CategoryFederal

U.S. Supreme Court sets argument dates for three administrative state cases

On November 26, the U.S. Supreme Court released its upcoming argument calendar, which included dates it will hear oral argument in three upcoming cases related to the administrative state.
 
On March 2, 2020, the court will hear Department of Homeland Security v. Thuraissigiam, which involves the question of when asylum seekers may challenge in traditional courts of law the decisions made during administrative agency adjudication hearings.
 
The court will hear two cases on March 3. In Seila Law v. Consumer Financial Protection Bureau, at issue is whether the structure of the Consumer Financial Protection Bureau violates the separation of powers. In Liu v. Securities and Exchange Commission, the court will decide the limits of the Securities and Exchange Commission’s enforcement powers.
 


Justice Kavanaugh open to reviving the nondelegation doctrine

In a statement published with the U.S. Supreme Court’s November 25 orders, Justice Brett Kavanaugh hinted that he would consider reviving the nondelegation doctrine. Suggesting that at least some congressional delegations of power are in his view unconstitutional, Kavanaugh argued that Justice Neil Gorsuch’s analysis of the nondelegation doctrine in Gundy v. United States (2019) “may warrant further consideration in future cases.” 
 
The nondelegation doctrine is a legal principle that prohibits legislative bodies from delegating their legislative powers to executive agencies or to private entities. Gorsuch argued in his Gundy dissent that Congress cannot let administrative agencies decide major policy questions.
 
In his statement, Kavanaugh also pointed to a 1980 opinion written by former Chief Justice William Rehnquist, which said that “major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.” Kavanaugh said that the arguments made by Rehnquist and Gorsuch “raised important points that may warrant further consideration in future cases.”
 
Law professor Jonathan Adler, a critic of impermissibly delegated legislative power, responded to Kavanaugh’s statement saying that if Kavanaugh’s message is “not an invitation for litigants to bring additional non-delegation challenges” then he does “not know what is.”
 
Ian Millhiser, a Supreme Court writer for Vox who defends delegation as settled law, suggested that Kavanaugh’s statement is “significant because it shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power.” 
 


SCOTUS adds new case to merits docket

The U.S. Supreme Court added a new case to the merits docket on Friday. As of November 25, 2019, the court had agreed to hear 57 cases during its 2019-2020 term. The Supreme Court began hearing cases for the term on October 7, 2019.
 
The new case—FNU Tanzin v. Tanvir—concerns the Religious Freedom Restoration Act (RFRA) of 1993. It came on a writ of certiorari to the United States Court of Appeals for the 2nd Circuit.
 
Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari, three Muslim men born outside of the U.S. but living lawfully inside the country, were approached by FBI agents and asked to act as informants. Citing their religious beliefs, the three men declined. Tanvir, Algibah, and Shinwari alleged the FBI agents then retaliated against their refusal to act as informants by placing them on the national “No Fly List.” They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA.
 
The U.S. District Court for the Southern District of New York dismissed the claims against the agents in their individual capacity. Tanvir, Algibah, and Shinwari appealed to the U.S. Court of Appeals for the 2nd Circuit, which reversed the lower court’s ruling. FBI Special Agent FNU (First Name Unknown) Tanzin moved for the circuit court to rehear the case en banc, but the circuit court denied the motion. Tanzin then petitioned the U.S. Supreme Court for a hearing.
 
In his petition to the U.S. Supreme Court, Tanzin argued, “The court of appeals’ anomalous ruling clears the way for a slew of future suits against national-security officials, criminal investigators, correctional officers, and countless other federal employees, seeking to hold them personally liable for alleged burdens on any of the myriad religious practices engaged in by the people of our Nation.”
 
The question presented in the case, according to the petition, is “whether the provision in RFRA allowing litigants to ‘obtain appropriate relief against a government,’ 42 U.S.C. 2000bb-1(c), authorizes an award of money damages against federal employees sued in their individual capacities.”
 
The case has not been set for argument before the court.
 


Number of Democrats and Republicans filed for 2020 U.S. House races remains even for the third straight week; no new 2020 retirements

As of November 25, 2019, 1,839 candidates are filed with the FEC to run for U.S. House in 2020. Of those, 1,728—864 Democrats and 864 Republicans—are from one of the two major political parties. In 2018, 3,244 candidates filed with the FEC, including 1,566 Democrats and 1,155 Republicans.
 
295 candidates are filed with the Federal Elections Commission (FEC) to run for U.S. Senate in 2020. Of those, 257—134 Democrats and 123 Republicans—are from one of the two major political parties. In 2018, 527 candidates filed with the FEC to run for U.S. Senate, including 137 Democrats and 240 Republicans.
 
In the past week, no members of Congress announced 2020 retirements. To date, four Senators (three Republicans and one Democrat) and 28 Representatives (20 Republicans and eight Democrats) are not running for re-election. In 2018, 55 total members of Congress—18 Democrats and 37 Republicans—did not seek re-election.
 
On November 3, 2020, 35 Senate seats and all 435 House seats are up for election. Of those Senate seats, 33 are regularly-scheduled elections, while the other two are special elections in Arizona and Georgia. Twelve are Democratic-held seats and 23 are Republican-held seats. In the House, where all the seats are up for election, Democrats currently hold a 233-seat majority.
 
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Pete Buttigieg leads in pageviews for the first time since June, Williamson is seventh Democratic candidate to reach 100,000 pageviews

Each week, we report the number of pageviews received by 2020 presidential campaigns on Ballotpedia. These numbers show which candidates are getting our readers’ attention.
 
Pete Buttigieg’s campaign page on Ballotpedia received 4,382 views for the week of November 17-23. Buttigieg’s pageview figure represents 10.3% of the pageviews for the week. Tulsi Gabbard had 8.4% of the pageviews for the week, followed by Tom Steyer with 7.9%. None of the three were among the top three Democrats for pageviews the week before. This is Buttigieg’s first time leading in pageviews since the week of June 9-15.
 
Every Democratic candidate had at least 19% more pageviews last week than the week before. The three candidates with the largest increases in pageviews were Deval Patrick (293%), Tulsi Gabbard (194%), and Amy Klobuchar (121%).
 
Andrew Yang remains the leader in overall pageviews this year with 144,654. He is followed by Pete Buttigieg with 138,084 and Joe Biden with 129,749. Marianne Williamson had 1,786 pageviews last week, bringing her total for the year to 100,048. Williamson is the seventh Democratic candidate to reach 100,000 pageviews.
 
For more information on pageviews and detailed lifetime stats, click the linke below.


North Carolina court delays U.S. House candidate filing period

On November 20, 2019, a three-judge panel of North Carolina’s state superior court issued an order delaying the congressional candidate filing period for the 2020 election cycle pending finalization of the state’s congressional district plan. The filing period had been set to open on December 2, 2019, and close on December 20, 2019.
 
On September 27, 2019, opponents of North Carolina’s congressional district plan filed suit in state superior court alleging that the district plan enacted by the state legislature in 2016 constituted a partisan gerrymander in violation of state law. The plaintiffs asked that the court bar the state from using the maps in the 2020 election cycle. On October 28, 2019, the court granted this request, enjoining further application of the 2016 maps. In its order, the court wrote, “The loss to Plaintiffs’ fundamental rights guaranteed by the North Carolina Constitution will undoubtedly be irreparable if congressional elections are allowed to proceed under the 2016 congressional districts.”
 
The court did not issue a full decision on the merits, stating that “disruptions to the election process need not occur, nor may an expedited schedule for summary judgment or trial even be needed, should the General Assembly, on its own initiative, act immediately and with all due haste to enact new congressional districts.” The same three-judge panel, comprising Judges Paul C. Ridgeway, Joseph N. Crosswhite, and Alma L. Hinton, struck down the state’s legislative district plan on similar grounds on September 3, 2019.
 
On November 14, 2019, the state House approved a remedial district plan (HB1029) by a vote of 55-46 .The vote split along party lines, with all Republicans voting in favor of the bill and all Democrats voting against it. The state Senate approved the bill on November 15, 2019, by a vote of 24-17, also along party lines. In its November 20 order, the court scheduled a hearing for December 2, 2019, to consider both the plaintiffs’ and defendants’ motions for summary judgment in the case.
 


Senate confirms two federal nominees to 11th Circuit Court of Appeals

The U.S. Senate has confirmed two nominees to the U.S. Court of Appeals for the 11th Circuit. Overall, the Senate has confirmed 164 of President Trump’s Article III judicial nominees—two Supreme Court justices, 48 appellate court judges, 112 district court judges, and two U.S. Court of International Trade judges—since January 2017. At the end of the 115th Congress in January 2019, the Senate had confirmed 85 of the president’s judicial nominees.
 
The confirmed nominees were Robert J. Luck and Barbara Lagoa. Luck received commission the day of his confirmation. When Lagoa receives commission, she will replace Judge Stanley Marcus, who will assume senior status upon Lagoa’s swearing-in. At that time, the court will have no vacancies, seven Republican-appointed judges, and five Democrat-appointed judges.
 
The 11th Circuit is the third appellate court to change from a majority of Democrat-appointed judges to Republican-appointed judges since President Trump took office. The 2nd and 3rd Circuits also changed from majority Democrat- to majority Republican-appointed judges during the Trump administration.
 
There are 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system.
 
Luck and Lagoa were both justices on the Florida Supreme Court. Their federal confirmation leaves two vacant seats on the seven-member state supreme court. In Florida, a judicial nominating commission screens potential supreme court candidates and submits a list of nominees to the governor. This will be Governor Ron DeSantis’ (R) fourth and fifth appointments to the court. Newly appointed judges serve for at least one year, after which they appear in a yes-no retention election held during the next general election. If retained, judges serve six-year terms.
 


Nardini receives commission for federal court of appeals

On November 14, 2019, Judge William Nardini received commission for the United States Court of Appeals for the 2nd Circuit.
 
Nardini was nominated to the court by President Donald Trump (R) on September 19, 2019, to succeed Judge Christopher Droney, who assumed senior status on June 30, 2019. Nardini was confirmed by the U.S. Senate on November 7, 2019, by a vote of 86-2.
 
Following nomination by the president, a federal judge 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 show their approval or disapproval of the nominee.
 
After the hearing, the committee votes to approve or return the nominee. If approved, the full Senate votes on the nominee. 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 United States Court of Appeals for the 2nd Circuit has 13 active Article III judges, including Nardini. The remaining 12 current active judges are:
 
  • Chief judge Robert Katzmann – nominated by President Bill Clinton (D)
  • Jose Cabranes – nominated by President Bill Clinton (D)
  • Rosemary Pooler – nominated by President Bill Clinton (D)
  • Raymond Lohier – nominated by President Barack Obama (D)
  • Debra Livingston – nominated by President George W. Bush (R)
  • Peter Hall – nominated by President George W. Bush (R)
  • Susan L. Carney – nominated by President Barack Obama (D)
  • Denny Chin – nominated by President Barack Obama (D)
  • Richard Sullivan – nominated by President Donald Trump (R)
  • Joseph Bianco – nominated by President Donald Trump (R)
  • Michael H. Park – nominated by President Donald Trump (R)
  • Steven Menashi – nominated by President Donald Trump (R)
 
The court’s 14 judges on senior status are:
  • Dennis Jacobs – nominated by President George H.W. Bush (R)
  • Jon Newman – nominated by President Jimmy Carter (D)
  • Ralph Winter – nominated by President Ronald Reagan (R)
  • Amalya Kearse – nominated by President Jimmy Carter (D)
  • Pierre Leval – nominated by President Bill Clinton (D)
  • John Walker – nominated by President George H.W. Bush (R)
  • Chester Straub – nominated by President Bill Clinton (D)
  • Guido Calabresi – nominated by President Bill Clinton (D)
  • Robert Sack – nominated by President Bill Clinton (D)
  • Barrington Parker – nominated by President George W. Bush (R)
  • Christopher Droney – nominated by President Barack Obama (D)
  • Richard Wesley – nominated by President George W. Bush (R)
  • Gerard Lynch – nominated by President Barack Obama (D)
  • Reena Raggi – nominated by President George W. Bush (R)
 
The United States Court of Appeals for the 2nd Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system. Appeals are heard in the Thurgood Marshall Federal Courthouse in New York City.
 


171 noteworthy endorsements issued in the Democratic presidential primary

The 17 candidates seeking the Democratic nomination for president have received a combined 171 noteworthy endorsements, according to review of a list of endorsements compiled by FiveThirtyEight through Nov. 20.
 
Noteworthy endorsers include current and former presidents and vice presidents, current and former party leaders, governors and other state executives, members of Congress, mayors of large cities, state legislative majority and minority leaders, and Democratic National Committee members.
 
Joe Biden (D) leads with 40 noteworthy endorsements, followed by Kamala Harris (D) with 33 and Bernie Sanders (I) with 23. Six noteworthy candidates (Tulsi Gabbard, Deval Patrick, Joe Sestak, Tom Steyer, Marianne Williamson, and Andrew Yang) have not received any noteworthy endorsements.
 
Out of 23 Democratic governors nationwide, six have endorsed a presidential candidate and one (Steve Bullock of Montana) is running for president. Joe Biden, Cory Booker, Kamala Harris, and Amy Klobuchar have each been endorsed by their home state’s governors. Biden was also endorsed by Govs. Ned Lamont (D-Conn.) and Andrew Cuomo (D-N.Y.)
 
Of the 47 members of the U.S. Senate Democratic caucus, 10 have endorsed a presidential candidate and six are running for president. Five senators have endorsed Joe Biden, more than any other candidate. Cory Booker, Amy Klobuchar, Bernie Sanders, and Elizabeth Warren were each endorsed by their fellow home-state senator. Kamala Harris’ fellow California senator Dianne Feinstein endorsed Joe Biden, while Michael Bennet’s colleague Cory Gardner is a Republican.
 
Out of the 233 Democratic members of the U.S. House, 69 have endorsed a presidential candidate and one (Tulsi Gabbard) is running for president. Joe Biden has the most U.S. House endorsements with 19, followed by Kamala Harris with 15 and Cory Booker with 11.
 
Three candidates have noteworthy endorsements from an early voting state. Iowa Attorney General Tom Miller and Democratic National Committee member Jan Bauer endorsed Steve Bullock. Julián Castro was endorsed by Nevada Democratic National Committee member Allison Stephens. Elizabeth Warren was endorsed by Nevada state Controller Catherine Byrne, Nevada Democratic National Committee member Alex Goff, and Iowa state Treasurer Michael Fitzgerald.
 
 


U.S. Supreme Court hears oral argument in immigration case that could limit executive branch powers

On November 12, the U.S. Supreme Court heard oral argument in the case Department of Homeland Security v. Regents of the University of California. In this case, the court will decide whether the U.S. Department of Homeland Security (DHS) lawfully ended the Deferred Action for Childhood Arrivals (DACA) program. The DACA program protected certain individuals residing in the United States without legal permission from deportation and allowed them to go to school and work.
 
DHS argues that it had the authority to end DACA and that the Obama administration violated Administrative Procedure Act (APA) procedures and U.S. immigration laws in creating the program. Those who oppose how DHS ended DACA argue that the agency did not follow proper APA procedures and violated the rights of DACA beneficiaries.
 
The U.S. Supreme Court will likely announce a decision in the case next summer.