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 challenges from lawmakers and government officials to federal actions related to electric vehicles, including a Congressional Review Act (CRA) resolution against a Federal Highway Administration rule that was vetoed by President Joe Biden (D); and Trader Joe’s constitutional challenge to the structure of the National Labor Relations Board (NLRB).
At the state level, we take a look at a lawsuit in Pennsylvania challenging state and federal actions related to voter registration; a new Utah sovereignty law; the Wisconsin REINS Act’s effect on an environmental rulemaking; and a federal lawsuit filed by the state of Georgia regarding the state’s Medicaid work requirement.
We also highlight recent commentary from American Enterprise Institute senior fellow Adam White regarding Chevron deference and regulatory uncertainty. We wrap up with our Regulatory Tally, which features information about the 120 proposed rules and 250 final rules added to the Federal Register in January and OIRA’s regulatory review activity.
In Washington
Governors raise concerns over federal EV proposal, Biden vetoes CRA resolution
What’s the story?
Governors and federal lawmakers have argued in recent months against the Biden administration’s efforts to implement directives related to electric vehicles (EVs), including a proposal to increase production of EVs and a rule from the Federal Highway Administration (FHWA) to build EV charging stations throughout the United States.
Sixteen Republican governors sent a letter on January 22, 2024, to President Joe Biden (D) opposing the administration’s goal, outlined in a December 2023 statement, to have at least 50% of new vehicle sales be EVs by 2030. The letter claimed that the directives were unrealistic due to a lack of infrastructure and argued that “the free market [should] determine the direction and timing for the industry’s growth rather than the federal government.”
Two days later, President Biden vetoed a a Congressional Review Act (CRA) resolution filed by Senator Marco Rubio (R-Fla.) in July 2023 aiming to nullify an FHWA rule to build EV charging stations throughout the U.S. The rule, effective March 23, 2023, aims to facilitate EV charger acquisition and installation by establishing a temporary waiver to Buy America requirements for certain materials.
Rubio argued in a statement that waiving the Buy America requirements “hurts American companies and empowers foreign adversaries, like China, to control our energy infrastructure.”
The resolution, which received support along party lines with some Democratic legislators joining the vote, passed the Senate on November 8, 2023, with a vote of 50-48, and passed the House of Representatives on January 11, 2024, with a vote of 209-198.
In his veto message, Biden argued in part that the “resolution would undermine the hundreds of millions of dollars that the private sector has already invested in domestic EV charging manufacturing.” The veto was the ninth veto of a CRA resolution under the Biden administration.
Want to go deeper?
- State responses to federal mandates
- Congressional Review Act
- Uses of the Congressional Review Act during the Biden administration
- U.S. Department of Transportation
Trader Joe’s argues National Labor Relations Board’s structure is unconstitutional
What’s the story?
Trader Joe’s argued during a January 16, 2024, hearing that the National Labor Relations Board’s (NLRB) structure and organization are unconstitutional.
The NLRB filed a complaint in December 2023 accusing Trader Joe’s of illegally retaliating against organizing workers. The NLRB scheduled a hearing with an administrative law judge (ALJ) for January 16, 2024.
Trader Joe’s denied the charges and argued during the administrative hearing that “the structure and organization of the National Labor Relations Board and the agency’s administrative law judges is [sic] unconstitutional,” according to Bloomberg News. The company did not appeal to stop the NLRB’s administrative hearing process but claimed that the constitutionality of the agency’s structure was being raised for future arguments.
Charles Muhl, the ALJ hearing the case, contended that the argument against the constitutionality of the NLRB’s structure could be up to a federal judge to decide following his proceedings, stating, “I’m certainly not going to be ruling on my own constitutionality anytime soon,” according to Fortune.
Trader Joe’s argument follows a lawsuit filed by the company SpaceX on January 4, 2024. SpaceX argued that the NLRB’s administrative proceedings violate the right to a trial by jury and that the agency’s structure violates the separation of powers.
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In the states
Pennsylvania lawmakers challenge state and federal actions related to voter registration
What’s the story?
Republican lawmakers in Pennsylvania filed a lawsuit on January 25, 2024, in the U.S. District Court for the Middle District of Pennsylvania challenging three federal and state actions related to voter registration.
The lawsuit challenges the legality of a 2021 executive order issued by President Joe Biden (D) that directed federal agencies to consider avenues for expanding voting access and information, arguing that the Pennsylvania Constitution “places the duty of ‘regulating the registration of electors’ on the General Assembly,” and not on the president.
The lawmakers also argued that two state actions—Governor Josh Shapiro’s (D) 2023 implementation of automatic voter registration and then-Governor Tom Wolf’s (D) 2018 guidance that directed counties to accept voter registration applications regardless of a non-match between identification numbers included on the application and included in a government database—should have required, but were not subject to, legislative approval. The plaintiffs argued that the actions “violated the legislators’ rights by unconstitutionally excluding Plaintiffs from the law-making process regulating federal elections for President and Congress.”
The Shapiro administration released a statement in response to the lawsuit arguing that the state had the authority to enact the actions and that they were consistent with the law, according to AP News.
Want to go deeper?
- Pennsylvania General Assembly
- United States District Court for the Middle District of Pennsylvania
- Josh Shapiro
- Guidance
Utah governor signs sovereignty bill into law
What’s the story?
Utah Governor Spencer Cox (R) signed the Utah Constitutional Sovereignty Act into law on January 31, 2024, aimed at authorizing the state to not enforce regulations that the state legislature considers to be an overreach of federal power. The bill aims to protect the state’s sovereignty, which refers to the legal authority and responsibility of a state to govern and regulate its political affairs.
State Senator Scott Sandall (R) introduced the bill aiming to create “a framework for the Legislature, by concurrent resolution, to prohibit the enforcement of a federal directive within the state by government officers if the Legislature determines the federal directive violates the principles of state sovereignty,” according to the bill. The bill prevents government officials from following federal regulations that the state legislature views as a violation of sovereignty if a concurrent resolution is passed by a two-thirds majority.
Cox wrote in a statement following the enactment of the bill, “Balancing power between state and federal sovereignty is an essential part of our constitutional system. This legislation gives us another way to push back on federal overreach and maintain that balance.”
State Representative Brian King (D), who voted against the bill, argued that the bill “pretty clearly simply says we the states have more capacity and power and authority than in fact the U.S. Constitution gives to us,” according to Deseret News.
The bill, which took effect immediately, passed along party lines with one Democratic state senator joining the vote.
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Wisconsin REINS Act halts environmental rulemaking
What’s the story?
Wisconsin Governor Tony Evers (D) urged Republican legislators during his 2024 State of the State address on January 23, 2024, to authorize the Wisconsin Department of Natural Resources (DNR) to continue its rulemaking process to establish certain groundwater contamination standards, pursuant to the state legislature’s authority under the Wisconsin Regulations from the Executive in Need of Scrutiny (REINS) Act.
The Wisconsin REINS Act, or 2017 Wisconsin Act 57, is a state law signed in 2017 by former Governor Scott Walker (R) that requires state legislative authorization of administrative rules that carry compliance and implementation costs of $10 million or more over a two-year period. The law was modeled on a proposed federal law with the same name.
The DNR finalized an economic impact analysis in December 2023 for a proposed rule to establish standards for per- and poly-fluoroalkyl substances (PFAS) contamination in groundwater and concluded that the cost to implement the standards would exceed $10 million over a two-year period. The Wisconsin REINS Act prohibits the DNR from proceeding with the rulemaking process until the state legislature authorizes the department to continue.
Evers also sent a letter to State Senators Robert Cowles (R) and Eric Wimberger (R) in December 2023 urging the state legislature to pass legislation allowing the DNR to continue the rulemaking process. The state legislature had not provided authorization to the DNR as of February 12, 2024.
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Georgia sues Biden administration over rejection of Medicaid program extension
What’s the story?
The state of Georgia filed a federal lawsuit on February 2, 2024, in the United States District Court for the Southern District of Georgia against the Centers for Medicare and Medicaid Services (CMS) and the Department of Health and Human Services (HHS) to obtain an extension on the state’s Medicaid program—currently the only state in the country with a Medicaid work requirement.
Georgia Pathways to Coverage, an experimental Medicaid expansion program, was first approved by the Trump administration and requires certain adult, able-bodied enrollees to participate in 80 hours per month of work, education, job training, or community service. CMS under the Biden administration later rescinded approval of the program due to the work requirement but a federal court in 2022 ruled in Georgia’s favor on appeal.
Georgia Pathways launched in July 2023 and is set to expire in September 2025. Citing the legal delays, Georgia requested a three-year program extension, which CMS rejected twice in 2023.
Daniel Tsai, the deputy administrator and director of CMS, denied the delays as justification for an extension, writing that “many states experience delayed implementation of their [Medicaid programs] for various reasons.”
Georgia Governor Brian Kemp (R) said in a statement regarding the lawsuit, “We beat them in court then, and now we are again asking for the federal government to adhere to the terms they agreed to rather than play politics by refusing to give us back the time they stole from delaying the Pathways rollout and implementation.”
Want to go deeper?
- Medicaid work requirements
- United States District Court for the Southern District of Georgia
- Brian Kemp
Regulatory uncertainty and steady administration
In a recent post for the Yale Journal on Regulation’s Notice and Comment blog, senior fellow at the American Enterprise Institute Adam White commented on the future of Chevron deference following oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce and how the U.S. Supreme Court’s decision in the case could affect regulatory uncertainty:
Reformers can’t simply wave the vagueness problem away. But, again, the founders knew the answer, and it lies in good administration. Congress should legislate as clearly as possibly, but when vagueness remains, the task of administration is to promote steadiness, not unsteadiness. Good administration will ‘liquidate’ vague laws (in Madison’s and Hamilton’s word) into a clear rule of law. And the courts complete the process by eventually settling the meaning of vague laws, according to their original meaning but, when in doubt, with an eye to the experience gleaned by good administration. The courts must do their own constitutional job, and in a way that best helps the other branches to do their own constitutional jobs. There may be room for some judicial deference to agencies as they work out the precise meaning of a vague law, at least when the law is new, but eventually the courts must settle the question. A law’s meaning cannot remain perpetually unsettled.
Want to go deeper?
- Click here to read the full text of “Chevron Deference v. Steady Administration” by Adam White
Regulatory tally
Federal Register
- The Federal Register in January reached 6,400 pages.
- The January Federal Register included 120 proposed rules and 250 final rules. These included energy conservation standards for refrigerators, refrigerator-freezers, and freezers and regulations to determine employee or independent contractor classification under the Fair Labor Standards Act.
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
OIRA’s January regulatory review activity included the following actions:
- Review of 45 significant regulatory actions.
- Three rules approved without changes; recommended changes to 38 proposed rules; four rules subject to a statutory or judicial deadline.
- As of February 1, 2024, OIRA’s website listed 157 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
