Our weekly summary of federal news highlights the FDA’s authorization of new at-home COVID-19 testing and the beginning of SCOTUS’ October sitting. Read all about it in this week’s edition of the Federal Tap.

Congress is in session

The House is in session next week. Click here to see the full calendar for the first session of the 117th Congress.

SCOTUS is in session

The Supreme Court will hear four hours of oral arguments next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

On Monday, Biden departed Wilmington, Delaware, for Washington, D.C. 

On Tuesday, Biden delivered remarks on the infrastructure bill and the Build Back Better agenda at the International Union of Operating Engineers Local 324 in Howell, Michigan. 

On Wednesday, Biden remained in Washington, D.C. 

On Thursday, Biden delivered remarks on COVID-19 vaccine requirements at a Clayco construction site in Elk Grove Technology Park, Illinois.  

On Friday, Biden departed Washington, D.C., for Wilmington, Delaware. 

Federal Judiciary

• 86 federal judicial vacancies
• 33 pending nominations
• 31 future federal judicial vacancies

Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there are 30 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Dec. 1, 2020, when U.S. District Court for the Western District of Arkansas Judge Paul K. Holmes announced that he would assume senior status on Nov. 10, 2021. The most recent was on Sept. 30, 2021, when U.S. Court of Appeals for the 4th Circuit Judge Henry Floyd announced that he would assume senior status on Dec. 31, 2021. Thirteen vacancy effective dates have not been determined because the judges have not announced the date they will leave the bench. The next upcoming vacancy will occur on Nov. 1, 2021, when U.S. District Court for the Eastern District of Virginia Judge John A. Gibney, Jr. assumes senior status. As of Oct. 7, 2021, there were 31 total upcoming vacancies announced for the federal judiciary overall.

For historical comparison, during this week last year, Oct. 4-Oct. 10, 2020, there were 64 federal judicial vacancies and four upcoming vacancies in the federal judiciary reported by the U.S. Courts.

SCOTUS begins October sitting

The Supreme Court of the United States (SCOTUS) began its first argument sitting of the 2021-2022 term on Oct. 4. The court heard arguments in person for the first time since March 2020. Justice Brett Kavanaugh participated remotely due to testing positive for coronavirus on Sept. 30.

The court heard arguments in five cases for a total of five hours of oral argument: 

Oct. 4

• Mississippi v. Tennessee concerns a dispute between Mississippi and Tennessee involving an aquifer’s groundwater. The case comes under the court’s original jurisdiction as it is a dispute among states, meaning SCOTUS is the first court to hear the case.
• Wooden v. United States concerns the Fourth Amendment to the U.S. Constitution and how predicate offenses are considered and classified under the Armed Career Criminal Act (ACCA). A predicate offense is a crime that may be considered a component of a larger crime.

Oct. 5

• Brown v. Davenport concerns a circuit split over the standard necessary to grant federal habeas relief to a person held in state custody. A writ of habeas corpus is used in federal courts to determine if an individual’s imprisonment is lawful. A circuit split occurs when two or more U.S. circuit courts issue rulings with opposite interpretations of federal law.
• Hemphill v. New York concerns a criminal defendant’s constitutional right to be confronted by the witnesses against him.

Oct. 6

• United States v. Zubaydah concerns the state-secrets privilege, an evidentiary rule that allows the government to withhold information if disclosure would harm national security. 

Next week, SCOTUS will hear four hours of oral argument in four cases.

To date, the court has agreed to hear 39 cases this term. Three cases were dismissed and one case was removed from the argument calendar. Eight cases have not yet been scheduled for argument.

FDA authorizes new rapid at-home COVID-19 antigen test, several companies file for approval for coronavirus treatments

On Oct. 4, the FDA authorized ACON Laboratories’ rapid at-home COVID-19 antigen test. ACON Laboratories said it expects to produce as many as 100 million tests per month by the start of 2022.

Director of the FDA’s Center for Devices and Radiological Health Jeff Shuren said, “As a result of this authorization, we will now have tens of millions of additional tests available in the U.S. marketplace very soon.”

Additionally, on Oct. 5, pharmaceutical and biotechnology company AstraZeneca announced it was seeking emergency use authorization (EUA) from the Food and Drug Administration (FDA) for an antibody therapy designed to protect against COVID-19. Johnson & Johnson also announced that it requested the Food and Drug Administration (FDA) authorize booster shots of its vaccine.

Indiana completes redistricting; Iowa Legislature rejects first map proposal

Indiana became the fourth state to enact new congressional and state legislative district boundaries after the 2020 census. The General Assembly approved the maps on Oct. 1, and Gov. Eric Holcomb (R) signed them into law on Oct. 4. In Indiana, the state legislature is responsible for drawing both congressional and state legislative district lines. Indiana has been a Republican state government trifecta since 2011.

The Indiana state Senate approved the final congressional and legislative district boundaries by a vote of 36-12, with all votes to approve coming from Republicans. Eleven Senate Democrats joined state Sen. Ron Grooms (R) in voting against the maps. The Indiana House of Representatives approved the final district maps by a vote of 64-25. All votes in favor were by Republicans with 22 Democrats and three Republicans voting against.

Kaitlin Lange of the Indianapolis Star wrote that the new congressional boundaries “will enable Republicans to keep seven of the nine congressional seats in Indiana and make the 5th District, which contains suburban Hamilton County, a more reliably Republican district.” The maps will take effect for the 2022 congressional and state legislative elections.

In Iowa, the state Senate rejected the Legislative Services Agency’s (LSA) first proposed congressional and state legislative district boundaries on Oct. 5. The vote was 32-18 along party lines with all votes against the plan from Republicans and all votes in favor by Democrats. Since this was the Agency’s first proposal, the legislature could only vote to approve or reject the maps and could not make any amendments. 

After the vote, Senate Majority Leader Jack Whitver (R) said, “Senate Republicans believe LSA can improve the compactness and population deviation of several districts by developing a second redistricting plan. My colleagues and I look forward to reviewing that plan and its compliance with the criteria established in Iowa Code.” Senate Minority Leader Zach Wahls (D) said, “This was a fair map drawn by the nonpartisan, independent commission. It met all the requirements laid out in state law. This is an outrageous use of political power to rig elections in their favor.”

Under state law, the LSA must send a second redistricting plan to the legislature within 35 days. On Oct. 6, the LSA announced that it would submit its next proposed congressional and legislative redistricting maps to the legislature by Oct. 21. On Sept. 14, the Iowa Supreme Court extended the state’s deadline to complete legislative redistricting to Dec. 1.