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 a legislative proposal aiming to prohibit federal funding of a Bureau of Land Management rule; legislative and industry pushback against the acting labor secretary’s continued tenure without Senate confirmation; and recent guidance to federal agencies on promoting public engagement in the regulatory process.
At the state level, we take a look at Medicaid work requirements in Ohio and Georgia as well as the creation of a new education department in Michigan.
We also highlight legal commentary discussing the definition of context and its relationship to the major questions doctrine. We wrap up with our Regulatory Tally, which features information about the 187 proposed rules and 249 final rules added to the Federal Register in July and OIRA’s regulatory review activity.
In Washington
House committee votes to prohibit federal funding of BLM rule
What’s the story?
The Interior, Environment, and Related Agencies Subcommittee of the U.S. House Committee on Appropriations on July 19, 2023, adopted an amendment put forth by Representative Dan Newhouse (R-Wash.) aimed at prohibiting federal funding of a proposed rule from the Bureau of Land Management (BLM) that, according to Newhouse, exceeds the agency’s statutory authority under the Federal Land Policy and Management Act (FLPMA).
The Conservation and Landscape Health rule would designate protective and restorative conservation activities as types of land use within FLPMA’s multiple-use framework, among other provisions. The FLPMA’s multiple-use framework allows for recreation, grazing, mining, oil and gas development, and other land use activities aimed at generating sustained yields of natural resource outputs on BLM land. The proposed rule seeks to position “conservation on an equal footing with other uses, consistent with the plain language of FLPMA,” according to the text.
Newhouse argued in remarks before the committee that the proposed rule exceeds the BLM’s statutory authority because the FLPMA’s multiple-use framework, which aims to produce sustainable yields, does not include conservation activities. Newhouse further argued in a press release that the proposed rule “would hinder access to public lands for energy and critical mineral development, grazing, forest management, and recreation.”
The committee adopted the amendment to the appropriations bill for the U.S. Department of the Interior and related agencies by a voice vote.
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Acting labor secretary faces congressional, industry pushback
What’s the story?
Republican lawmakers and business groups in July expressed opposition to Deputy Secretary of Labor Julie Su’s continued tenure as acting secretary without Senate confirmation.
President Joe Biden (D) on February 28, 2023, nominated Julie Su, a former California labor commissioner, to succeed Marty Walsh as secretary of the U.S. Department of Labor (DOL). The U.S. Senate as of August 2023 had not voted to confirm Su as labor secretary—an indication that Su lacks the votes for confirmation, according to Politico. The Biden administration has nonetheless argued that a Labor Department rule allows Su to continue serving as acting secretary without Senate confirmation.
In response, Representatives Kevin Kiley (R-Calif.) and Virginia Foxx (R-N.C.) introduced the Department of Labor Succession Act on July 27, 2023, which seeks to align the labor secretary position with the Senate confirmation process under the Federal Vacancies Reform Act of 1998 and “prevent Su from indefinitely serving in defiance of Congress,” according to Rep. Kiley.
Business groups, moreover, have called on the Biden administration to delay finalizing the DOL’s proposed worker classification rule until a permanent secretary of labor is confirmed. The trade association Flex argued in a July 24 letter to President Biden that “any action taken to finalize the proposed worker classification regulation under Ms. Su’s current leadership as Acting Secretary would circumvent the Senate’s constitutional role of providing advice and consent on nominees.”
Democratic senators have continued to advocate for Su’s confirmation as of August 14. Senator Chuck Schumer (D-N.Y.) told reporters on July 20 that they are “trying to do everything we can to get her passed, plain and simple.”
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OIRA guidance aims to promote public engagement in rulemaking
What’s the story?
The Office of Information and Regulatory Affairs (OIRA) on July 19, 2023, issued guidance “detailing new steps that Federal agencies should take to make it easier for interested members of the public to voice their views in the regulatory process,” according to a White House press release.
The guidance seeks to implement provisions of President Joe Biden’s (D) Executive Order 14094, which aimed in part “to promote equitable and meaningful [public] participation” in the rulemaking process, according to the text.
The guidance suggests two overarching actions for agencies aimed at advancing public engagement. First, the guidance encourages agencies to leverage the biannual Unified Regulatory Agenda as a means to convey public engagement efforts. Second, the guidance urges agencies to ensure “that agency policies on communication during the rulemaking process promote accessible, equitable, and meaningful participation and engagement, especially … in the early stages of rule development,” and further suggests that agencies consider implementing what OIRA describes as leading practices for participation and engagement.
“Hearing from those who are directly affected by a regulation or care about a specific issue helps ensure that we’re addressing the most pressing concerns of communities throughout the country,” said Sam Berger, OIRA associate administrator, in a statement.
Want to go deeper?
- Guidance
- Executive Order 14094
- Unified Agenda of Federal Regulatory and Deregulatory Actions
- Office of Information and Regulatory Affairs
In the states
Georgia implements Medicaid work requirements, Ohio seeks waiver
What’s the story?
Georgia and Ohio are the most recent states to take action concerning Medicaid work requirements. Georgia became the only state to have Medicaid work requirements in place when the Georgia Pathways program took effect on July 1, 2023. Ohio Governor Mike DeWine (R) later signed a two-year state budget on July 4, 2023, that seeks to implement work requirements for Medicaid recipients.
Georgia lawmakers in 2019 created Georgia Pathways through the passage of Senate Bill 106. The program aims to expand Medicaid coverage to qualifying adults with households below the poverty level who work at least 80 hours per week. The Centers for Medicare and Medicaid Services (CMS) approved Georgia’s plan under the Trump administration but later rescinded the plan under the Biden administration—resulting in a legal challenge that culminated in favor of Georgia.
The Ohio state budget requires the director of the Ohio Department of Medicaid to apply for a Section 1115 waiver from the Centers for Medicare and Medicaid Services (CMS) in February 2025. The waiver, if approved by CMS, would allow the state to establish Medicaid work requirements for able-bodied residents ages 55 and younger. Able-bodied adults without dependents under the policy would be required to work or study 20 hours per week to qualify for Medicaid benefits.
Want to go deeper?
- Mike DeWine
- Centers for Medicare and Medicaid Services
- Areas of inquiry and disagreement related to work requirements for public assistance programs
Michigan governor announces new state education department
What’s the story?
Michigan Governor Gretchen Whitmer (D) issued an executive order on July 11, 2023, to establish the Michigan Department of Lifelong Education, Advancement, and Potential (MiLEAP). The department aims to develop an education system from preschool through postsecondary education in an effort to support students and the economy, according to the order.
MiLEAP is set to partner with the state Department of Education and Board of Education and will consist of the following new offices: Office of Early Childhood Education, Office of Higher Education, and Office of Education Partnerships. The department will be led by a director appointed by the governor.
Governor Whitmer argued that MiLEAP is necessary “because we need to get every kid started early, in pre-K, so they succeed in kindergarten, have paths after graduation to get higher education tuition-free, and forge strong partnerships with our employers so they can get a good-paying, high-skill, and in-demand job.”
The Michigan State Board of Education on August 8, 2023, requested the attorney general to provide what the board referred to as constitutional clarity on the creation of the department. The board wrote in a press release that they are seeking an “opinion on how the board’s constitutionally secured authority over all public education in Michigan may be affected by an executive order to create MiLEAP.”
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Context and the major questions doctrine
In recent commentary for the Yale Journal on Regulation’s Notice and Comment blog, administrative law scholar Adrian Vermeule argued that Justice Amy Coney Barrett’s approach to the major questions doctrine put forth in her Biden v. Nebraska concurrence does not offer clear guidance on the meaning of context:
In Biden v. Nebraska, the decision in which the Court invalidated the Biden administration’s student loan forgiveness program, Justice Barrett wrote a theoretically ambitious concurrence, joined however by no other Justice. The aim of the concurrence was to put the so-called major questions doctrine on a more secure basis by justifying it as a natural inference from “common sense” and “context,” rather than as a substantive canon of interpretation. Whatever the merits of the major questions doctrine, my point here is a theoretical and analytical one about the structure of the distinctions that Justice Barrett attempts to erect. I do not think that structure can stand; indeed I think her own examples show it to be divided against itself. Justice Barrett’s account of “context” is so broad as to easily encompass the substantive principles and maxims that she sees as problematic for the textualist judge, thereby collapsing into an approach that Barrett sees as non-textualist, contrary to her commitments. Yet any narrower account of context would be untenable. The upshot is that the appeal to context merely displaces and postpones, rather than resolving, the question which background principles of the legal order the judge may properly take on board.
Want to go deeper?
- Click here to read the full text of “Text and ‘Context’” by Adrian Vermeule
Regulatory tally
Federal Register
- The Federal Register in July reached 49,992 pages.
- The July Federal Register included 187 proposed rules and 249 final rules. These included amendments to occupational injury and illness recordkeeping requirements and test procedures for dehumidifiers, among other regulations.
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
OIRA’s July regulatory review activity included the following actions:
- Review of 55 significant regulatory actions.
- Three rules approved without changes; recommended changes to 50 proposed rules; two rules withdrawn from the review process.
- As of August 1, 2023, OIRA’s website listed 120 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
