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The Checks and Balances Letter: October 2018
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 American people deserve a regulatory system that works for them.” So begins Executive Order 12866, which we review on its 25th anniversary. And, with a new SCOTUS term underway, we visit two cases involving issues central to the administrative state: Chevron deference and the nondelegation doctrine. We also look at legislation to implement provisions of the Trump administration’s executive branch reorganization plan, and the appeal of a federal judge’s decision blocking portions of Trump’s civil service reforms. Our state coverage includes a motorist’s challenge to being ticketed by an employee of the Iowa Department of Transportation, the New Jersey Supreme Court’s affirmation of deference to an ALJ in the absence of agency oversight, and a California administrative law judge overruling a local school district in allowing cannabis oil to be administered on campus to a five-year-old epileptic.
We wrap up this edition with Ted Hirt’s absorbing review of Professor Joseph Postell’s new book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, generously shared by the Federalist Society.
The Checks and Balances Letter
In Washington
September 30 marked 25th anniversary of Executive Order 12866
- What's the story? For 25 years, Executive Order 12866 has governed federal rulemaking and executive branch oversight of regulatory policy. Issued by President Bill Clinton in 1993, the executive order reiterated (with some tweaks) the major provisions of President Ronald Reagan’s 1981 Executive Order 12291, which required executive branch agencies to subject proposed rules to cost-benefit analysis; barred issuance of rules for which the costs exceeded the benefits; required executive branch agencies to prepare a regulatory impact analysis for every major rule; and required such rules to be reviewed by the Director of OMB.
- E.O. 12866 also provides for public comments during the rulemaking process, and directs agencies to publicly release documents related to rulemakings.
- EO 12866 authorizes OMB’s Office of Information and Regulatory Affairs (OIRA) to review significant regulatory actions--those that may have a large impact on the economy, environment, public health or state and/or local governments.
- In its current incarnation, OIRA is overwhelmed by the volume of rulemaking. With a staff of about 50, it is reviewing the work of agencies that have a combined total of 279,000 personnel, a ratio of more than 5,600 to 1.
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Bill to reorganize executive branch sent to the full Senate
- What's the story? The Reforming Government Act of 2018 was forwarded to the Senate floor on a September 26 vote of the Committee on Homeland Security and Government Affairs. If enacted, the bill would fast-track implementation of the reorganization proposal. Find out more about the reorganization plan in the July edition of The Checks and Balances Letter.
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DOJ appeals ruling blocking Trump’s civil service reforms
- What's the story? The DOJ on September 25 appealed a federal judge’s ruling that struck down several provisions of President Trump's plan to reform the civil service. As a candidate, Trump pledged to overhaul the system he said is rife with waste, fraud and abuse. Find out more about the case in last month’s edition of The Checks and Balances Letter.
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In the States
Do Iowa DOT officers have the authority to ticket motorists?
- What's the story? The Iowa Supreme Court heard oral arguments on September 12 in Rickie Rilea and Timothy Riley v. Iowa Department of Transportation. At issue is whether officers of the Iowa Department of Transportation (IDOT) exceeded their authority by ticketing noncommercial motorists for traffic violations.
- An attorney for Rickie Rilea and Timothy Riley, who received traffic citations from IDOT officers in 2017, argued that the Iowa Legislature never conferred police powers on the DOT employees.
- DOT attorney Robin Formaker argued that the district court’s ruling the DOT relied inappropriately on a 1948 statute, and failed to account for changes in the law.
- If the Supreme Court upholds the district court ruling, the state would be required to refund fines and remove citations from thousands of drivers’ records.
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New Jersey Supreme Court upholds state law deferring to ALJ decisions in the absence of agency review
- What's the story? The New Jersey Supreme Court ruled on September 17 that a state ALJ’s ruling is entitled to deference even when the commission tasked with reviewing the ALJ’s decision does not have the quorum required to act before the statutory deadline.
- Under state law, an ALJ’s decision is considered final and is entitled to deference if the reviewing agency does not modify or reject the decision within a set timeframe. The case questioned whether the same level of deference applies if the reviewing commission fails to act within the prescribed period.
- The court unanimously upheld the six-month suspension of a state employee imposed by an ALJ for the Civil Service Commission. The employer in the case, the Department of Community Affairs (DCA) sought to fire the employee for using a slur to describe a supervisor.
- The New Jersey Supreme Court ruled that the appellate court erred in reviewing the case de novo instead of deferring to the ALJ’s determination.
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California ALJ complies with state law, violates federal law in ruling that student can receive medical cannabis oil in school
- What's the story? Administrative Law Judge Charles Marson, of the California Office of Administrative Hearings' Special Education Division, ruled on September 21 that a five-year-old girl with pediatric epilepsy can have cannabis oil administered to her by a nurse on campus during the school day.
- Marson stated that Adams was in compliance with state medical marijuana laws, and that enforcement of federal law prohibiting the possession and use of marijuana was unlikely.
- The Rincon Valley Union School District argued that the federal prohibition of cannabis oil on school property could put the school’s funding at risk.
- School district personnel, as of September 23, had not decided whether to appeal.
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SCOTUS spotlight: The 2018-2019 term opens
Two cases that bear on the administrative state were among the first argued when the U.S. Supreme Court began its new term on Oct. 1.
- The first case, Weyerhaeuser Company v. United States Fish and Wildlife Service concerns the U.S. Fish and Wildlife Service's (FWS) designation of private land in Louisiana as critical habitat for the dusky gopher frog.
- Under the Endangered Species Act, property owners of critical habitat are barred from most uses of the property. In this case, the FWS designation requires the property owners to uproot trees and replace them with different species; halt timber management activities; and allow the land to be populated with frogs.
- The Fifth Circuit affirmed the district court's ruling that deferred to the FWS habitat designation.
- The Supreme Court's decision could turn on the degree of deference afforded the FWS, and what constitutes agency discretion. On the court’s second day, the justices heard arguments in Gundy v. United States. The case involves whether mandatory registration as a sex offender may be imposed retroactively.
- The legal issue concerns whether the Constitution allows Congress to empower the U.S. attorney general to act retroactively without explicit guidance on use of that power.
- It has been 83 years (1935) since the Court voided a government action on the basis of the nondelegation doctrine.
Book review: Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, by Joseph Postell
The following is a reprinted review by Ted Hirt published in the Federalist Society Review of Professor Joseph Postell’s book, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.
In Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, Joseph Postell, Assistant Professor of Political Science at the University of Colorado-Colorado Springs, provides a detailed and scholarly review of our government’s reliance on administrative agencies to administer benefits and regulate citizen conduct. The story he recounts is fascinating, and it manages to be both detailed and engaging.
Postell develops several themes. First, he argues persuasively “that there always has been a tension between administrative power and American constitutionalism.” Tracing the history of the administrative state from the founding to today, Postell challenges the thesis of some scholars that the administrative state’s “crisis of legitimacy” is simply a recent phenomenon that has been ginned up by conservative critics. Second, Postell contends that attempts by various progressives and modern liberals to incorporate principles of American constitutionalism into the administrative process has not resolved this tension in a satisfactory manner. Postell next examines the embrace of deferential judicial review of agency action by some conservative jurists. Finally, he asks how constitutional government can be rescued from an expansive administrative state.
Postell’s work focuses predominantly on our nation’s constitutional history and how administrative agencies have functioned within it. That context helps us understand the current crisis of legitimacy of the administrative state. Recounting the past also provides some clues to how our republic can reconcile the competing values of constitutionally required separation of powers, limited government, and government accountability on one hand, and efficiency in administration on the other.
To keep reading, click here.
Regulatory Tally
Federal Register
- The Federal Register in September increased by 4,450 pages, bringing the year-to-date total to 49,264 pages. Between 2009-2016, the year-to-date total at the end of September averaged 59,770 pages.
- The Federal Register included 146 proposed rules and 275 final rules during September 2018. The regulations covered a variety of topics, including minimum wages for federal contractors, skate fishing activities, and the classification of certain cannabidiol medications as Schedule V drugs.
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
- OIRA’s recent regulatory review activity includes:
- Review of 21 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 45 significant regulatory actions each September.
- No rules approved without change; recommended changes to 21 proposed rules.
- Review of 245 significant rules since January, compared to 167 significant rules during the same period in 2017.
- As of October 1, 2018, OIRA’s website listed 97 regulatory actions under review.
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Footnotes
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