The Federal Tap: Biden signs Infrastructure Investment and Jobs Act into law

Our weekly summary of federal news highlights the Infrastructure Investment and Jobs Act becoming law and a judicial ruling against the American Rescue Plan Act’s tax provision. Read all about it in this week’s edition of the Federal Tap.

We won’t publish the Tap next week due to the Thanksgiving holiday. Our next edition will be on Dec. 4.

Biden signs Infrastructure Investment and Jobs Act into law

President Joe Biden (D) signed the Infrastructure Investment and Jobs Act into law on Nov. 15. The law allocates $1.2 trillion in new and regular annual infrastructure spending. It includes provisions to invest $89.9 billion in new infrastructure funding and reauthorizations, $66 billion in funding for Amtrak maintenance and development, and $65 billion to create universal access to reliable high-speed internet.

The bill was approved by the Senate on Aug. 10 in a 69-30 vote. All 48 Democrats and the two independents who caucus with Democrats voted in favor of the bill, along with 19 Republicans. Thirty Republicans voted against the bill and one abstained.

The House voted 228-206 to pass the bill on Nov. 5. The yeas consisted of 215 Democrats, who were joined by 13 Republicans, while the nays were made up of 200 Republicans and six Democrats.

Prior to the House passage of the bill, Democratic leaders in the chamber had been waiting on holding a vote until a vote could also be held on the final legislative language of the Build Back Better Act. On Nov. 6, the House voted to approve consideration of the Build Back Better Act.

U.S. district judge rules against American Rescue Plan Act tax provision

On Nov. 15, U.S. District Judge Scott Coogler, who was nominated to the court by George W. Bush (R) in 2003, blocked the enforcement of a provision in the American Rescue Plan Act (ARPA) that prevented states from using relief funds to offset tax reductions or credits. 

The lawsuit was brought by 13 states, led by West Virginia and Alabama. The other plaintiff states were: Arkansas, Alaska, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, and Utah. In their suit, they argued the provision in question violated the Constitution’s spending clause and the 10th Amendment.

In his ruling, Coogler said, “The language of the Tax Mandate makes it impossible for States to ‘make an informed choice’ about the costs of receiving ARPA funds because it is impossible to know how to exercise taxing authority without putting ARPA funds at risk.” He went on to say that, “any ARPA funds the Plaintiff States receive could be viewed as indirectly offsetting any reduction in net tax revenue from a change in state law or policy.”

Coogler’s ruling prevents the U.S. Treasury Department from enforcing the ARPA provision in any of the states that were plaintiffs in the suit. As of Nov. 18, the Department of Justice had not said whether it would seek to appeal the ruling.

Members of Congress not seeking re-election in 2022

Thirty-two members of Congress—six members of the U.S. Senate and 26 members of the U.S. House—have announced they will not seek re-election. Twenty members—six senators and 14 representatives—have announced their retirement. Five retiring Senate members are Republicans and one is a Democrat, and of the retiring House members, 10 are Democrats and four are Republicans.

Biden issues no pardons or commutations through Sept. 30

From his inauguration through Sept. 30, President Joe Biden (D) issued no pardons or commutations. Since 1902, the other presidents not to issue a pardon or commutation in that same window of time were Barack Obama (D), George W. Bush (R), Bill Clinton (D), and Richard Nixon (R). Obama, Bush, and Clinton did not issue a pardon or commutation until their third year in office. As of November 2021, presidents have issued an average of 120.4 pardons and 55.8 commutations annually.

The U.S. Department of Justice maintains a record of statistics about pardons and commutations. These figures are broken down by fiscal years, which run from Oct. 1 to Sept. 30. When presidential transitions occur (such as between Donald Trump and Biden), both presidents can issue pardons and commutations in the same fiscal year.

The U.S. Constitution, in Article II, Section 2, grants the president the power of executive clemency. Executive clemency includes the power to pardon, in which the president overturns a federal conviction and restores “an individual to the state of innocence that existed before the conviction.” Executive clemency also includes the power of commutation, which allows a president to shorten or reduce a federal prison sentence.

Nevada is 14th state to enact new congressional maps; authority over redistricting in Washington passes to state supreme court

Nevada: Governor Steve Sisolak (D) signed the state’s new congressional and legislative maps into law on Nov. 16, which will take effect during the 2022 election cycle.

The Nevada Senate approved the redistricting plans by a 12-9 vote on Nov. 14 followed by the state Assembly voting 25-17 on Nov. 16. The maps were passed largely along party lines, with Democrats voting to approve and Republicans voting against.

After signing the maps, Sisolak said, “After a thoughtful, efficient and productive session, I am proud to sign these bills into law today. These maps reflect Nevada’s diversity and reflect public feedback gathered throughout the legislative process.” State Assm. Jill Dickman (R) said, “This bill is universally disliked, but the reason has nothing to do with compromise because there was none.” 

Nevada is the 14th state to enact congressional maps after the 2020 census. During the 2010 redistricting cycle, Nevada enacted its congressional map on Oct. 27, 2011, 20 days earlier than this year. Congressional redistricting is now complete for 111 of the 435 seats (25.5%) in the U.S. House of Representatives.

Washington: On Nov. 16, the Washington Redistricting Commission announced that it did not produce new congressional and legislative redistricting plans by its Nov. 15 deadline. According to state law, the authority to draw new maps now rests with the Washington Supreme Court, which has until April 30, 2022, to produce new maps. Although past the deadline, the commission ultimately agreed upon map plans on Nov. 16 and submitted them to the state supreme court for consideration.

In Washington, congressional and state legislative district boundaries are drawn by a five-member non-politician commission that was established by a constitutional amendment in 1983. The majority and minority leaders of the state Senate and House each appoint one registered voter to the commission. These four commissioners then appoint a fifth, non-voting member to serve as chair.

After the 2010 census, the commission agreed upon new congressional and legislative district plans on Jan. 1, 2012, which was the deadline for them to approve maps before authority over redistricting would have passed to the state supreme court.

Upcoming Article III judicial vacancies

According to the latest vacancy data from the U.S. Courts, there were 35 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Jan. 21, 2021, when U.S. District Court for the Southern District of Texas Judge Vanessa Gilmore announced that she would retire on Jan. 2, 2022. The most recent announcement was on Nov. 4, when U.S. Court of Appeals for the 2nd Circuit Judge Susan Carney announced that she would assume senior status upon the confirmation of her successor. As of Nov. 19, 18 vacancy effective dates were unknown because the judge had not announced the date they would leave the bench. The next upcoming vacancy is scheduled to occur on Nov. 23, when U.S. District Court for the Eastern District of Virginia Judge Raymond Alvin Jackson assumes senior status.

For historical comparison, the week of Nov. 15-21, 2020, there were 61 federal judicial vacancies and three upcoming vacancies in the federal judiciary reported by the U.S. Courts.

Congress is out of session

Both the House and Senate are out of session next week. Click here to see the full calendar for the first session of the 117th Congress.

SCOTUS is out of session

The Supreme Court will not hear oral arguments next week. To learn about the 2021-2022 term, click here.

Where was the president last week?

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

On Tuesday, Biden delivered remarks on the infrastructure law in Woodstock, New Hampshire. 

On Wednesday, Biden delivered remarks on the infrastructure law at General Motors’ Factory ZERO, Detroit-Hamtramck Assembly Center in Detroit, Michigan.  

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

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

Federal Judiciary

  • 77 federal judicial vacancies
  • 26 pending nominations
  • 35 future federal judicial vacancies