which a court yields to an agency's interpretation of a statute or regulation that the agency administers, vary significantly. Some state courts have implemented state-level judicial deference procedures similar to the federal-level deference regimes established under the landmark 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and other Supreme Court cases.

Arizona: On April 11, 2018, Arizona Governor Doug Ducey (R) signed House Bill 2238 into law. H.B. 2238 instructs state courts handling proceedings between an agency and regulated party to decide all questions of law without deference to state agencies, including on matters of constitutional, statutory, and regulatory interpretation. This requirement "applies in any action for judicial review of any agency action that is authorized by law." Arizona is the first and only state to approve this type of legislation as of May 2018.

Florida: The Florida Marsy's Law Crime Victims Rights, Judicial Retirement Age, and Judicial Interpretation of Laws and Rules Amendment is one of eight constitutional amendments referred to the November 6, 2018, ballot by the Florida Constitution Revision Commission (CRC) on April 16, 2018. The CRC bundled three proposed amendments related to trials, judges, and courts into this one ballot measure. If enacted, the third part of the measure would prohibit state courts from deferring to an administrative agency’s interpretation of a statute or rule in legal cases. Instead, the measure would require state courts to interpret statutes or rules de novo—without deference to the legal opinions of administrative agencies or previous judgments.

Want to go deeper? Click the links below for more information about state responses to judicial deference and Florida’s ballot measure:

Wisconsin Supreme Court takes up REINS Act lawsuit against state Department of Public Instruction, superintendent

What's the story? On April 13, the Wisconsin Supreme Court agreed to hear Koschkee v. Evers, a case against the Wisconsin Department of Public Instruction (DPI) and its head, Superintendent Tony Evers. The lawsuit alleges that Evers and DPI are in violation of the Wisconsin Regulations from the Executive in Need of Scrutiny (REINS) Act, legislation signed into law in August 2017 that requires state agencies to submit statements of scope for proposed regulations to the governor and the state department of administration (DOA). The Wisconsin REINS Act also requires legislative authorization of major rules and allows the Joint Committee for the Review of Administrative Rules to indefinitely suspend the promulgation of a proposed rule under certain circumstances.

Wisconsin is the first and only state to approve REINS Act legislation as of May 2018. The Wisconsin REINS Act reflects the provisions of the federal REINS Act—pending legislation sponsored by U.S. Representative Doug Collins (R-Ga.) and U.S. Senator Rand Paul (R-Ky.) that would allow Congress to issue resolutions of disapproval to nullify certain agency rules and require congressional approval of certain major agency regulations before those regulations could be implemented.

The lawsuit alleges that Evers and DPI have violated the state REINS Act by not sending statements of scope to DOA or the governor. Evers and DPI contend that because the state superintendent is a constitutional office in Wisconsin, his agency is not subject to gubernatorial control under the REINS Act. Furthermore, Evers and DPI contend that the issue presented in Koschkee was already settled in the 2016 case Coyne v. Walker. Oral arguments have been scheduled for May 15, 2018.

Want to go deeper? Check out these Ballotpedia articles for information about state-level REINS Acts and the defendants in Koschkee v. Evers:

Featured scholarship

Each edition of The Checks and Balances Letter spotlights notable scholarship examining key features or functions of the administrative state. This month, we take a closer look at “Against Administrative Judges” (2016) by University of Georgia law professor Kent Barnett.

"Against Administrative Judges" by Kent Barnett (2016)

Published in the June 2016 edition of the UC Davis Law Review, this article by American legal scholar Kent Barnett centers on the distinction between the two types of federal administrative adjudicators—administrative law judges (ALJs) and administrative judges (AJs). Barnett argues that federal agencies could benefit from increasing the use of ALJs in agency adjudication proceedings as opposed to administrative AJs. He observes that ALJs enjoy oversight and removal protections under the Administrative Procedure Act (APA) that allow them to operate with more independence from agency control than AJs. The increased independence of ALJs, argues Barnett, allows them to operate with more impartiality than AJs, which reduces due process concerns in agency adjudication and increases the likelihood that an agency will receive judicial deference. Barnett also examines and proposes solutions to address conventional arguments used by agencies to support the use of AJs over ALJs, including perceived cost savings, subject-matter expertise, and efficiency.

Click here for Ballotpedia’s full review of “Against Administrative Judges” by Kent Barnett.

Featured SCOTUS case

Lucia v. SEC (2017-2018)

In brief: Lucia v. SEC concerns the role of ALJs within executive branch agencies, including their exercise of judicial and legislative functions otherwise reserved for the judiciary and Congress by the U.S. Constitution. The case raises the question of whether the adjudicatory proceedings conducted by these ALJs are constitutional if the ALJs have not been hired under the requirements of the Appointments Clause. The Appointments Clause is much more than simply a procedural directive. It is an essential safeguard for political accountability, the separation of powers, and the rule of law.

The case: Raymond J. Lucia and Raymond J. Lucia Companies (referred to collectively as Lucia) were party to an administrative proceeding before an SEC ALJ. After an adverse ruling from the ALJ, Lucia appealed to the SEC for review. Lucia argued that the administrative proceeding was unconstitutional because the ALJ was not properly appointed as an Officer of the United States within the meaning of the Appointments Clause—a process that requires ratification by the SEC commissioners. At the time, SEC staff appointed ALJs and they were not directly ratified by the commissioners themselves. The United States Court of Appeals for the District of Columbia Circuit concluded that ALJs did not qualify as officers under the Appointments Clause, and Lucia appealed to the Supreme Court.

Why it matters:

Impact on ALJ independence: Currently, ALJs can only be fired for good cause by the Merit Systems Protection Board (MSPB). If if the Supreme Court determines that ALJs are inferior officers, the cause removal protections for ALJs under the APA could be deemed unconstitutional—thus strengthening executive oversight of ALJs.
Impact on pending and appealed SEC cases: If the Supreme Court finds that ALJs are officers of the United States under the Appointments Clause, the validity of the SEC’s administrative proceedings before improperly appointed ALJs and any cases on appeal could be called into question. As of January 2018, more than 100 cases were under consideration by SEC ALJs and a dozen cases on were on appeal in federal courts.
Impact on other agencies: Lucia will have broader implications for administrative proceedings conducted by ALJs in other federal agencies. The Solicitor General stated that the case “affects not merely the Commission’s enforcement of the federal securities laws, but also the conduct of adversarial administrative proceedings in other agencies within the government.” Mark Perry, Supreme Court counsel for Raymond Lucia, notes that the majority of ALJs work for the Social Security Administration and would not likely be affected by a ruling in Lucia’s favor, but about 142 ALJs across other agencies “exercise significant power in enforcement proceedings” and could be subject to the Appointments Clause.

Want to know more about Lucia and ALJs?

Check out Ballotpedia’s webinar on Lucia v. SEC via our YouTube channel: Webinar on Lucia v. SEC.
Our webinar breaks down the key arguments in the case and analyzes the function of ALJs within federal administrative agencies. Brush up on some key facts about ALJs from our webinar below:

Still looking for more? Ballotpedia’s white paper on the case is available here: What does Lucia v. SEC mean for the administrative state?

Point/Counterpoint

This month, we share competing frameworks concerning the role of federal administrative adjudicators—officials who preside over administrative hearings and proceedings to resolve disputes in a process called adjudication. These officials can be divided into two categories: administrative law judges (ALJs) and administrative judges (AJs).

Support: Administrative law judges serve as impartial adjudicators

Defenders of federal administrative adjudicators argue that the APA established ALJs to serve as impartial decision-makers capable of shielding citizens from the bias of political actors or members of the bureaucracy. Randall Frye, president of the Association of Administrative Law Judges, presented the following defense of ALJs before a 2012 congressional hearing:

“

The APA was enacted to ensure that the American people were protected from arbitrary decision making by government bureaucrats. The grant of decisional independence to federal administrative law judges is fundamental to the ability of the ALJ to bring justice to the American people. When federal agencies overreach and encroach on our decisional independence, the promise of Constitutional due process to the American people is broken.^[1]

”

Opposition: The creation of an administrative judiciary

The APA established ALJs to hear evidence and issue decisions in agency disputes. Scholars, including Bernard Schwartz, have criticized the APA for effectively establishing a separate judiciary within administrative agencies. Schwartz described the decisional conflicts presented by ALJs in his 1996 paper "Agency Adjudication, the Importance of Facts, and the Limitations of Labels" for the Washington and Lee Law Review:

“

The APA turns around 'the one who decides must hear' principle by vesting the one who hears with the power to decide. The ALJs - the administrative judiciary set up under the APA - have not only been given the judicial title; they have also been vested with most of the decision-making power of trial judges. The APA empowers the ALJ to issue an initial decision that becomes the decision of the agency unless appealed. It is true that the APA gives the agency authority to require (in specific cases or by general rule) that the record be certified directly to it for decision. In such a case, the agency retains all decisionmaking power, with the ALJ relegated to authority only to recommend a decision. In virtually all federal agencies, however, the power to make an initial decision has been delegated to the ALL The result, in the vast majority of federal agency cases, is to have an initial decision by the judge who presided at the hearing.^[1]

”

Competing views: Due process and federal administrative adjudicators

In his 2016 article “Against Administrative Judges” (see above), law professor Kent Barnett argued that the status of AJs as agency employees, as opposed to the independent status of ALJs, leads to partiality in adjudication proceedings overseen by AJs. The partiality of AJ rulings results in a violation of due process, according to Barnett:

“

The two most relevant decisions concerning state judges – Tumey v. Ohio and Ward v. Village of Monroeville – are important because they reveal that pecuniary incentives (whether flowing directly to the adjudicator or a budget that the adjudicator oversees) create an unconstitutional appearance of partiality. Due process takes offense when a 'judge . . . has a direct, personal, substantial pecuniary interest in reaching a conclusion against [a party] in his case.'^[1]

”

In a 2017 interview with Encounter Books regarding the publication of The Administrative Threat, Columbia Law School professor Philip Hamburger discussed the independence of administrative law judges and the implications for due process in administrative adjudication:

“

In the administrative state, by contrast, the prosecutor is the agency that made the rule, and the judge is an employee of the agency, an administrative law judge, or a mere so-called administrative judge, who has no protection independence. And they decide the cases without juries, without real due process, and in fact, they’re not really independent. Even those who are said to be independent — the administrative law judges — in fact, are not allowed to hold against the government on the unconstitutionality of the provisions, the rules that they’re applying.

So in fact, there’s profound judicial bias in the administrative judicial system. It’s hard to think of a greater violation of due process, and jury rights and other rights protected by the Bill of Rights.^[1]

”

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 April 30 to May 4, the Federal Register included the following additions:

The number of pages in the Federal Register increased by 2,272 pages, bringing the year-to-date total to 22,176 pages.
A total of 561 documents were included in the week’s Federal Register, including 409 notices, 13 presidential documents, 61 proposed rules, and 78 rules.
Regulations covered a variety of topics, including menu labels, endangered species, and communications infrastructure.

The following table breaks down weekly additions to the Federal Register in April 2018:

Additions to the Federal Register, 2018
Week	Notices	Presidential documents	Proposed rules	Rules	Total documents added*	Total pages added
May 7 - May 11	409	13	61	78	561	2,272
April 30 - May 4	440	11	44	63	558	1,178
April 23 - April 27	485	3	38	70	596	1,112
April 16 - April 20	448	5	50	61	564	1,432
April 9 - April 13	490	6	36	72	604	1,164
April 2 - April 6	425	9	45	70	549	1,394
Total 2018	8,065	101	706	1,169	10,041	22,176
*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 1,062 pages, bringing the year-to-date total to 21,302 pages. As of May 4, the 2018 total trailed the 2017 total by 1,398 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

The Office of Information and Regulatory Affairs (OIRA) is a United States federal government office located within the U.S. Office of Management and Budget (OMB) under the Executive Office of the President. Its responsibilities include regulatory review, clearance and approval of government information collection requests, and oversight of government statistical practices and privacy policies. OIRA is responsible for reviewing and coordinating what it deems all significant regulatory actions made by federal agencies. Significant regulatory actions have or may have large impacts on the economy, environment, public health, state or local governments. They may also conflict with other agency regulations or presidential priorities.

In April, OIRA reviewed 32 significant regulatory actions issued by federal agencies. OIRA approved one of these rules with no changes and approved the intent of 29 rules while recommending changes to their content. Two rules were withdrawn from the review process by the issuing agencies.

So far, the office has reviewed a total of 92 significant rules this year. As of May 1, 2018, OIRA’s website listed 58 regulatory actions under review.

Completed OIRA reviews of administrative rules, 2018
Month	Economically significant rules	Not economically significant rules	Total rules reviewed	Consistent without change	Consistent with change	Returned	Withdrawn
April	9	23	32	1	29	0	2
March	4	16	20	1	16	0	3
February	2	18	20*	1	15	0	3
January	5	15	20	0	15	0	5
Total 2018	20	72	92	3	75	0	13
Pending actions (as of May 1, 2018): 58

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

Footnotes

↑ ^1.0 ^1.1 ^1.2 ^1.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.

[quotedisclaimer-1] 1.0 ^1.1 ^1.2 ^1.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.

[1]

The Checks and Balances Letter: May 2018

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