Our weekly summary of federal news highlights redistricting updates in Hawaii, New York, and Pennsylvania, and the FDA approving the Moderna COVID-19 vaccine. Read all about it in this week’s edition of the Federal Tap.

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Congress is in session

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

Forty-eight members of Congress—six members of the U.S. Senate and 42 members of the U.S. House—have announced they will not seek re-election. Of those, thirty-three members—six senators and 27 representatives—have announced their retirement. Five retiring Senate members are Republicans and one is a Democrat, and of the retiring House members, 21 are Democrats and six are Republicans.

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, Tuesday, and Wednesday, Biden remained in Washington D.C.
On Thursday, Biden traveled to New York City, where he met with New York Mayor Eric Andrews (D) and Gov. Kathy Hochul (D)
On Friday, Biden traveled to Wilmington, Delaware

Federal Judiciary

• 78 federal judicial vacancies
• 29 pending nominations
• 38 future federal judicial vacancies

Upcoming Article III Judicial Vacancies

According to the latest vacancy data from the U.S. Courts, there were 38 total announced upcoming vacancies for Article III judgeships. The earliest vacancy announcement was on Jan. 22, 2021, when U.S. District Court for the District of Maryland Judge Ellen Hollander announced she would assume senior status upon the confirmation of her successor. The most recent was on Jan. 12, 2022, when U.S. Supreme Court Justice Stephen Breyer announced that he would retire from the court following the conclusion of SCOTUS’ current term. Twenty-three vacancy effective dates have not been determined because the judge has not announced the date they will leave the bench. The next upcoming vacancy will occur on Feb. 14, 2022, when U.S. District Court for the Central District of California Judge Virginia Phillips retires. 

For historical comparison, on Feb. 6, 2021, there were 60 federal judicial vacancies and 18 upcoming vacancies in the federal judiciary reported by the U.S. Courts.

SCOTUS releases March argument calendar

The Supreme Court of the United States (SCOTUS) on Jan. 28 released its March argument calendar for the 2021-2022 term, scheduling nine cases for argument. Two of the cases were consolidated for one hour of oral argument. In total, the court will hear eight hours of arguments between March 21 and March 30. 

Click the links below to learn more about the cases:

March 21

• Morgan v. Sundance, Inc. concerns a circuit split regarding arbitration clauses, the Fair Labor Standards Act of 1938 (FLSA), and the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011).
• Berger v. North Carolina State Conference of the NAACP concerns whether North Carolina legislators may intervene to defend the state’s voter identification law in constitutional challenges and lawsuits concerning the Voting Rights Act.

March 22

• Golan v. Saada concerns the interpretation of international law when a minor child is abducted across national borders during a domestic dispute.

March 23

• ZF Automotive US, Inc. v. Luxshare, Ltd. (consolidated with AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States) concerns arbitration proceedings generally and, specifically, U.S. district courts’ authority to compel parties to produce evidentiary details in private arbitration for foreign or international tribunals.

March 28

• LeDure v. Union Pacific Railroad Company concerns the meaning of a locomotive being in use for purposes of liability under the Locomotive Inspection Act.
• Southwest Airlines v. Saxon concerns the definition of transportation workers for purposes of exemption from the Federal Arbitration Act.

March 29

• Torres v. Texas Department of Public Safety concerns the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and sovereign immunity.

March 30

• Viking River Cruises, Inc. v. Moriana concerns a potential conflict between federal and state arbitration laws in certain types of arbitration proceedings.

To date, the court has agreed to hear 65 cases during its 2021-2022 term. Four cases were dismissed, and one case was removed from the argument calendar. Nine cases have not yet been scheduled for argument.

Food and Drug Administration approves Moderna coronavirus vaccine, receives authorization requests from Pfizer, Novavax

On Feb. 1, the Food and Drug Administration (FDA) gave full approval for Moderna’s coronavirus vaccine for use in individuals 18 and older. This is the second vaccine to receive approval for that age group, with the first being Pfizer’s on Aug. 23, 2021. Moderna’s vaccine initially received emergency use authorization on Dec. 18, 2020.

Additionally, on Jan. 31, the FDA received emergency use authorization requests from Pfizer and Novavax. Pfizer requested authorization for use of its coronavirus vaccine for children under the age of 5. The Pfizer vaccine is currently the only vaccine to receive authorization from the FDA for use in individuals under the age of 18. The FDA said it would meet to make a recommendation on Feb. 15. In order for the authorization to become effective, the Centers for Disease Control and Prevention (CDC) would also need to meet and authorize the use of the vaccine for that age group.

Novavax submitted a request for emergency use authorization of its coronavirus vaccine for individuals 18 and older. If authorized, it would become the fourth vaccine available to American adults. The last time the FDA issued emergency use authorization for a new vaccine was in Fe. 2021, when it authorized the Johnson & Johnson vaccine.

Hawaii, New York enact new congressional district maps; Pennsylvania Supreme Court assumes control over redistricting

Hawaii

Hawaii’s Office of Elections formally published the state’s final congressional redistricting plan on Jan. 31 after the Hawaii Reapportionment Commission voted 8-1 on Jan. 28 to approve the proposal. 

Two congressional district maps were presented to the commission at their meeting on Sept. 9, 2021. One map kept the congressional lines as they were drawn following the 2010 census. An alternate map slightly adjusted the lines along the western coast of Oahu. On Oct. 14, the commission voted to adopt the alternate proposal. After hearing public testimony, the commission drafted a final proposal on Jan. 26. 

Commissioner Cal Chipchase said the proposals were responsive to public input and followed state statutes. “I am satisfied that the technical committee and that this commission has considered all of the constitutional criteria, as practicable, rather than favoring any one or ignoring any condition,” Chipchase said. Bill Hicks, a Hawaii citizen who submitted proposals to the commission, criticized the commission’s approach to the new maps. “It is best to construct compliant House districts first and use them as building blocks for not only Senate districts, but also for Congressional districts. Construct the Congressional districts last and not first,” Hicks said.

Hawaii was apportioned two seats in the U.S. House of Representatives after the 2020 census, the same number it received after the 2010 census. This map will take effect for Hawaii’s 2022 congressional elections.

New York

New York enacted a new congressional redistricting plan on Feb. 2 after Gov. Kathy Hochul (D) signed a measure approved by the legislature. According to Marina Villeneuve of NBC 4 New York, the congressional map would give the Democratic party “an advantage in 22 of the state’s 26 congressional districts and mean re-election trouble for several Republican members of the U.S. House.” After the 2020 census, New York was apportioned 26 seats in the U.S. House of Representatives, a loss of one seat as compared to apportionment after the 2010 census.

On Jan. 3, the New York Independent Redistricting Commission voted 5-5 on two legislative redistricting proposals, one offered by Democrats on the commission and the other proposed by the commission’s Republicans. The New York legislature, which was not able to amend the proposals, rejected both maps on Jan. 10. The commission then had 15 days to draw new maps but announced on Jan. 24 it would not submit any new proposals. Since the commission did not submit a revised map by Jan. 25, the legislature was allowed to amend or create new redistricting proposals.

Voters in New York approved a state constitutional amendment—Proposal 1—in 2014 which created a redistricting commission to draw legislative and congressional districts. After the commission’s 5-5 vote, The Buffalo News editorial board wrote, “That outcome was baked into the system created by a 2014 constitutional amendment. With both parties angling for advantage, the failure of Republicans and Democrats to agree was inevitable. Balanced is not the same as independent.”

Pennsylvania

The Pennsylvania Supreme Court ruled on Feb. 2 that it would exercise control over the process of selecting the state’s new congressional map. In a 5-2 decision, the court designated Commonwealth Court Justice Patricia McCullough (R) as a special master and directed her to recommend a new congressional map by Feb. 7. McCullough was originally assigned responsibility for redistricting after Gov. Tom Wolf (D) vetoed a map approved by the legislature. Candidates running for U.S. House districts in Pennsylvania may begin gathering signatures on Feb. 15. 

The court’s order stated, “given the impasse between the legislative and executive branches concerning the adoption of congressional districts, and in view of the impact that protracted appeals will have on the election calendar, and time being of the essence, Petitioners’ Emergency Application for Extraordinary Relief is GRANTED, and Extraordinary Jurisdiction under 42 Pa.C.S. § 726 is EXERCISED.”

Five judges on the state supreme court were elected in partisan elections as Democrats, and two were elected as Republicans. Pennsylvania currently has divided government with a Democratic governor and Republicans controlling both chambers of the legislature. Pennsylvania was apportioned 17 seats in the U.S. House of Representatives, a net loss of one seat as compared to apportionment after the 2010 census.

Congressional redistricting has been completed for 299 of the 435 seats (68.7%) in the U.S. House of Representatives.