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 oral argument before the U.S. Supreme Court in a challenge to Chevron deference; a challenge to the Food and Drug Administration’s (FDA) actions regarding medication abortions; state challenges to the Biden administration’s 2022 guidance on emergency abortions; SpaceX’s constitutional challenge to the structure and adjudication proceedings of the National Labor Relations Board (NLRB); and passage of the Ensuring Accountability in Agency Rulemaking Act in the U.S. House of Representatives.
At the state level, we take a look at three bills passed by the Florida Senate aimed at reducing K-12 public education regulations; and a Missouri lawmaker’s proposal to abolish the state’s education department.
We also highlight recent commentary from regulatory analyst Clyde Wayne Crews Jr. on the 2023 page totals in the Federal Register. We wrap up with our year-end Regulatory Tally, which features information about the 2,102 proposed rules and 3,018 final rules added to the Federal Register in 2023 and OIRA’s regulatory review activity.
In Washington
SCOTUS hears oral argument in challenge to Chevron deference
What’s the story?
The United States Supreme Court on January 17, 2024, heard oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce—consolidated cases challenging an agency’s interpretation of a federal fishery law that could affect future applications of Chevron deference by the federal courts.
A coalition of commercial fishermen in Loper Bright appealed an August 2022 ruling from a divided panel of the United States Court of Appeals for the District of Columbia Circuit that applied Chevron deference to uphold the National Marine Fisheries Service’s (NMFS) interpretation of a federal fishery law allowing the use of compliance monitors on certain fishing boats. While the federal law is silent on who must pay for the use of such monitors, the judges deferred to the NMFS’ interpretation of the statute requiring fishermen to pay costs for the use of compliance monitors.
The fishermen appealed the ruling to the U.S. Supreme Court, arguing that the D.C. Circuit’s decision “perceives ambiguity in statutory silence, where the logical explanation for the statutory silence is that Congress did not intend to grant the agency such a dangerous and uncabined authority.” The court in May 2023 agreed to hear Loper Bright and later consolidated the case with Relentless.
SCOTUSblog analyst Amy Howe wrote that the court was divided at oral argument, but a majority seemed prepared to overturn or limit Chevron deference. Justice Brett Kavanaugh argued that the doctrine “ushers in shocks to the system every four or eight years when a new administration comes in, whether it’s communications law or securities law or competition law or environmental law.” Justice Ketanji Brown Jackson, however, contended that Chevron is important because it does “the very important work of helping courts stay away from policymaking.” The justices also, according to Howe, “debated what the impact of a decision overruling Chevron would be.”
The case is expected to be decided in 2024.
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SCOTUS agrees to hear abortion pill case
What’s the story?
The United States Supreme Court on December 13, 2023, agreed to hear Food and Drug Administration v. Alliance for Hippocratic Medicine—a case challenging the Food and Drug Administration’s (FDA) approved use conditions of mifepristone, a drug used in medication abortions.
The FDA approved the drug mifepristone in 2000 to be used in medication abortions. A group of doctors and medical groups in 2022 challenged the approval, arguing in part that the drug was unsafe.
The U.S. Court of Appeals for the Fifth Circuit ruled in August 2023 that the group could not challenge the 2000 approval of mifepristone, however, the court found that the agency’s 2016 amendments and 2021 non-enforcement decision were arbitrary and capricious under the Administrative Procedure Act. By changing certain conditions of the drug’s use, such as allowing it to be used later in pregnancy and removing the in-person prescription requirement, the court ruled that the agency’s actions “failed to address several important concerns about whether the drug would be safe for the women who use it.”
The Biden administration appealed the decision to the Supreme Court, arguing that the Fifth Circuit’s ruling was “the first time any court has restricted access to an FDA-restricted drug based on disagreement with FDA’s expert judgment about the conditions required to assure that drug’s safe use—much less done so after those conditions had been in effect for years,” according to SCOTUSblog.
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Federal courts take up state challenges to emergency abortion guidance
SCOTUS on January 5, 2024, also agreed to hear Idaho v. United States (consolidated with Moyle v. United States) and granted a temporary hold on a district court ruling that required emergency rooms in Idaho to provide abortions in emergency situations.
The case concerns guidance issued by the Biden administration in 2022 following the decision in Dobbs v. Jackson Women’s Health Organization stating that hospitals receiving Medicare funding must provide necessary stabilizing treatment to pregnant women in emergencies under the Emergency Medical Treatment and Labor Act (EMTALA) which, in the Biden administration’s view, includes emergency abortions. Idaho officials argue in part that the EMTALA conflicts with Idaho’s Defense of Life Act, which bans abortions in the state.
SCOTUS’ agreement to hear the case comes on the heels of a January 2, 2024, decision from a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in a similar challenge from Texas. Judge Kurt Engelhardt wrote in the opinion that “the Guidance goes beyond EMTALA by mandating abortion” and therefore should have been subject to notice and comment. Engelhardt argued that the federal law does not mandate emergency abortions and “[declined] to expand the scope of EMTALA.”
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SpaceX raises constitutional challenges to National Labor Relations Board
What’s the story?
SpaceX—a spacecraft manufacturing company—filed a lawsuit on January 4, 2024, in the United States District Court for the Southern District of Texas arguing that the National Labor Relations Board’s (NLRB) administrative proceedings violate the right to a trial by jury and that the agency’s structure violates the separation of powers.
The NLRB filed a complaint on January 3, 2024, “alleging SpaceX illegally fired a group of employees for drafting an open letter that criticized [CEO Elon] Musk’s behavior,” according to The Verge. The NLRB scheduled a hearing with an administrative law judge (ALJ) for March 5, 2024.
SpaceX responded with a lawsuit seeking to enjoin the NLRB proceedings, arguing that the agency’s in-house adjudication violates the constitutional right to a trial by jury and that the board’s structure violates the separation of powers because “its Members exercise all three constitutional powers—legislative, executive, and judicial—in the same administrative proceedings,” according to the lawsuit.
The NLRB contended that the lawsuit should not have been filed in Texas because the case has no connection to the state and should be transferred closer to SpaceX’s headquarters in Los Angeles, according to Reuters.
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House passes Ensuring Accountability in Agency Rulemaking Act
What’s the story?
The U.S. House of Representatives on December 12, 2023, passed the Ensuring Accountability in Agency Rulemaking Act, which would require certain agency rules to be initiated and issued by Senate-confirmed agency officials.
Congressman Ben Cline (R-Va.) introduced the bill on January 13, 2023, in an effort to support what he referred to as agency accountability in the rulemaking process.
The bill passed the House with a vote of 218-203. Jared Golden (D-Maine), Jared Moskowitz (D-Fla.), and Marie Gluesenkamp Perez (D-Wash.) joined the Republican majority in voting for the bill.
The bill was referred to the Senate Committee on Homeland Security and Governmental Affairs on December 13, 2023.
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In the states
Florida Senate advances bills to reduce state education regulations
What’s the story?
The Florida State Senate passed three bills on January 10, 2024, aimed at reducing state regulations governing K-12 education in public schools.
The bills—SB 7000, SB 7002, and SB 7004—seek to remove or reduce state education regulations and grant greater authority to local districts. The bills address regulations related to teacher certification and training, administrative processes, financial requirements, state assessments, school improvement programs, and instructional materials, among other topics.
Senate President Kathleen Passidomo (R) argued in a press release, “Telling districts what to do and how to do it was supposed to ensure quality and demand accountability, but it can also stifle innovation. … Reducing bureaucratic red tape will give public schools that have served our communities for generations a meaningful chance to compete right alongside other school choice options that are now available to every child, in every family across our state.”
The Foundation for Florida’s Future, a 501(c)(4) nonprofit education policy organization, released a statement expressing concern about the bills, arguing that “many components of the package are long-standing union priorities that move away from transparency, accountability, high standards and choice.”
The bills moved to the Florida House of Representatives for consideration on January 10, 2024.
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Missouri lawmaker proposes abolishing state education department
What’s the story?
Missouri State Senator Bill Eigel (R) introduced legislation on December 1, 2023, aimed at abolishing the Missouri Department of Elementary and Secondary Education. The bill, if passed, would abolish the department and authorize the governor to transfer its powers and responsibilities. The bill would also permit the state’s commissioner of education to remain as the chief administrative officer of the State Board of Education.
Eigel, who is running for governor of Missouri in 2024, argued that the department is “an authoritarian branch over local public school districts and really, after taking a bunch of money from the federal government, is pushing mandates down on those local school districts that I don’t think that they agree with whether it’s requiring them to teach DEI standards, CRT standards, whatever it is,” according to The Springfield News-Leader.
Missouri Secretary of State Jay Ashcroft (R) challenged the constitutionality of the bill, arguing that abolishing the state’s education department would alter the state’s constitution, according to The Kansas City Star.
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Federal Register 2023 page count was the second-highest of all time
The Biden administration’s final 2023 page count in the Federal Register was 90,402 pages—the second-highest annual page count of all time. The highest annual page count to date remains 95,894 pages published in 2016 during the Obama administration.
In a recent post for Forbes, policy analyst Clyde Wayne Crews Jr. commented on the Federal Register’s 2023 page count and how it compares to previous presidential administrations:
Biden posted a big jump over the 79,856 Federal Register pages he scored in 2022. While the number of rules and regulations contained within Biden’s hefty Federal Register set no records, he has spurned regulatory streamlining as a priority (deeming Trump’s efforts ‘harmful’) and instead instructed agencies to pursue ‘net benefits’ via top-down ‘whole-of-government’ initiatives in climate, equity and other economic and social engineering policies. …
In contrast to Barack Obama’s all-time record-setting 95,894 pages and Trump’s own #2 (now #3 thanks to Biden) placement of 86,356 pages in 2020, note that there were ‘only’ 61,308 pages in Trump’s first year of 2017. … that represented the lowest count seen since Bill Clinton’s 61,166 pages in 1993.
Want to go deeper?
- Click here to read the full text of “Biden’s 2023 Federal Register Page Count Is The Second-Highest Ever” by Clyde Wayne Crews Jr.
Regulatory tally: 2023 review
Federal Register
- The Federal Register in 2023 reached 90,402 pages.
- The 2023 Federal Register included 2,102 proposed rules and 3,018 final rules.
- The 2023 Federal Register ranks as the second-highest page count of all time. The highest page count was 95,894 pages in 2016.
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Office of Information and Regulatory Affairs (OIRA): 2023 review
OIRA’s 2023 regulatory review activity included the following actions:
- Review of 575 significant regulatory actions.
- 36 rules approved without changes; recommended changes to 506 proposed rules; 21 rules withdrawn from the review process; 12 rules subject to a statutory or judicial deadline.
- As of January 2, 2024, OIRA’s website listed 147 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
