Bernie Sanders leads Democratic pageviews for second consecutive week; Deval Patrick sees biggest increase in pageviews

Each week, we report the number of pageviews received by 2020 presidential campaigns on Ballotpedia. These numbers reflect the time investments of our community of thousands of readers who visit a Ballotpedia because they think the candidate is worth knowing more about, whether they believe the candidate has a strong chance of winning or is an unknown who warrants a closer look.

Last week, Bernie Sanders led all Democratic campaigns in pageviews. His campaign page was viewed 3,568 times, equaling 15.5% of pageviews for all Democratic campaigns this week. He was followed by Joe Biden with 11.2% of pageviews and Michael Bloomberg with 10.2%.

Deval Patrick’s campaign received the most pageviews this week relative to last week. His campaign page increased in pageviews by 55.3 percent. Andrew Yang saw the smallest increase in pageviews relative to last week among Democratic candidates with 7.4 percent.

The top three Democratic presidential candidates in lifetime pageviews are Yang with 162,812, Pete Buttigieg with 153,302, and Biden with 146,353.

As in previous weeks, every other Republican candidate led Donald Trump in pageviews. Trump received 1,857 pageviews, while Joe Walsh received 3,537, Roque de la Fuente received 3,233, and Bill Weld received 3,093.

Click here to learn more.

FTC faces due process challenge to adjudication, administrative law judges

The Federal Trade Commission (FTC) on January 3 became the latest federal agency to face a constitutional challenge to its adjudication procedures, including the role of administrative law judges (ALJs). Axon Enterprises Inc. filed a complaint in the United States District Court for the District of Arizona arguing that the FTC’s adjudication procedures vest the agency and its ALJs “with the powers of prosecutor, judge, and jury in violation of the Due Process and Equal Protection guarantees of the U.S. Constitution.”

Axon, a police equipment manufacturer, filed the complaint in response to a December order from the FTC blocking the company’s acquisition of Vievu LLC, a competing manufacturer of police body cameras. The FTC claimed in part that Axon’s acquisition of Vievu eliminated competition in the police body camera market. Axon contested the claim and argued that the in-house adjudication procedures used by the FTC to pursue the action are unconstitutional because they subject the company to a “biased administrative proceeding with a preordained result.”

Axon claims that the ALJs of the FTC do not act as neutral decision makers during agency adjudication. Instead, the company argues that the ALJs jointly act as prosecutor, judge, and jury.

Axon’s constitutional challenge to the use of ALJs departs from previous challenges because it centers on due process claims rather than Appointments Clause questions, like the challenges faced by the Securities and Exchange Commission (SEC) and the Patent Trial and Appeal Board (PTAB) in recent years

In the 2018 United States Supreme Court case Lucia v. SEC, the court held that the SEC’s ALJs are inferior officers (rather than agency employees) who must be appointed by the agency’s commissioners as required by the Constitution’s Appointments Clause. In October, a three-judge panel of the United States Court of Appeals for the Federal Circuit stripped administrative patent judges—a position similar to ALJs that is specific to the Patent Trial and Appeal Board (PTAB)—of their for-cause removal protections in order to classify them as inferior officers in accordance with the Appointments Clause.

Click here to learn more.

Additional reading:
Adjudication (administrative state)
Federal Trade Commission
Lucia v. SEC

U.S. House passes CRA resolution to block Department of Education student loan rule

The U.S. House of Representatives voted 231 to 180 on January 16 to pass a resolution under the Congressional Review Act (CRA) to block a final rule related to government forgiveness of certain student loan debt. Two hundred and twenty-five Democrats and six Republicans voted to pass the resolution while 179 Republicans and Justin Amash (I-Mich.) voted nay.

The Department of Education (DOE) issued the 146-page rule in September 2019. The rule changed the process students must follow to discharge their loans and empowered the agency to collect money from schools to cover financial losses following successful student challenges. Education Secretary Betsy DeVos argued in a December press release that the new rule “ensures that taxpayers who did not go to college or who faithfully paid off their student loans do not shoulder student loan costs for those who didn’t suffer harm.”

U.S. Senate Minority Whip Dick Durbin (D.-Ill.) argued after the U.S. House passed the CRA resolution that the DOE rule “guts essential protections for student borrowers and taxpayers.” He sponsored an identical CRA resolution in the U.S. Senate in September 2019. That resolution has attracted 40 Democratic cosponsors and the two Independent U.S. senators.

The CRA resolution must pass both houses of Congress and receive President Trump’s signature to repeal the rule.

The CRA gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register since the law’s creation in 1996.

To learn more about the Congressional Review Act and its use, click here.

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act by clicking here.

Additional reading:
Final rule
Federal Register
Betsy DeVos
U.S. Department of Education

Click here to see the roll call vote.

Click here to see the text of the DOE rule.

Lawsuit claims new SNAP work requirements are unlawful

A group of states, the District of Columbia, and New York City filed a lawsuit on January 16 against the U.S. Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. The lawsuit argues that a December 2019 rule violated federal law and arbitrarily reversed decades of policies governing when states could seek waivers from Supplemental Nutrition Assistance Program (SNAP) work requirements.

The plaintiffs asked the court to apply the Administrative Procedure Act’s (APA) arbitrary-or-capricious test to block the USDA from implementing the rule. Under that test, courts reviewing agency actions must throw out any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The plaintiffs also argued that the USDA failed to allow stakeholders to comment on the rule during the planning process—a potential violation of informal rulemaking requirements.

The USDA rule grants state waivers to SNAP work requirements for able-bodied adults without dependents only if the unemployment rate is higher than six percent. In the past, the USDA granted waivers to states with areas of average unemployment 20 percent above the national average. The rule also prevents states from combining areas of high and low unemployment to receive waivers for larger geographic areas.

The USDA proposed the rule in response to President Trump’s Executive Order 13828, which directed agencies to strengthen work requirements for work-capable individuals receiving benefits from public assistance programs. The executive order instructed agencies to review regulations and guidance documents to see whether they increased self-sufficiency, well-being, and economic mobility.

To learn more about the Administrative Procedure Act or the arbitrary-or-capricious test, click here. here to learn more.

Additional reading:
United States District Court for the District of Columbia
U.S. Department of Agriculture
Informal rulemaking 
Executive order

Click here to view the lawsuit.

Click here to see the rule in the Federal Register.

Hunter becomes chair of Federal Election Commission

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.

Click here to learn more.

Federal Register weekly update; 2020 page total exceeds 2019 and 2018

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.

U.S. Supreme Court issues opinions in two cases

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.

Click here to learn more.

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

Traynor receives commission to North Dakota federal court

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.

Click here to learn more.

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

Chief Justice John Roberts, U.S. senators sworn in for impeachment trial of President Donald Trump

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.

Click here to learn more.


FLRA hears testimony in bid to decertify immigration judge union

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.

Click here to learn more.

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