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October 2021
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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 the uncertainty surrounding the status of the federal immigration judge’s union; a new constitutional challenge to adjudication by administrative law judges (ALJs) at the U.S. Department of Labor; and a call from Republican lawmakers to seek congressional review of President Joe Biden’s (D) proposed vaccine mandate on private businesses.
At the state level, we take a look at Arizona’s legal challenge to Biden’s vaccine mandate; the North Carolina governor’s veto of a bill that would have transferred executive power to state legislators; and the continued executive power struggle between Idaho’s governor and lieutenant governor.
We also highlight recent remarks from Judge Neomi Rao of the United States Court of Appeals for the District of Columbia Circuit regarding executive involvement in the legislative process. As always, we wrap up with our Regulatory Tally, which features information about the 167 proposed rules and 286 final rules added to the Federal Register in September and OIRA’s regulatory review activity.
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BALLOTPEDIA |
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In Washington
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Immigration Judge’s union in administrative limbo
What’s the story?
The status of the National Association of Immigration Judges (NAIJ) remained uncertain as the U.S. Department of Justice (DOJ) sought to undo the union’s decertification while simultaneously claiming that the union no longer exists—a seeming contradiction that has mystified union leaders, according to NAIJ president Mimi Tsankov.
The Federal Labor Relations Authority (FLRA) ordered the union’s decertification in November 2020, arguing that IJs—a type of federal administrative adjudicator—constitute management officials for collective bargaining purposes. NAIJ filed a motion for the FLRA to reconsider, which the union claims delayed an agency order to implement the decertification. NAIJ officials argue that the DOJ’s subsequent action barring the union’s activities violated NAIJ’s collective bargaining agreement since the FLRA had yet to rule on NAIJ’s motion.
The DOJ changed course in June, both withdrawing its opposition to NAIJ’s motion and seeking permission from the FLRA to rescind the underlying decertification order. Contrary to NAIJ’s position, however, the department claims that the underlying order remains in effect since the FLRA has yet to issue a ruling on NAIJ’s motion to reconsider.
“As the authority has not ruled on any filings post its November 2020 order, the November 2020 order remains in full force and effect,” argued DOJ attorneys. “As a result of the authority’s November 2020 ruling, there are no longer any employees in the bargaining unit. As there are no employees in the bargaining unit, in essence, NAIJ is defunct.”
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New constitutional challenge to ALJs
What’s the story?
A nonprofit on September 8 filed suit in the United States District Court for the District of New Jersey claiming that the U.S. Department of Labor’s use of administrative law judges (ALJs) to adjudicate certain visa disputes violates Article III of the U.S. Constitution because it allows the department to serve “as prosecutor, judge, and jury.” The case follows in the footsteps of Lucia v. Securities and Exchange Commission (SEC) and United States v. Arthrex Inc., in which the U.S. Supreme Court found constitutional flaws in agency rules governing ALJs.
The organization Institute for Justice appealed a final order from the U.S. Department of Labor’s Administrative Review Board holding that New Jersey-based Sun Valley Farms had violated laws governing the H-2A visa program for agricultural workers. The nonprofit claims that the DOL’s governing statute is silent on the department’s use of ALJs and that Congress never authorized ALJs to adjudicate H-2A visa disputes. The challengers contend that the use of ALJs in such cases violates Article III of the U.S. Constitution, which calls for an independent judicial branch.
“We’re focused in this case on adjudication for H-2A violations, but the implications of these Article III-type challenges extend beyond that to the whole system of ALJs for the Department of Labor,” said Institute for Justice attorney Rob Johnson in an interview with Bloomberg Law. Johnson argued that H-2A cases, which can result in penalties or property loss, should be heard before independent Article III judges.
The U.S. Supreme Court has addressed constitutional challenges to ALJs in two recent cases. In 2018, the court held in Lucia that SEC ALJs qualified as officers of the United States and must be appointed by the agency head in accordance with the Appointments Clause of the U.S. Constitution. In the 2021 Arthrex case, the court held that the statute governing the Patent and Trademark Office (PTO) violated the Appointments Clause because the PTO director lacked direct review power over decisions by administrative patent judges (positions similar to ALJs).
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Republican lawmakers call for CRA review of vaccine mandate on private businesses
What’s the story?
A coalition of Republican legislators aims to challenge President Joe Biden’s (D) vaccine mandate on private businesses by calling for congressional review of the rule through a Congressional Review Act (CRA) resolution.
Biden on September 9 announced that the U.S. Department of Labor would issue a rule requiring employees of businesses with 100 or more staff to either obtain a coronavirus (COVID-19) vaccination or undergo weekly testing. The Occupational Safety and Health Administration (OSHA) on October 12 submitted the proposed rule to the White House for review.
“We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us,” said Biden during a White House briefing, adding that the “unvaccinated minority can cause a lot of damage, and they are.”
U.S. Senators Roger Marshall (R-Kansas), Mike Braun (R-In.), Dan Sullivan (R-Ark.), Bill Hagerty (R-Tenn.), Mike Lee (R-Ut.), and Congressman Fred Keller (PA-12) stated their intent to seek congressional review of the mandate once OSHA issues the final rule. CRA resolutions create a path for lawmakers to review federal agency rules and vote to reject them. To reject a rule, both chambers of Congress must pass a resolution disapproving the rule and President Joe Biden (D) must sign the resolution into law.
“The White House continues to ignore the Constitution as well as the science proving the benefits of natural immunity so they can justify an Executive Order that wipes out Americans’ control over their own healthcare options,” said Marshall in a September 15 press release. “Simply put, the Administration is overstepping its authority and we must hold them accountable with a formal challenge under the Congressional Review Act.”
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In the States
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Arizona attorney general challenges Biden’s vaccine mandate on private businesses
What’s the story?
Arizona Attorney General Mark Brnovich (R) on September 14 filed a lawsuit in the United States District Court for the District of Arizona arguing that President Joe Biden’s (D) proposed vaccine mandate on private businesses violates the Equal Protection Clause of the U.S. Constitution.
Biden on September 9 announced that the U.S. Department of Labor would take regulatory action to mandate that businesses with 100 or more employees require their employees to either receive a coronavirus (COVID-19) vaccination or undergo weekly testing. The Occupational Safety and Health Administration (OSHA) on October 12 submitted the proposed rule to the White House for review.
Brnovich claims that the proposed mandate violates the Fourteenth Amendment’s Equal Protection Clause by placing vaccination and testing requirements on U.S. citizens that do not extend to immigrants residing in the country without legal permission. The Biden administration’s proposed “policy of absolutely excluding unauthorized aliens from all vaccination requirements, while subjecting U.S. citizens to multiple, unprecedented, sweeping, and intrusive mandates is wildly unconstitutional and should not stand,” argued Brnovich in the lawsuit.
The lawsuit also suggests that OSHA could be unlawfully exercising legislative power by issuing the mandate.
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North Carolina governor vetoes bill requiring legislative approval of agency settlements
What’s the story?
North Carolina Governor Roy Cooper (D) on September 27 vetoed legislation that would have transferred executive powers to the state legislature by requiring legislative approval of certain state agency lawsuit settlements.
State legislators on September 16 voted along party lines to approve Senate Bill 360, which would have required legislative approval for state agency settlements in cases involving the speaker of the House of Representatives or the president pro tempore of the state Senate.
The legislation arose after the state Board of Elections in 2020 entered into a settlement agreement that loosened voting requirements in response to the coronavirus (COVID-19) pandemic. Republican leaders described the settlement as a collusive agreement by the Democrat-controlled executive branch that ignored the General Assembly’s decision to require witness signatures on absentee ballots.
In his veto message, Cooper claimed that the legislation would have unlawfully transferred executive branch authority to the legislative branch. “This bill is unconstitutional and unwise, and would have prevented the Attorney General from doing his job,” argued Cooper.
“This bill is necessary to keep corrosive, secretly negotiated rule changes out of future elections,” state Sen. Paul Newton (R) remarked on social media in response to Cooper’s veto. “Governor Cooper just deepened distrust in the electoral process at a time when we should focus on improving it.”
Republican leaders would need to garner Democratic support in order to override Cooper’s veto before the close of the legislative session, according to The News & Observer.
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Déjà vu in Idaho executive power struggle
What’s the story?
The executive power struggle between Idaho Governor Brad Little (R) and Lieutenant Governor Janice McGeachin (R) heated up last month when McGeachin, during Little’s absence from the state, attempted to deploy the Idaho National Guard to the southern border and issued an executive order outlawing vaccine mandates.
McGeachin took similar action in May when she issued an executive order banning mask mandates in her capacity as acting governor while Little traveled to a conference out of state. McGeachin claimed that the order aimed “to protect the rights and liberties of individuals and businesses.” Little rescinded the order, referring to McGeachin’s action as an “irresponsible, self-serving political stunt.”
McGeachin, who is running for governor in 2022, attempted to issue two further directives during Little’s most recent absence from the state on official business. McGeachin on October 5 released an executive order banning vaccine requirements and mandatory testing in schools. She claimed on social media that the order fixed Little’s April executive order banning vaccine mandates by extending it to cover public schools and universities.
McGeachin also requested information from the head of the Idaho National Guard, Major General Michael Garshak, about deploying troops to the southern border. Garshak responded that the border states had not requested Idaho’s assistance and stressed that “the Idaho National Guard is not a law enforcement agency.”
Little described McGeachin’s attempted troop deployment on Twitter as political grandstanding. He issued an executive order the following day to rescind McGeachin’s order, referring to her action as a “redundant and unwarranted use of executive powers.” Little’s order could lay the groundwork for a legal challenge over the exercise of executive power in Idaho, according to Fox News.
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Neomi Rao urges executive branch to scale back legislative involvement
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Judge Neomi Rao of the U.S. Court of Appeals for the District of Columbia Circuit called for decreased executive involvement in the legislative process during a September conference commemorating the 20th anniversary of Justice Elena Kagan’s “Presidential Administration” hosted by George Mason University’s C. Boyden Gray Center for the Study of the Administrative State. Rao, a former administrator of the Office of Information and Regulatory Affairs under President Donald Trump (R), urged presidents to scale back the use of executive agencies to further their political agenda—a phenomenon highlighted by Kagan that gained momentum during the Reagan and Clinton administrations.
“The Constitution vests the legislative power with Congress and I think, there are a lot of important, deep reasons why it did that,” said Rao, arguing that elected representatives, rather than agency staff, are authorized to exercise legislative power.
Rao also weighed in on the nondelegation doctrine—a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. “Non-delegation is a very deep principle of the structure of the Constitution and maybe the most important separation of powers principle we have,” she said.
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Regulatory Tally
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The Federal Register in September reached 54,338 pages.
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The September Federal Register included 167 proposed rules and 286 final rules. These included new rules from the Small Business Administration regarding inflation adjustments for civil monetary penalties and review procedures for decisions related to the Paycheck Protection Program, among other regulations.
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OIRA’s September regulatory review activity included the following actions:
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Review of 38 significant regulatory actions.
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One rule approved without changes; recommended changes to 35 proposed rules; two rules withdrawn from the review process.
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As of October 1, 2021, OIRA’s website listed 89 regulatory actions under review.
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