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 United States Supreme Court’s (SCOTUS) reinstatement of a Trump-era water rule; the latest on challenges to the Biden administration’s coronavirus (COVID-19) vaccine requirement for federal employees; a challenge to free-speech limitations in agency settlement agreements; and the Department of Justice’s (DOJ) appeal of a nationwide injunction blocking the Biden administration’s public transport mask requirement.
At the state level, we take a look at a new Tennessee law prohibiting judicial deference practices in the state as well as a case pending before the Ohio Supreme Court that could determine the future of judicial deference in Ohio.
We also highlight the Biden administration’s recent departure from the Trump administration’s position on agency sue and settle practices. As always, we wrap up with our Regulatory Tally, which features information about the 176 proposed rules and 241 final rules added to the Federal Register in April and OIRA’s regulatory review activity.
In Washington
SCOTUS reinstates Trump-era Clean Water Act regulation
What’s the story?
The U.S. Supreme Court on April 6, 2022, voted 5-4 to halt a lower court injunction that had blocked a Trump-era rule regarding certification procedures for certain projects under the Clean Water Act (CWA). The dissenting justices argued that the court’s decision—part of its shadow docket—failed to explain the need to reinstate the rule and grant emergency relief in the case.
The 2020 rule aimed to update the Environmental Protection Agency’s (EPA) 1971 regulations governing state and tribal water quality certifications to align with the 1972 CWA amendments. The rule limited the scope of project certification under Section 401 of the Clean Water Act (CWA) to consideration of the proposed project’s effect on water quality requirements, among other provisions. Prior to the rule, some state and tribal entities had considered other environmental factors as part of their certification decisions.
A coalition of states, tribes, and advocacy groups challenged the rule in three district courts, arguing in part that the rule unlawfully violated established case law regarding the interpretation of the CWA. After the Biden administration took office in 2021, the EPA requested that the district courts remand the cases without vacating the rule while the agency determined whether to repeal or revise the regulation. The United States District Court for the Northern District of California nonetheless remanded and vacated the rule in part “because the agency has demonstrated that it will not or could not adopt the same rule upon remand.”
A separate coalition of states and industry groups appealed the decision to the United States Court of Appeals for the Ninth Circuit and asked the United States Supreme Court to issue a stay blocking the vacatur pending the Ninth Circuit’s decision. “Can a single district court vacate a rule that an agency adopted through notice-and-comment rulemaking without first finding that the rule is unlawful? The answer is plainly ‘no,’” they argued.
The majority Supreme Court justices did not provide an explanation for their decision to issue a stay. A dissent by Justice Elena Kagan, joined by the minority justices, argued, “The applicants here have not met our standard because they have failed to substantiate their assertions of irreparable harm. The Court therefore has no warrant to grant emergency relief.”
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Courts direct challenges to federal employee vaccine mandate through civil service procedures
What’s the story?
A three-judge panel of the United States Court of Appeals for the Fourth Circuit on April 19, 2022, unanimously held in Rydie v. Biden that federal government employees cannot challenge President Joe Biden’s (D) coronavirus (COVID-19) vaccine requirement for federal workers in an Article III court without first bringing their challenge before the Merit Systems Protection Board (MSPB).
Biden issued the vaccine mandate via Executive Order 14043 on September 9, 2021. The plaintiffs in the case argued that Biden lacked the authority to issue the requirement. The Fourth Circuit judges held that the plaintiffs must first direct their challenge through the grievance process outlined in the Civil Service Reform Act, which culminates in a decision by the MSPB. Final decisions by the MSPB can then be challenged in an Article III court.
A three-judge panel of the United States Supreme Court for the Fifth Circuit on April 7 arrived at a similar decision, voting 2-1 to overturn a nationwide injunction issued by U.S. District Judge Jeffrey Brown that had blocked enforcement of the mandate.
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SCOTUS could hear challenge to free-speech limitations in SEC settlements
What’s the story?
The U.S. Supreme Court will soon decide whether to take up a case questioning the constitutionality of the Securities and Exchange Commission’s (SEC) settlement agreements that require defendants to sign away their First Amendment rights.
Since 1972, the SEC has entered into settlement agreements allowing defendants to publicly disavow the agency’s complaint against them while, at the same time, preventing them from making “any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis,” according to the petition before the court in Romeril v. Securities and Exchange Commission.
The case concerns Barry D. Romeril, a former Xerox executive who entered into a settlement with the agency in 2003 and sued in 2019 to reinstate his right to speak about the case. A three-judge panel of the United States Court of Appeals for the Second Circuit unanimously ruled in favor of the SEC, holding that Romeril had given up his First Amendment right to free speech when he agreed to settle with the agency rather than litigate the case in an Article III court. Romeril appealed to the Supreme Court, arguing in part, “No act of Congress authorizes such a sweeping restriction on freedom of speech.”
A decision by the Supreme Court in the case would provide clarity to lower courts, which have reached different conclusions on the issue. In 2019, a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit rejected a similar settlement between a private citizen and the City of Baltimore, holding “that enforcement of the non-disparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.”
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- Securities and Exchange Commission
- United States Court of Appeals for the Second Circuit
- United States Court of Appeals for the Fourth Circuit
Appeal of mask mandate ruling could clarify scope of CDC authority
What’s the story?
The U.S. Department of Justice (DOJ) on April 20, 2022, appealed a decision by Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida that blocked enforcement of the Biden administration’s public transport mask mandate. A decision by the United States Court of Appeals for the Eleventh Circuit could clarify the scope of the CDC’s authority to issue the mask mandate and take similar action in the future.
Judge Mizelle on April 18 issued a nationwide injunction that blocked enforcement of the mask mandate, arguing that the requirement for individuals to wear masks in public transportation hubs and conveyances (such as airports and airplanes) exceeded the Centers for Disease Control and Prevention’s (CDC) statutory authority and violated the rulemaking requirements of the Administrative Procedure Act (APA).
Mizelle wrote in the opinion, “The Mandate’s explanation—a single conclusory sentence—does not carry its burden to ‘show strong enough reason to invoke the good cause exception’” to notice-and-comment rulemaking. Mizelle added that the relevant section of the Public Health Services Act “has no ‘unmistakably clear language’ indicating that Congress intended for the CDC to invade the traditionally State-operated arena of population-wide, preventative public-health regulations.”
White House Press Secretary Jen Psaki disagreed with Mizelle’s position, telling reporters that public health “decisions shouldn’t be made by the courts—they should be made by public health experts.”
Want to go deeper?
- Kathryn Kimball Mizelle
- Federal government responses to the coronavirus (COVID-19) pandemic, 2020-2022
In the states
Tennessee lawmakers end judicial deference practices
What’s the story?
Tennessee Governor Bill Lee (R) on April 14, 2022, signed a bill aimed at ending judicial deference practices in the state. Tennessee joins at least eleven other states that have either limited or prohibited judicial deference to state agency interpretations of laws and regulations since 2008.
Senate Bill 2285 requires courts to interpret state statutes or rules de novo, as opposed to deferring to state agency interpretations of laws or regulations. The law also states, “After applying all customary tools of interpretation, the court shall resolve any remaining ambiguity against increased agency authority.” This resembles the rule of lenity in criminal law, which resolves ambiguities in favor of the defendant.
Ballotpedia has identified eleven other states since 2008 in which voters, courts, or lawmakers have taken action to limit or prohibit judicial deference practices: Arkansas, Arizona, Colorado, Florida, Georgia, Kansas, Michigan, Mississippi, Utah, Wisconsin, and Wyoming.
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Ohio Supreme Court considers future of judicial deference
What’s the story?
A case before the Ohio Supreme Court could determine the future of judicial deference in the state.
In TWISM Enterprises LLC v. State Board of Registration for Professional Engineers and Surveyors, the Hamilton County Court of Appeals deferred to the Ohio Board of Registration for Professional Engineers and Surveyors’ interpretation of its engineering certification rules, which denied TWISM Enterprises’ application to provide professional engineering services because the company’s designated licensed engineer was an independent contractor rather than an employee. TWISM Enterprises appealed the decision to the Ohio Supreme Court, arguing that the agency’s interpretation of the governing statute was flawed because the law does not specify that the licensed engineer must be an employee of the business.
The Ohio Supreme Court had yet to set a date for argument in the case as of May 13, 2022.
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The return of sue and settle practices at the EPA
The Environmental Protection Agency Administrator Michael Regan issued a memorandum in March revoking former EPA Administrator Scott Pruitt’s 2017 directive that ended sue and settle practices at the agency. Pruitt had argued that sue and settle (when a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process) amounted to regulation by litigation behind closed doors.
Regan departed from Pruitt’s position in the memorandum, arguing in part that sue and settle practices serve to preserve agency resources by avoiding expensive litigation:
“In enacting environmental laws, Congress included tools to ensure that the EPA carries out its vital mission to protect human health and the environment for all. In environmental statutes, and in tandem with the Administrative Procedure Act, Congress commonly has adopted provisions authorizing judicial action against the EPA, such as citizen suits to enforce deadlines and judicial review processes related to final agency action. At the same time, parties, including federal agencies. frequently enter into settlements to avoid expensive and resource-intensive litigation, where appropriate. Settlements can preserve resources of the parties and the courts; in many instances they can be the most practical, economical and efficient path forward while also serving the public interest. Appropriate settlement of environmental claims against the EPA preserves agency resources to focus on the vital work the agency carries out under the environmental statutes. …
[Pruitt’s] directive gave little weight to the well-understood value of settlements in appropriate cases.”
Want to go deeper?
- Click here to read more about sue and settle.
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Regulatory tally
Federal Register
- The Federal Register in April reached 25,568 pages.
- The April Federal Register included 176 proposed rules and 241 final rules. These included revisions to the Federal Pipeline Safety Regulations and new requirements for the origin of dairy animals under the U.S. Department of Agriculture’s (USDA) organic regulations, among other regulations.
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Office of Information and Regulatory Affairs (OIRA)
OIRA’s April regulatory review activity included the following actions:
- Review of 38 significant regulatory actions.
- No rules approved without changes; recommended changes to 36 proposed rules; two rules withdrawn from the review process.
- As of May 2, 2022, OIRA’s website listed 110 regulatory actions under review.
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Want to go deeper?
- Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules
