CategoryFederal

On January 1, 2020, FEC commissioner Caroline C. Hunter (R) assumed the role of Federal Election Commission (FEC) chairwoman. Hunter is serving her second non-consecutive one year term as FEC Chairwoman and 12th year on the commission.

The Federal Election Commission is an independent regulatory agency created by Congress in 1975 to administer and enforce the Federal Elections Campaign Act. The FEC is responsible for disclosing campaign finance information, enforcing limits and prohibitions on contributions, and overseeing the public funding of presidential elections.

The commission is led by six members that are appointed by the president and confirmed by the Senate. They each serve six-year terms, with two seats up for appointment every two years. To prevent partisanship, no more than three members can be of the same political party. The chairs of the commission serve one-year terms

After Vice Chairman Matthew Petersen (R) resigned on August 31, the FEC has three members. The minimum number of members that must be present to make the agency’s decisions valid—known as a quorum—is four. The FEC will continue to make campaign finance documents available to the public and issue recommendations regarding campaign finance complaints. However, it will be unable to vote on recommendations until a quorum is established.

All of the FEC’s current members are holdover members of the board, meaning they have served longer than their original six-year term. President Donald J. Trump nominated James E. Trainor III to the commission in 2017 but the nomination was returned to the president at the conclusion of the 115th Congress. There have been no new appointments to the FEC since Trainor’s appointment and no Senate confirmations of new FEC members since Lee E. Goodman and Ann Ravel were confirmed as new FEC members in October 2013.

Before serving as the FEC Chairwoman, Hunter served as the vice-chair of the U.S. Election Assistance Commission, deputy director of the White House Office of Public Liaison, and in the U.S. Department of Homeland Security. Before working within the government, Hunter served as deputy counsel of the Republican National Committee.

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The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.

From January 13 to January 17, the Federal Register grew to 3,228 pages. Over the same period in 2019 and 2018, the Federal Register grew to 194 pages and 2,884 pages, respectively. As of January 10, the 2020 total led the 2019 total by 3,034 pages and the 2018 total by 344 pages.

According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 493 documents:
• 384 notices
• one presidential document
• 42 proposed rules
• 66 final rules

One proposed rule and two final rules were deemed significant under E.O. 12866—meaning that they could have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2018 and 2017.

Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016.

On January 14, 2020, the Supreme Court of the United States issued rulings on two cases, Ritzen Group Inc. v. Jackson Masonry and Retirement Plan Committee of IBM v. Jander.

In the case Ritzen Group Inc. v. Jackson Masonry, Ritzen Group and Jackson Masonry both claimed that the other party breached contract after a sale of property fell through. A lawsuit Ritzen filed against Jackson in Tennessee state court was stayed after Jackson filed for bankruptcy. Ritzen filed a motion to lift the stay, which the bankruptcy court denied. Ritzen then filed a claim against Jackson in bankruptcy court. The bankruptcy court found Ritzen, not Jackson, breached the contract. On appeal, the district court affirmed the bankruptcy court’s ruling. On appeal again, the 6th Circuit affirmed the judgments of the district court and bankruptcy court.

The U.S. Supreme Court affirmed the ruling of the U.S. Court of Appeals for the 6th Circuit, ruling unanimously that a bankruptcy court’s order unreservedly denying relief from the automatic stay constitutes a final, immediately appealable order under §158(a). Justice Ruth Bader Ginsburg delivered the opinion of the court.

In the case Retirement Plan Committee of IBM v. Jander, Larry Jander invested in IBM’s retirement plan. After IBM sold its microelectronics business at a loss and shares fell, Jander alleged the IBM retirement plan committee violated their fiduciary duty of prudence to the pensioner under the Employee Retirement Income Security Act (ERISA). The U.S. District Court for the Southern District of New York dismissed Jander’s claim. On appeal, the 2nd Circuit reversed and remanded the case. The retirement committee petitioned the U.S. Supreme Court to hear the case, arguing the 2nd Circuit “subverted [a] pleading standard” established in Fifth Third Bancorp v. Dudenhoeffer.

The Supreme Court vacated and remanded the case in a per curiam decision. A per curiam decision is issued collectively by the court. The authorship is not indicated. Justices Elena Kagan and Ruth Bader Ginsburg filed a joint concurring opinion. Justice Neil Gorsuch also filed a concurring opinion.

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Additional reading:
Ritzen Group Inc. v. Jackson Masonry
Retirement Plan Committee of IBM v. Jander
Supreme Court of the United States

On January 13, 2020, Daniel Mack Traynor received his judicial commission to the U.S. District Court for the District of North Dakota.

Traynor was nominated to the court by President Donald Trump (R) on September 19, 2019, to succeed Judge Daniel Hovland, who assumed senior status on November 10, 2019. Traynor was confirmed by the U.S. Senate on December 19, 2019, by a vote of 51-41.

Following nomination by the president, a federal judicial nominee completes a questionnaire that is reviewed by the Senate Judiciary Committee. The committee then holds a hearing to question the nominee regarding their judicial philosophy and their previous rulings. The committee also sends the nominee’s home state senators a blue slip, permitting them to express their approval or disapproval of the nominee.

After the hearing, the committee votes to approve or return the nominee. If approved, the nominee is reported to the full Senate for a vote. If returned, the president may renominate the person. If the Senate confirms the nomination, the individual receives commission to serve as a federal judge for a life term. If the individual is not confirmed, they do not become a judge.

The U.S. District Court for the District of North Dakota has two active Article III judges, including Traynor. The other active judge is Peter Welte, who was also nominated by Trump.

The court’s two judges on senior status are:
• Patrick Conmy – nominated by President Ronald Reagan (R)
• Daniel Hovland – nominated by President George W. Bush (R)

The United States District Court for the District of North Dakota is one of 94 U.S. District Courts. They are the general trial courts of the United States federal court system. When decisions of the court are appealed, they are appealed to the Eighth Circuit Court of Appeals.

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Additional reading:
Federal judges nominated by Donald Trump
United States District Court for the District of North Dakota
Eighth Circuit Court of Appeals 

The impeachment trial of President Donald Trump (R) began on Thursday when seven House impeachment managers, led by Rep. Adam Schiff (D-Calif.), presented to the U.S. Senate two articles of impeachment against Trump for abuse of power and obstruction of Congress.

Supreme Court Chief Justice John Roberts was sworn in as the presiding officer of the trial. Ninety-nine U.S. senators—Sen. James Inhofe (R-Okla.) was not present—were then sworn in by Roberts to serve as jurors.

The trial is expected to continue with opening statements on Jan. 21.

Trump is the third president in U.S. history to be impeached. President Andrew Johnson was acquitted in 1868 after being charged with violating the Tenure of Office Act. In 1999, President Bill Clinton was acquitted of two charges for perjury and obstruction of justice.

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The Federal Labor Relations Authority (FLRA) held a hearing on January 7 to consider testimony on a petition filed by the U.S. Department of Justice (DOJ) in August that seeks to decertify the union representing the agency’s immigration judges (IJs), the National Association of Immigration Judges (NAIJ).

Decertification of the NAIJ could give DOJ officials more control over the work schedules and caseloads of immigration judges. The DOJ last attempted to decertify the NAIJ in 2000 under the Clinton administration, claiming at the time that IJs function in management roles and cannot legally participate in collective bargaining activities. FLRA rejected the DOJ’s petition in 2000, but the DOJ has since contended, in part, that changes to the Board of Immigration Appeals’ (BIA) review process in 2002 relaxed oversight of IJ decisions and strengthened IJs’ policymaking authority.

In the hearing, DOJ attorneys argued that IJs are management officials who cannot participate in union activities. Federal law defines management officials as “any individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.” IJs qualify as management officials, according to the DOJ, because they can issue final orders that set binding precedent for agency policy.

NAIJ attorneys disagreed with the DOJ’s assessment, arguing that IJs do not serve in management roles because management responsibilities would prevent them from focusing on immigration hearings. Moreover, the attorneys contended that orders issued by IJs can be appealed and reviewed, which limits their ability to set agency policy.

The FLRA is expected to issue a decision later this year.

IJs are a type of federal administrative adjudicator employed by the DOJ to preside over special classes of administrative adjudication proceedings pertaining to immigration, including removal proceedings. The department employed 424 immigration judges as of May 2019.

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Additional reading:
U.S. Department of Justice
Federal administrative adjudicators