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The Checks and Balances Letter: March 2019

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The Checks and Balances Letter delivers news and information from Ballotpedia’sAdministrative 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 edition, we look at the vacancy of all seats on the Merit Systems Protection Board; review the Solicitor General’s arguments in favor of narrowing Auer deference; and examine the Supreme Court’s first Second Amendment case in 10 years. We also feature a retrospective on President Trump’s Executive Order 13771 after two years in effect.

At the state level, we note the Michigan Legislature’s rejection of an executive order for the first time in 40 years and California’s loss of federal transportation funding. As always, we wrap up with our Regulatory Tally, which features information about the 186 proposed rules and 259 final rules added to theFederal Register in February and OIRA’s regulatory review activity.

The Checks and Balances Letter

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In Washington

Leadership vacuum on Merit Systems Protection Board

What's the story? The Merit Systems Protection Board (MSPB), the “guardian” of the federal civil service system, is without any members following the departure of Mark Robbins, whose term expired on March 1. It is the first time in the 40-year history of the board that all three seats have been vacant.
The MSPB is a quasi-judicial agency authorized to hear appeals of decisions reached by administrative law judges in disputes between federal employees and managers. Board staff conduct studies on the civil service system.
Under the MSPB contingency plan, General Counsel Tristan Leavitt assumes leadership for the executive and administrative responsibilities vested in the board chairman. However, the lack of a board quorum prevents any final decisions on pending cases. The lack of a quorum since January 2017 has created a backlog of nearly 2,000 cases.
Two of President Trump’s board nominees, Republican Dennis Kirk and Democrat Julia Akins Clark, are awaiting a confirmation vote in the Senate. Sen. Ron Johnson (R-Wis.), chair of the Homeland Security and Governmental Affairs Committee, said Senate leadership will schedule a vote after a third nominee clears his committee (to ensure that the board maintains a Republican majority).
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DOJ seeks to narrow Auer deference

What's the story? The U.S. Department of Justice (DOJ) will argue, in an upcoming Supreme Court case, in favor of narrowing the application of Auer deference.
The term Auer deference refers to the practice in federal courts of yielding to an agency’s interpretation of an ambiguous regulation unless that interpretation is inconsistent with the rule.
The DOJ is defending the federal agency’s action at the heart of the case Kisor v. Wilkie, which is slated for oral argument on March 27. However, the solicitor general’s brief in the case cites a variety of “substantial concerns” with Auer deference and argues for “significant limits on its application.”
The DOJ brief asserts, in part, that the doctrine “is not well grounded historically; [the U.S. Supreme Court] has not articulated a consistent rationale for it; and it is … difficult to justify on the basis of implicit congressional intent.” The brief also states that a reviewing court should defer to the agency's interpretation “only if the interpretation was issued with fair notice to regulated parties; is not inconsistent with the agency's prior views; rests on the agency's expertise; and represents the agency's considered view, as distinct from the views of mere field officials or other low-level employees.”
Critics of deference argue that the practice gives agencies the power to interpret statutes, which is the constitutional responsibility of the courts.
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Second Amendment makes a SCOTUS comeback

What's the story? The United States Supreme Court agreed on January 22 to review the constitutionality of New York City’s ban on transporting licensed, unloaded, and locked handguns outside of city limits.
InNew York State Rifle & Pistol Association Inc. v. City of New York, New York, a group of gun owners challenged the prohibition as a violation of the Second Amendment and the Commerce Clause. Oral argument is slated for April.
In effect, the city ordinance prevents lawful gun owners from transporting their handguns to a second home, a shooting range, or competitions outside of the city.
The United States Court of Appeals for the Second Circuit upheld the city’s ban 3-0, opining that individuals could obtain an additional handgun for a second home and that the seven shooting ranges within the city limits offered sufficient opportunities for practice. The ruling also cited an affidavit from the former commander of the city's License Division stating that gun owners are just as susceptible as non-gun owners to stressful situations in which a firearm could compromise public safety.
The Supreme Court ruled in the 2008 caseDistrict of Columbia v. Heller that the Second Amendment protects an individual’s right to have a handgun in their home for self-defense. In the 2010 caseMcDonald v. City of Chicago, the court held that right as binding on state and local governments.
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In the States

Michigan legislators reject EO for first time in 42 years

What's the story? Republicans in the Michigan Legislature voted on Feb. 14 to reject an executive order issued by Democratic Gov. Gretchen Whitmer to restructure the Department of Environmental Quality. It was the Legislature’s first EO rejection in 42 years, when Democratic legislators rejected an executive order from Republican Governor William Milliken.
Opposition to the EO stemmed, in part, from the EO provisions to eliminate three environmental oversight commissions established by the Legislature last year.
Whitmer claimed that the commissions are dominated by industry and slow the regulatory process.
Following the vote, Gov. Whitmer revised the executive order to only eliminate the Environmental Science Advisory Board. Republican leaders stated that they would not challenge the new version of the executive order, which takes effect on April 22.
The Michigan Constitution grants the state legislature the right to review and vote to reject an executive order, allowing the state’s legislative branch to check the authority of the executive branch.
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Feds come knocking for return of California high-speed rail grants

What's the story? The U.S. Department of Transportation (DOT) has notified California that it is canceling $929 million in grants intended for construction of the high-speed rail system between Los Angeles and San Francisco. DOT officials also announced that they are “actively exploring every legal option” to recoup $2.5 billion that was previously granted to the project for allegedly violating terms of funding. Gov. Gavin Newsom (D) canceled the project last month as a result of cost overruns and delays.
Brian Kelly, chief executive of the California rail authority, has disputed the DOT’s actions and called on the department to “restore the functional relationship between our agencies.”
There is no appeals process for the DOT actions.
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Retrospective: two years of E.O. 13771

President Trump issued Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs on January 30, 2017. The order instituted regulatory budgeting for federal departments and agencies, and directed the Office of Management and Budget (OMB) to determine annual regulatory cost allowances. The EO also requires agencies to eliminate at least two existing regulations for each new regulation issued.

During fiscal year 2017, agencies took 67 deregulatory actions, which saved a projected $8.1 billion in regulatory costs ($570.4 million per year).
During fiscal year 2018, the administration reported $23 billion in savings from 176 deregulatory actions.
The administration has identified a reduction of $18 billion in regulatory costs for fiscal year 2019.
In its first six months, the Trump administration issued 65% fewer economically significant rules than during the same time span of the Obama administration, and 51% fewer than the Bush administration.
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In a teleforum call with the Federalist Society, Jeffrey Harris, former associate Office of Information and Regulatory Affairs (OIRA) administrator during the implementation of Executive Order 13771, made the following remarks on the impact of E.O. 13771:

“So my first big takeaway about 13771 -- I think just simply putting the brakes on this constant one-way flow of regulation has been a really almost sort of venerational accomplishment, and I think there are definitely some folks who have taken issue or have had thoughts on both sides of just how much deregulation has been happening, but I think that sort of glosses over what is a really substantial achievement in its own right, which is just, again, putting the brakes on the new regulation.

And the second reaction I have to some of these other observations about 13771 is that a lot of the biggest ticket items—so I've already mentioned some, the Clean Power Plan at EPA, the Waters of the United States rule, the CAFE, fuel economy standards, the overtime rule—a lot of these biggest ticket items are still in progress just because the nature of the rules, I think, means -- of course, the agency has to do its research, has to issue a notice of proposed rulemaking, has to take and respond to comments, has to finalize the rule, then, of course, they're inevitably challenged in court. And so a lot of these really big ticket items are still in the pipeline and will hopefully be finished in the next year, or certainly hopefully two.

And so something like the CAFE, the fuel economy standards, that's actually a regulation that, even by the standards of the economy, that's hundreds of billions of dollars of compliance costs, depending on the scope of that rule, and about whether the auto industry will have to keep making investments in -- taking efforts to comply with all of these various federal mandates or focus more on selling cars that consumers are demanding. So I think to the extent some have taken issue with some of the numbers or the extent of deregulation, I think there's a really good start, but some of the things that are going to be the most consequential are still in the pipeline.”[1]

”

Click here to read the full teleconference transcript.


Regulatory Tally

Federal Register

  • TheFederal Register in February reached 6,952 pages. The number of pages at the end of each February during the Obama administration (2009-2016) averaged 11,074 pages.
  • TheFederal Register included 186 proposed rules and 259 final rules during February 2019. The regulations included an inflation adjustment for civil penalties issued by the National Endowment for the Arts, nicotine disposal requirements under the Environmental Protection Agency’s hazardous waste standards, and required markings for unmanned aircraft, among others.
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Office of Information and Regulatory Affairs (OIRA)

OIRA’s February regulatory review activity includes:
  • Review of 23 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 40 significant regulatory actions each February.
  • Recommending changes to 21 proposed rules, and withdrawal of two others.
  • As of March 4, 2019, the OIRA website listed 101 regulatory actions under review.
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Footnotes

  1. ↑Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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