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 review the Trump administration’s tighter restrictions on U.S. residency for immigrants who have been or are likely to become “public charges” (e.g., recipients of income assistance, or in need of public health, nutrition or housing services); stricter standards from the U.S. Department of Education for forgiveness of federally backed student loans; and the loss of a quorum at the Federal Election Commission. At the state level, we examine a constitutional challenge to Arizona’s process for registering child abusers; a proposal from the Maryland governor to shift responsibilities for compensating wrongly incarcerated individuals from an elected board to state administrative law judges; and a New Hampshire woman’s victory over a humorless bureaucracy.

As always, we wrap up with our Regulatory Tally, which features information about the 196 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.

The Checks and Balances Letter

In Washington

Trump administration restricts admissibility of immigrants needing public assistance

What's the story? The Department of Homeland Security (DHS) on August 12 published afinal rule that details how federal agencies are to determine the inadmissibility of aliens who have been or are likely to become “public charges” (e.g., dependent on public assistance).

The new rule replaces a 1999 guidance document that applied the term “public charge” only to receipt of cash assistance for income maintenance or institutionalization for long-term care at taxpayer expense.

The Immigration and Nationality Act renders inadmissible (i.e., ineligible for admission, a visa or adjustment of status) any alien who is likely at any time to become a “public charge.” However, Congress did not define the term in the statute. The rule is scheduled to take effect on October 15, 2019.

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DeVos tightens standards for student loan forgiveness

What's the story? The U.S. Department of Education on August 30 announced anew final rule to prevent student loan fraud and restrict forgiveness of federally backed loans.

Under the previous rule adopted by the Obama administration, the department forgave about $222 million owed by 20,000 borrowers.

The new rule restricts loan forgiveness to cases of schools knowingly making fraudulent or misleading statements about loans to students. The previous, looser standard allowed loan forgiveness for school statements with a “likelihood or tendency to mislead.”

The new rule also eliminates the discharge of loans in the event a school closed before borrowers completed their degree.

Department officials estimate that the new rule will reduce loan forgiveness by $512 million annually, and save taxpayers $11.1 billion over the next decade.

Critics say the new rule will make it harder for defrauded students to obtain loan forgiveness.

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FEC lacks quorum

What's the story? The Federal Election Commission (FEC) lacks the quorum of members necessary to oversee campaign finance disclosures, perform audits or enforce fundraising violations following the August 31 resignation of Vice Chairman Matthew Petersen (R).

Petersen did not specify a reason for his resignation. His departure left the six-member commission with only three members: Chairwoman Ellen Weintraub (D), Steven Walther (I), and Caroline Hunter (R). Vacancies created by the resignations of commissioners Ann Ravel (D) in February 2017 and Lee Goodman (R) in February 2018 have yet to be filled. President Trump’s 2017 nominee to fill one vacant seat has not been voted upon by the U.S. Senate (as of August 2019).

An August 27th statement by Weintraub said that FEC staff will continue to make campaign finance documents available to the public and issue recommendations regarding campaign finance complaints. However, the commission will be unable to vote on the recommendations until a quorum is re-established.

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In the States

Group challenges constitutionality of administrative review by Arizona state agency

What's the story? The New Civil Liberties Alliance, a public interest law firm focused on the administrative state, is challenging the constitutionality of Arizona’s process for registering child abusers.

The case involves a defendant who was placed on the registry by Director Gregory McKay, of the state’s Department of Child Safety, despite a finding by an administrative law judge (ALJ) that no probable cause existed to do so. Arizona law does permit the DCS director to substitute his own judgment for that of the ALJ.

The New Civil Liberties Alliance is challenging the low standard of proof (probable cause) in the review process; the lack of cross-examination of witnesses; and the unilateral power of the DCS director to reverse an ALJ’s findings.

NCLA aims to stay the DCS decision in order to prevent the defendant from being listed on the child abuser registry until he has received a fair trial.

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Maryland governor proposes shifting responsibilities to ALJs

What's the story? Maryland Governor Larry Hogan (R) on September 4 proposed that state administrative law judges (ALJ), rather than the Board of Public Works, should be tasked with awarding compensation to wrongly incarcerated individuals. Hogan later directed the board counsel on September 18 to work with the state’s chief ALJ to devise a compensation process.

The Board of Public Works is made up of three elected officials: the governor, the state comptroller, and the state treasurer. State law authorizes the board to compensate wrongly incarcerated individuals. However, the board has not done so since the last wrongly incarcerated individual received compensation in 2004.

Hogan argued that state ALJs are more qualified than the members of the Board of Public Works to make compensation determinations because the board lacks the “expertise, capacity [and] personnel” to evaluate damages, pain, and suffering.

Five wrongly incarcerated men have petitioned the board for compensation over the last 19 months. Lawyers have asked the board to award $100,000 to each man for each year he spent behind bars for a total of roughly $12 million.

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Mother of four defeats bureaucrats in Live-Free-Or-Die State

What's the story? New Hampshire resident Wendy Auger refused to bow to the state Division of Motor Vehicles which ordered her to surrender her 15-year-old vanity license plate, PB4WEGO.

Auger received a letter in mid-August informing her that the plate violated a state administrative rule that prohibits phrases related to "sexual or excretory acts or functions."

Auger argued that the phrase was intended to be humorous rather than offensive.

After Auger’s story gained media attention, Governor Chris Sununu (R) “strongly urged” the DMV to back off, and Auger was allowed to keep the license plate.

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Symposium onBending the Rules: Procedural Politicking in the Bureaucracy

TheYale Journal on Regulation hosted a web symposium on Professor Rachel Potter’s new book,Bending the Rules: Procedural Politicking in the Bureaucracy. Participants offered commentary and critiques on the book’s content, including the following from the University of Chicago Press:

“WithBending the Rules, Rachel Augustine Potter shows that rulemaking is not the rote administrative activity it is commonly imagined to be but rather an intensely political activity in its own right. Because rulemaking occurs in a separation of powers system, bureaucrats are not free to implement their preferred policies unimpeded: the president, Congress, and the courts can all get involved in the process, often at the bidding of affected interest groups. However, rather than capitulating to demands, bureaucrats routinely employ “procedural politicking,” using their deep knowledge of the process to strategically insulate their proposals from political scrutiny and interference. Tracing the rulemaking process from when an agency first begins working on a rule to when it completes that regulatory action, Potter shows how bureaucrats use procedures to resist interference from Congress, the President, and the courts at each stage of the process. This exercise reveals that unelected bureaucrats wield considerable influence over the direction of public policy in the United States.”

The following scholars contributed to the symposium:

• Bridget Dooling (The George Washington University Regulatory Studies Center)
• Bernard Bell (Rutgers, The State University of New Jersey, Law School)
• Jennifer Nou (University of Chicago Law School)
• Christopher Carrigan (The George Washington University, Trachtenberg School of Public Policy & Public Administration)
• Andrew Rudalevige (Bowdoin College, Department of Government and Legal Studies)
• Emily Bremer (University of Notre Dame Law School)
• Chris Walker (The Ohio State University, Moritz College of Law)
• Stuart Shapiro (Rutgers, The State University of New Jersey, Bloustein School of Planning and Public Policy)
• Rachel Potter (University of Virginia, Woodrow Wilson Department of Politics)

Click here to view the symposium archive.

Click here for Potter’s response to the symposium.

Regulatory Tally

Federal Register

• TheFederal Register in August reached 45,872 pages. The number of pages at the end of each August during the Obama administration (2009-2016) averaged 53,208 pages.
• The AugustFederal Register included 196 proposed rules and 290 final rules. These includeda rule from the U.S. Department of Homeland Security denying entry to immigrants deemed potential public charges, arule from the Federal Communications Commission aimed at modernizing the 1990 Children’s Television Act, and arule from the National Park Service designating a new airstrip in Death Valley, among others.

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Office of Information and Regulatory Affairs (OIRA)

OIRA’s August regulatory review activity included:

• Review of 48 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 53 significant regulatory actions each August.
• Recommended changes to all 48 proposed rules.
• As of September 3, 2019, the OIRA website listed 123 regulatory actions under review.

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Footnotes

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