CategoryFederal

D.C. Circuit rules against HHS approval of Arkansas Medicaid work requirements

The United States Court of Appeals for the District of Columbia Circuit ruled against an attempt to allow Arkansas to institute work requirements for Medicaid recipients.

On February 14, 2020, a three-judge panel of the D.C. Circuit ruled in Gresham v. Azar that Secretary of the U.S. Department of Health and Human Services (HHS), Alex Azar, failed the arbitrary-or-capricious test when he approved a request from Arkansas to require its Medicaid beneficiaries to work at least 80 hours per month.

The court held that Azar was wrong not to consider whether the Arkansas work requirements would prevent some people from receiving health care coverage. The court held that Congress intended Medicaid to provide health care coverage and that HHS must uphold that purpose when approving state coverage plans.

The Trump administration announced in January 2018 that it would allow states to implement work requirements for Medicaid recipients by obtaining waivers from HHS. Arkansas, Kentucky, and New Hampshire received waivers, but Judge James Boasberg of the United States District Court for the District of Columbia blocked them from going into effect. The D.C. Circuit decision in _Gresham_ followed an appeal of Boasberg’s ruling filed by Arkansas.

The judges on the D.C. Circuit panel were Cornelia Pillard, an Obama appointee, Edwards, a Carter appointee, and David Sentelle, a Reagan appointee. Judge Sentelle filed the opinion for the court.

To learn more about the APA or the arbitrary-or-capricious test, see here:
Administrative Procedure Act
Arbitrary-or-capricious test

Additional reading:
Alex Azar 
Medicaid
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company 
James Boasberg
United States District Court for the District of Columbia 

Link to the D.C. Circuit opinion: https://ij.org/wp-content/uploads/2020/02/19-5094.pdf



Federal Register weekly update; 500 new final rules in first two months of 2020

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 February 24 to February 28, the Federal Register grew by 1,938 pages for a year-to-date total of 12,206 pages. Over the same period in 2019 and 2018, the Federal Register reached 7,260 pages and 9,134 pages, respectively. As of February 28, the 2020 total led the 2019 total by 4,946 pages and the 2018 total by 3,072 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 641 documents:
• 494 notices
• four presidential documents
• 57 proposed rules
• 86 final rules
Three final rules and two proposed 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. The Trump administration in 2020 has issued seven significant proposed rules and 16 significant final rules as of February 21.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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

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



U.S. Senate confirms nominee to District Court of Puerto Rico

Photo credit: Andrew Shiva / Wikipedia

The U.S. Senate has confirmed Silvia Carreño-Coll to the U.S. District Court for the District of Puerto Rico on a 96-0 vote. Overall, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Carreño-Coll was a federal magistrate judge for the District of Puerto Rico from 2011 to 2020. Before that, she was associate regional counsel in the Environmental Protection Agency’s Caribbean Environmental Protection Division (1995-2011), an assistant U.S. attorney in the District of Puerto Rico (1989-1995), and an attorney in the Puerto Rico Department of Justice (1986-1989). Carreño-Coll earned her B.A., cum laude, from Emerson College in 1983 and her J.D., cum laude, from the University of Puerto Rico School of Law in 1986.

Carreño-Coll succeeded Judge Jay Garia-Gregory, who assumed senior status on September 30, 2018. After Carreño-Coll received commission, the U.S. District Court for the District of Puerto Rico had five Republican-appointed judges, two Democrat-appointed judges, and no vacancies.

The U.S. District Court for the District of Puerto Rico is one of 94 U.S. District Courts. They are the general trial courts of the United States federal court system.

Click here to learn more about Silvia Carreno-Coll

Additional reading:
United States District Court for the District of Puerto Rico
United States District Court
Federal judicial appointments by president
Federal judges nominated by Donald Trump



U.S. Rep. Ralph Abraham (R-La.) will not seek re-election

U.S. Rep. Ralph Abraham (R-La.) announced on February 26, 2020, that he will not seek re-election to the U.S. House. He said, “The decision to serve only three terms as a Member of the House is one that I made six years ago.”

Abraham was first elected to represent Louisiana’s 5th Congressional District in 2014. He was the 28th Republican member of the U.S. House to announce he would not seek re-election in 2020. Nine Democratic representatives have announced they will not seek re-election.

In the 2018 election cycle, 52 members of the U.S. House—34 Republicans and 18 Democrats—did not seek re-election.

Currently, Democrats hold a 232-197 majority in the U.S. House with one independent member of the chamber. In November 2020, all 435 seats will be up for election.

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U.S. Supreme Court includes birth control case on April argument calendar

A U.S. Supreme Court case scheduled for April 29 could clarify when notice-and-comment procedures satisfy the requirements of the Administrative Procedure Act (APA), allowing individuals to challenge more federal laws and regulations on religious grounds.

The case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , is about whether the Trump administration had the legal authority to issue rules providing a religious or moral exemption to the contraception mandate created under the Affordable Care Act, commonly known as Obamacare.

In a July 2019 ruling, the U.S. Court of Appeals for the Third Circuit upheld a nationwide injunction that blocked the new exemption rules from going into effect. That court held that the U.S. Department of the Treasury, U.S. Department of Labor, Internal Revenue Service, and U.S. Department of Health and Human Services did not have legal permission to modify the contraceptive requirements developed after Obamacare passed. The Third Circuit also held that the agencies violated APA notice-and-comment requirements.

The APA is a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking. The APA also addresses policy statements and licenses issued by agencies and provides for judicial review of agency adjudications and other final decisions. Under the APA’s informal rulemaking system, agencies must consider written public feedback on proposed rules submitted during a comment period.

Learn more about the case or rulemaking.

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U.S. Supreme Court issues opinions in four cases

On February 25, the Supreme Court of the United States issued opinions for four cases: McKinney v. Arizona, Rodriguez v. Federal Deposit Insurance Corporation, Hernandez v. Mesa, and Monasky v. Taglieri.

In the case McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death in 1993. The Arizona Supreme Court affirmed the sentence after an independent review. A federal district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentences.

In a 5-4 opinion, the U.S. Supreme Court affirmed the Arizona Supreme Court’s ruling, holding that a state appellate court, rather than a jury, may conduct a reweighing of aggravating and mitigating circumstances on habeas corpus review in cases concerning the death penalty. Justice Brett Kavanaugh delivered the opinion of the court. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

In the case Rodriguez v. Federal Deposit Insurance Corporation, United Western Bank closed after suffering $35.4 million in losses in 2011. The Federal Deposit Insurance Corporation (FDIC) was appointed as the bank’s receiver. Also in 2011, the parent company, United Western Bancorp, Inc. (UWBI), filed a tax refund request of $4.8 million to recover a portion of United Western Bank’s 2008 taxes. In 2012, UWBI filed for bankruptcy. Both the FDIC and UWBI argued in bankruptcy court that the tax refund belonged to them. The bankruptcy court ruled the refund belonged to UWBI. On appeal, the District of Colorado reversed the bankruptcy court’s decision. Simon Rodriguez, the Chapter 7 Trustee for UWBI’s bankruptcy estate, appealed to the 10th Circuit Court of Appeals, which affirmed the district court’s ruling and remanded the case to the bankruptcy court. Rodriguez petitioned the U.S. Supreme Court to review the 10th Circuit’s decision, arguing circuit courts were divided on the question of tax refund ownership.

The U.S. Supreme Court vacated and remanded the 10th Circuit’s decision in a 9-0 ruling, holding the Bob Richards rule “is not a legitimate exercise of federal common lawmaking,” in which federal judges—instead of Congress, agencies, or states—make laws. Justice Neil Gorsuch delivered the opinion of the court.

In the case Hernandez v. Mesa, U.S. Customs and Border Patrol Agent Jesus Mesa shot and killed 15-year-old Mexican national Sergio Hernandez in 2010. The Hernandez family filed charges against Mesa. The Western District of Texas dismissed the case. After several appeals, the U.S. Supreme Court heard arguments in Hernandez v. Mesa in 2016. At that time, SCOTUS vacated the 5th Circuit’s judgment and remanded the case so the 5th Circuit might reconsider its ruling in light of the Supreme Court’s opinion in Ziglar v. Abbasi (2017). On remand, the 5th Circuit ruled the Hernandez family could not rely on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (Bivens) to file charges and affirmed the district court’s dismissal of the case.

The U.S. Supreme Court affirmed the decision of the 5th Circuit in a 5-4 ruling, holding that the plaintiffs cannot sue the U.S. Customs and Border Patrol agent for damages under the U.S. Constitution and that the Bivens holding does not extend to claims based on a cross-border shooting. Justice Alito delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

In the case Monasky v. Taglieri, Italian citizen Domenico Taglieri and American citizen Michelle Monasky were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit sitting en banc affirmed the district court’s ruling.

The Supreme Court affirmed the 6th Circuit’s decision in a unanimous ruling, holding (1) an actual agreement between the parents on where to raise a child is not necessary to establish the child’s habitual residence and (2) a district court should use clear-error review to determine habitual residence under the Hague Convention. Justice Ruth Bader Ginsburg delivered the opinion of the court. Justice Clarence Thomas joined as to Parts I, III, and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Samuel Alito filed an opinion concurring in part and concurring in the judgment.

As of February 25, 2020, the court had issued decisions in eight cases this term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging between 70 and 90 cases per year.

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Nine candidates running in California’s 50th Congressional District top-two primary

Nine candidates are running in the primary election for California’s 50th Congressional District in the U.S. House on March 3, 2020.

Duncan Hunter (R), who had represented the district since 2013, resigned Jan. 13, 2020, after pleading guilty to misusing campaign funds.

The top two finishers in the primary will advance to the Nov. 3, 2020, general election. One Democrat and one Republican have advanced from the primary in every election since the state began using top-two primaries in 2012.

Media coverage and endorsements have focused on three Republicans and one Democrat: Ammar Campa-Najjar (D), Carl DeMaio (R), Darrell Issa (R), and Brian Jones (R).

San Diego County Supervisor Jim Desmond and Former San Diego Mayor Roger Hedgecock have endorsed DeMaio. U.S. House Minority Leader Kevin McCarthy (R) and Rep. Steve Scalise (R) endorsed Issa, who retired from representing the 49th Congressional District in 2019. The California Republican Assembly, the San Diego Police Officers Association, and the Peace Officers Research Association of California endorsed Jones.

Campa-Najjar advanced to the general election in 2018 and lost to Hunter 52% to 48%. He was endorsed by Reps. Susan Davis (D), Eric Swalwell (D), and Adam Schiff (D).

Also running in the primary are Jose Cortes (Peace and Freedom Party of California), Helen Horvath (I), Lucinda Jahn (I), Henry Ota (I), and Nathan Wilkins (R). Marisa Calderon (D) suspended her campaign on Jan. 31, 2020, but her name will still appear on the ballot.

The Cook Partisan Voter Index for this district was R+11, meaning that in the previous two presidential elections, this district’s results were 11 percentage points more Republican than the national average. Race raters have given Republicans an edge in the general election. All three major race rating outlets view the general as Safe/Solid Republican.

California’s 50th Congressional District is located in the southern portion of the state and includes much of San Diego County and portions of Riverside County.

Click here to learn more.



Previewing the Democratic primary for Texas’ 28th Congressional District

The March 3 Democratic primary in Texas’ 28th Congressional District features incumbent Henry Cuellar, who describes himself as a moderate-centrist, against self-described progressive challenger Jessica Cisneros.

Cuellar was first elected in 2004 and has been endorsed by Speaker Nancy Pelosi, Democratic Congressional Campaign Committee Chairwoman Cheri Bustos, and others. He has received satellite spending support from the U.S. Chamber of Commerce and LIBRE Initiative Action. He has called Cisnernos an outsider backed by special interests who does not understand the desires of the district’s constituency.

Cisneros, a 26-year-old immigration lawyer, is backed by several members of the party’s progressive wing, including Sens. Bernie Sanders and Elizabeth Warren, and Reps. Ocasio-Cortez, Ayanna Pressley, and Pramila Jayapal. She says Cuellar has voted with President Donald Trump 70% of the time. Her campaign material has called Cuellar “Trump’s favorite Democrat.”

According to FEC reports ending on February 12, 2020, Cuellar has outraised Cisneros $1.8 million to $1.3 million. Cuellar has more than doubled Cisneros’ spending, $2.3 million to $1 million.

The winner of the primary will face Sandra Whitten (R) and Bekah Congdon (L) in the general election. The 28th District has a Partisan Voter Index score of D+9, meaning this district’s results were 9 percentage points more Democratic than the national average in the 2012 and 2016 presidential elections. All three major race rating outlets rate the race as solid Democratic.

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With three presidential nominating contests behind us, where does the Democratic race for delegates stand?

Bernie Sanders leads the Democratic delegate race with an estimated 45 pledged delegates. Pete Buttigieg is in second with an estimated 25 delegates, followed by Joe Biden with 15 delegates, Elizabeth Warren with eight, and Amy Klobuchar with seven. These estimated totals reflect projections as of February 25, 2020, following the Nevada caucuses.

To win the nomination, a candidate needs the support of at least 1,991 pledged delegates on the first ballot at the Democratic National Convention, scheduled for July 13-16 in Milwaukee, Wisconsin.

There will be 4,750 delegates in attendance: 3,979 pledged delegates and 771 automatic delegates (often referred to as super-delegates). Automatic delegates will not be permitted to vote on the first ballot.

If no candidate wins a majority of pledged delegates on the first ballot, a second vote will take place. At this point, automatic delegates will be able to vote. A candidate must then win a majority all delegates in order to win the nomination. Because some automatic delegates can cast only half-votes, which are not rounded up, the majority figure required for the second and any subsequent ballots is 2,375.5.

Pledged delegates are allocated proportionally based on the outcome of each state’s nominating contest. A candidate is typically only eligible to receive a share of the pledged delegates at stake if he or she wins at least 15% of votes cast in a primary or caucus. Party rules require that pledged delegates “shall in all good conscience reflect the sentiments of those who elected them.” Pledged delegates are selected in several ways: direct election in primaries or caucuses, local or district party conventions, and state party conventions.

Automatic delegates are not obligated to pledge their support to any candidate. Automatic delegates include Democratic members of Congress, governors, and other party leaders, including former presidents and vice-presidents.

In the three states that have conducted nominating contests so far, 101 total pledged delegates have been at stake, or 2.5% of all pledged delegates.

In the South Carolina primary on Feb. 29, 54 pledged delegates will be at stake, bringing the cumulative total to 155 (3.9%). On March 3, or Super Tuesday, 14 states and one territory will conduct nominating contests to allocate 1,344 pledged delegates. That will bring the cumulative total to 1,499 (37.7%). By month’s end, 2,603 delegates will have been allocated, 65.4% of the cumulative total.

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U.S. Supreme Court releases April argument calendar

The U.S. Supreme Court has released its April argument calendar for the 2019-2020 term. The court will hear eight hours of oral argument in 11 cases between April 20 and April 29. The cases are as follows:

April 20, 2020

  • City of Chicago, Illinois v. Fulton

April 21, 2020

  • McGirt v. Oklahoma
  • Texas v. New Mexico

April 22, 2020

  • Barr v. American Association of Political Consultants Inc.

April 27, 2020

  • Ford Motor Company v. Montana Eighth Judicial District Court (consolidated with Ford Motor Company v. Bandemer)
  • Rutledge v. Pharmaceutical Care Management Association

April 28, 2020

  • Chiafalo v. Washington (consolidated with Colorado Department of State v. Baca)

April 29, 2020

  • Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (consolidated with Trump v. Pennsylvania)

As of February 2020, the court had agreed to hear 74 cases and had issued decisions in four cases during its 2019-2020 term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging between 70 and 90 cases per year.

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