SCOTUS to hear case concerning Fourth Amendment

On Oct. 19, 2020, the Supreme Court of the United States (SCOTUS) granted review in the case “Lange v. California” for a total of one hour of oral argument during its October Term for 2020-2021. The case originated from the California First District Court of Appeal. “Lange v. California” has not yet been scheduled for argument.

The case:  While Arthur Lange was driving home on the highway in Sonoma, California, California Highway Patrol Officer Aaron Weikert pursued Lange with the intention of conducting a traffic stop. Weikert followed Lange home and activated his overhead lights once Lange pulled into his home’s driveway. Lange pulled into the garage and the garage door began closing behind him. Weikert approached Lange and stopped the garage from closing with his foot. He questioned Lange and asked if Lange knew Weikert was following him. Lange stated that he did not know Weikert was following him. Weikert stated he smelled alcohol on Lange’s breath and charged Lange with driving under the influence.

At trial, Lange claimed that Weikert’s entry into Lange’s home violated the Fourth Amendment to the U.S. Constitution since Weikert did not have a warrant to enter Lange’s home, and the court moved to suppress a video recording of the incident. The trial court concluded that the officer had probable cause, denied the motion to suppress, and issued a conviction for Lange. Following that action, a civil court ruled that Lange’s arrest was unlawful, while an appellate court ruled that the arrest was lawful. On appeal to the California First District Court of Appeal, the court affirmed the conviction.

The issue: Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.

The Supreme Court began hearing cases for the term on Oct. 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

As of October 19, 2020, the court had agreed to hear 39 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

Additional reading:

Cook Political Report, Sabato’s Crystal Ball change race rating of Georgia’s special U.S. Senate election

On Oct. 13, The Cook Political Report changed its race rating for the special U.S. Senate election in Georgia from “Lean Republican” to “Toss-up”. On Oct. 8, Sabato’s Crystal Ball changed its rating from “Likely Republican” to “Leans Republican”.

Polling in recent weeks has shown Raphael Warnock (D) leading incumbent Sen. Kelly Loeffler (R) and Rep. Doug Collins (R), who have been tied within, or near, margins of error. Recent polls from Quinnipiac showed Warnock with 41%, Collins with 22%, and Loeffler with 20%. Polls from Public Policy Polling show a similar margin, with Loeffler at 24% instead of 20%.

Twenty-one candidates are on the ballot: eight Democrats, six Republicans, five independents, one Green Party candidate and one Libertarian. If no candidate receives a majority of the vote on Nov. 3, a runoff between the top two vote-getters, regardless of party, will take place Jan. 5, 2021.

Republicans have held both of Georgia’s U.S. Senate seats since 2005. Gov. Brian Kemp (R) appointed Loeffler following Sen. Johnny Isakson’s (R) resignation in December 2019.

Georgia is also holding a regularly scheduled Senate election. Race raters call that election between incumbent Sen. David Perdue (R), Jon Ossof (D), and Shane Hazel (L), Toss-up, Tilt Republican, or Lean Republican.

RealClearPolitics’ polling average for the presidential election in Georgia suggested a competitive race, as of Monday, with Joe Biden (D) at 47.8% and Donald Trump (R) at 46.6%.

Additional Reading:

Senate Judiciary Committee to vote on Barrett’s Supreme Court nomination Oct. 22

The Senate Judiciary Committee will vote on whether to advance Judge Amy Coney Barrett‘s nomination for consideration before the full Senate. Twenty-two senators currently sit on that committee, including 12 Republicans and 10 Democrats.

President Donald Trump (R) nominated Barrett to the U.S. Supreme Court on Sept. 29 to fill the vacancy caused by the death of Ruth Bader Ginsburg on Sept. 18. Barrett’s confirmation hearings were held Oct. 12 – 15 before the Senate Judiciary Committee. On day one of the hearings, Chairman of the Senate Judiciary Committee Lindsey Graham (R-S.C.) provided opening statements, followed by members of the Senate Judiciary Committee. Sens. Todd Young (R-Ind.) and Mike Braun (R-Ind.) then introduced Barrett. After the introductions, Barrett gave her opening statement. The day ended with Barrett’s introduction to the committee by professor Patricia O’Hara, which was delayed due to technical difficulties during the initial introductions.

Day two of the hearings consisted of senators questioning Barrett for 11 hours, with each senator allotted 30 minutes. Recurring themes in the questioning included abortion, the Affordable Care Act, election disputes, legal access to firearms and same-sex marriage. On day three of the hearings, senators continued to question Barrett for nearly nine hours—with each senator allotted 20 minutes. Recurring themes in the questioning included abortion, election administration, immigration and presidential power.

On the fourth and final day of hearings, the Senate Judiciary Committee voted 12-10 to hold a committee vote on Barrett’s nomination. Most Democrats voted by proxy because they did not appear in person. The committee also heard witness testimony Witnesses in support of Barrett’s confirmation included the American Bar Association, former Judge Thomas Griffith, a law school professor, a former student and a former mentee and employee of Barrett. Witnesses opposed to Barrett’s confirmation included the president of the Lawyers’ Committee for Civil Rights Under Law, a medical doctor, a small business owner and activist and a nonprofit leader.

The average vacancy length on the Supreme Court since 1962 — when defined as the length of time elapsed between a justice’s departure date and the swearing-in of their successor — is 88 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia in 2016.

Additional reading:

Nine presidential candidates are each on more than 10 state ballots

Thirty-six presidential candidates are appearing on at least one ballot across the 50 states and Washington, D.C., on November 3, 2020. This is more than the 31 presidential candidates who also appeared on at least one ballot in 2016.

Three candidates are appearing on the ballot in all 51 jurisdictions:
• Former Vice President Joe Biden (D)
• Jo Jorgensen (L)
• President Donald Trump (R)

Green Party presidential nominee Howie Hawkins is on the ballot in 30 states.

Five other candidates are on the ballot in more than 10 states:
• Don Blankenship (Constitution), 18 ballots
• Brock Pierce (Independent), 16 ballots
• Gloria La Riva (Party for Socialism and Liberation), 15 ballots
• Roque De La Fuente (Alliance), 15 ballots
• Kanye West (Independent), 12 ballots

There are 21 candidates on the ballot each in Vermont and Colorado. The next largest presidential ballots are Arkansas and Louisiana with 13 candidates each. Twelve states have only three candidates on the ballot.

In 2016, Colorado had the most candidates on the ballot: 22. Louisiana followed with 13 candidates.

Excluding unaffiliated, independent, and nonpartisan candidates, there were 37 parties represented on the ballot in 2016 and 36 represented in 2020.

U.S. Supreme Court agrees to hear Appointments Clause challenge to administrative patent judges

On October 13, the U.S. Supreme Court agreed to hear United States v. Arthrex Inc., a case involving the president’s appointment and removal power and whether administrative patent judges (APJs) are principal officers of the United States who must be appointed by the president and confirmed by the U.S. Senate.

After losing a patent dispute before three APJs, Arthrex, Inc. appealed their decision to the U.S. Court of Appeals for the Federal Circuit. Arthrex argued that the APJs were principal officers and that allowing the secretary of commerce to appoint them violated the Appointments Clause in Article II of the U.S. Constitution. The Federal Circuit ruled in Arthrex’s favor, holding that the removal protections APJs enjoy as members of the federal civil service makes them principal officers who must be appointed by the president, not the secretary of commerce.

To resolve what they saw as an unconstitutional process, the Federal Circuit ruled that federal removal protections could not apply to APJs moving forward. The court’s opinion states that making the APJs removable at-will changes them into inferior officers and allows the secretary of commerce to appoint them.

The U.S. government appealed the decision of the Federal Circuit. Former Solicitor General Noel Francisco argued that the U.S. Supreme Court should review the case because the Federal Circuit’s decision found “a constitutional infirmity in the statutory framework that governs more than 200 agency adjudicators, in an agency that administers intellectual-property rights affecting vast swaths of the Nation’s economy.” He also argued that the Federal Circuit was wrong to conclude that APJs were principal officers that needed to be appointed by the president and confirmed by the U.S. Senate.

The Appointments Clause of the U.S. Constitution gives the president the power, with the advice and consent of the U.S. Senate, to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and other officers of the United States. The clause allows Congress to give authority to the president alone, courts, or department heads to appoint inferior officers.

Debates over the extent of the appointment and removal power and how it applies to those who work in federal agencies are part of a broader debate about executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about the case or the appointment and removal power, see here:
United States v. Arthrex Inc.
Appointment and removal power (administrative state)

Additional reading:
Five pillars of the administrative state: Executive control of agencies
Arguments in favor of strong executive appointment and removal power
Arguments against strong executive appointment and removal power
Reform proposals related to executive appointment and removal power
List of scholarly work pertaining to executive appointment and removal power

Link to the October 13 SCOTUS order list:

Link to the U.S. Government petition for certiorari:

Link to the Federal Circuit opinion:

SCOTUS allows Trump administration to end 2020 census count

The U.S. Supreme Court issued an order on Oct. 13 which allows the Trump administration to end the 2020 census count. SCOTUS stayed an order from the 9th U.S. Circuit Court of Appeals, which had directed the Trump administration to continue to gather data through the end of October.

The Trump administration had argued that they must be able to conclude the count before the end of October in order to meet a Dec. 31 deadline to report the results to the president. The Justice Department had told the court that “there is virtually no prospect that the [U.S. Census] Bureau will be able to comply with the statutory deadline,” unless they were allowed to end the count.

Justice Sonia Sotomayor dissented, saying: “[T]he harms associated with an inaccurate census are avoidable and intolerable,” and that “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

After the order was issued, the U.S. Census Bureau announced that they would be shutting down on Oct. 15. It has also set that date as the postmark deadline for paper census forms sent by mail, and as the end date for collecting responses through phone calls and door-knocking.

Every ten years, the U.S. Census Bureau conducts a nationwide census in order to provide a comprehensive count of the population with demographic information. This information is used by the government in many ways, including for the apportionment of seats in the U.S. House of Representatives and the allocation of federal funds.

Additional reading:
Supreme Court cases, October term 2020-2021
Supreme Court of the United States
United States Census Bureau
United States Court of Appeals for the Ninth Circuit
Sonia Sotomayor

Learn more about the arguments in the debate over lockdown/stay-at-home orders during the coronavirus pandemic

Discussions about policy responses to the coronavirus are happening at a fast pace. As part of our ongoing coverage Documenting America’s Path to Recovery, Ballotpedia has published a series of articles capturing the regular themes in support of and opposition to these policy responses.

Here’s how it works. First, we identify a topic area, (such as mask requirements or testing). Next, we gather and curate articles and commentary from public officials, think tanks, journalists, scientists, economists, and others. Finally, we organize that commentary into broad, thematic summaries of the arguments put forth.

We’ve identified the following arguments as some of those in favor of lockdown/stay-at-home orders:

  1. The orders are necessary,
  2. The orders are better for the economy long-term,
  3. The orders are legal, and
  4. The orders are limited.

We’ve identified the following arguments as some of those against lockdown/stay-at-home orders:

  1. The orders are unnecessary,
  2. The orders are worse than the coronavirus pandemic itself,
  3. The orders are illegal, and
  4. The orders go too far.

To read more about these issues, click the links below.

Additional reading:

Who runs elections in the United States?

Election administration in the U.S. is largely decentralized. Administrators at the state and local level are responsible for running elections, from maintaining voter registration records to counting ballots. As a result, election laws and procedures vary widely among states and localities.

Each state has an agency that manages elections. Responsibilities of the state-level office often include training local elections officials, maintaining a voter registration database, and offering guidance on the testing of voting machines. Each state also has a head elections official. In 24 states, the chief elections official is an elected Secretary of State.

At the local level, county governments are most commonly responsible for election administration, rather than city or town governments. According to one estimate, more than 10,000 local entities administrate elections in the U.S. In many municipalities, elections are managed by a clerk, recorder, or registrar, who has other duties in addition to running elections.

On the national level, the Election Assistance Commission is responsible for maintaining a national voter registration form and offers guidance on elections administration to state agencies. Meanwhile, the Federal Election Commission (FEC) is responsible for enforcing federal campaign finance laws. Established in 1975, the FEC manages public funding of presidential campaigns, oversees limits on campaign contributions, and publishes information on how campaigns raise and spend money.

Additional reading:

Supreme Court announces it will use teleconferencing to hear oral arguments for November, December sittings

The Supreme Court of the United States announced on October 9, 2020, that it will hear oral arguments via teleconference for its November and December sittings. Currently, eight arguments are set for November, and ten are set for December.

The court previously heard oral arguments via teleconference in May and October of this year after closing to the public indefinitely on March 12, 2020, due to the COVID-19 pandemic. The live audio from the arguments was made available to the public for the first time in the court’s history; previously, the court released audio and transcripts of oral arguments on Fridays.

The arguments will follow the same format the court used formerly, including rules dictating which Justices will ask questions based on seniority.

Additional reading:

U.S. Supreme Court declines to hear case challenging Chevron deference

On October 5, the U.S. Supreme Court rejected a challenge against Chevron deference brought by the Children’s Hospital Association of Texas. The association had asked whether courts should give Chevron deference to agency legal interpretations that are different from previous agency interpretations.

Chevron deference is an approach to judicial review that compels federal courts to yield to a federal agency’s reasonable interpretation of an ambiguous or unclear statute instead of using the courts’ own interpretation. Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

The challenge to Chevron came out of a decision issued by the U.S. Court of Appeals for the D.C. Circuit.

The association argued in its petition to the U.S. Supreme Court that the D.C. Circuit should not have upheld the rule under Chevron. The petition says, “the court of appeals chose to ‘skip’ Chevron step one, brushed aside canons of statutory construction, and looked past what it acknowledged was a legal error in a key premise of the agency’s rulemaking—the agency’s insistence that its new regulation merely clarified, and was consistent with, existing policy. In numerous ways, this ruling conflicts with decisions from other circuits and this Court.

Judge Karen Henderson, a George H.W. Bush appointee, wrote the opinion for the D.C. Circuit saying, “The familiar Chevron framework guides our review.” She held that the statute was clear, so the court needed only to decide whether the agency’s interpretation was reasonable. Henderson wrote that the rule was consistent with the Medicaid law and upheld it.

Since the U.S. Supreme Court denied review of the case, the 2019 decision of the D.C. Circuit will remain in effect.

To learn more about Chevron deference or judicial deference, see here: