CategoryFederal

U.S. Supreme Court lifts injunction, lets Trump administration enforce new asylum rule

 
On September 11, the U.S. Supreme Court granted the Trump administration’s request to lift an injunction that was blocking the enforcement of a new rule dealing with asylum seekers. The court’s order allows the rule to go into effect while legal challenges against it come before the 9th Circuit Court of Appeals and, potentially, the U.S. Supreme Court.
 
Justice Sotomayor, joined by Justice Ginsburg, wrote a four-page dissent from the U.S. Supreme Court’s decision. The rule in question allows federal agencies to deny asylum applications made by those who traveled through a third country before arriving at the U.S. border after failing to apply for asylum in that third country first. Among the reasons Sotomayor would have left the injunction in place, she argued that the rule violated administrative procedures that give the public time to comment on proposed rules before they take effect. She also suggested that agency explanations of the rule might fail the arbitrary-or-capricious test, which requires courts to invalidate rules that are arbitrary, capricious, an abuse of discretion, or contrary to law.
 
In the government’s request for a stay from the Supreme Court, U.S. Solicitor General Noel Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the Administrative Procedure Act (APA). The agencies that issued the asylum rule argued that immigration enforcement challenges on the southern border allowed them to issue the rule under the APA’s good cause exception to notice-and-comment procedures. The good cause exception allows agencies to issue rules without waiting for public comment if those procedures would be “impracticable, unnecessary, or contrary to the public interest.”
 
On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California had restored the nationwide injunction against the asylum rule. He had originally issued a nationwide injunction against the rule in July, but the 9th Circuit Court of Appeals narrowed its scope to only those states within the 9th Circuit in an August ruling.
 
Judge Tigar argued that he had to block the asylum rule nationwide. He said organizations that help asylum seekers with offices in several states would otherwise have to spend money and time figuring out whether a particular applicant was covered by a narrower injunction.
 


Federal Register weekly update; lowest weekly document total since May

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.
 
During the week of September 2 to September 6, the number of pages in the Federal Register increased by 1,242 pages, bringing the year-to-date total to 47,114 pages. The week’s Federal Register featured a total of 453 documents, including 367 notices, five presidential documents, 30 proposed rules, and 51 final rules.
 
Two proposed rules and one final rule were deemed significant under E.O. 12866—meaning that they may 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.
 
During the same week in 2018, the number of pages in the Federal Register increased by 729 pages for a year-to-date total of 45,543 pages. As of September 6, the 2019 total led the 2018 total by 1,571 pages.
 
The Trump administration has added an average of 1,309 pages to the Federal Register each week in 2019 as of September 6. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
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 yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Federal Judge restores nationwide injunction against Trump administration asylum rule

On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California restored the nationwide scope of an injunction against a Trump administration asylum rule. He had originally issued a nationwide injunction against the rule in July, but the 9th Circuit Court of Appeals narrowed its scope to only those states within the 9th Circuit in an August ruling. The injunction prevents the Trump administration from enforcing the asylum rule until the courts resolve the legal challenges brought against it.
 
The rule, issued by the U.S. Department of Justice, U.S. Citizenship and Immigration Services, and the U.S. Department of Homeland Security on July 16, aims to deny asylum to people who travel through another country and fail to file for asylum there before applying in the United States.
 
Judge Tigar argued that he had to block the asylum rule nationwide. He said organizations that help asylum seekers with offices in several states would otherwise have to spend money and time figuring out whether a particular applicant was covered by a narrower injunction. He also argued that the rule failed the arbitrary-or-capricious test outlined by the Administrative Procedure Act (APA).
 
On August 26, U.S. Solicitor General Noel Francisco asked the U.S. Supreme Court to allow the Trump administration to go ahead with enforcement of the rule while the challenge works its way through the court system. In the government’s request for a stay from the Supreme Court, Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the APA. The agencies that issued the asylum rule argued that immigration enforcement challenges on the southern border allowed them to issue the rule under the APA’s good cause exception to notice-and-comment procedures. The good cause exception allows agencies to issue rules without waiting for public comment if those procedures would be “impracticable, unnecessary, or contrary to the public interest.”
 
As of September 6, the Trump administration’s request to remove or narrow the injunction against the asylum rule was still pending before the U.S. Supreme Court.
 


Letter reveals Democrats’ plan to repeal Trump administration healthcare guidance

Senate Democrats plan to use the Congressional Review Act (CRA) this fall to reverse a guidance document that gave states more flexibility when applying for waivers from Obamacare requirements. The plan was included in a letter written by Senate Minority Leader Chuck Schumer (D.-N.Y.) outlining fall priorities for the Democratic Party, according to Politico on September 5. Schumer wrote that the guidance document allows states to offer health insurance plans that do not include protections for patients with pre-existing conditions.
 
U.S. Senator Mark Warner (D-VA) introduced a CRA resolution that would repeal the guidance document on July 31, 2019. The Centers for Medicare & Medicaid Services (CMS), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury issued the guidance on October 24, 2018. The guidance aims to allow states to innovate within their individual health insurance markets.
 
The resolution has attracted 44 Democratic cosponsors and the two independent U.S. senators. Under the CRA, the resolution would need to pass both houses of Congress and receive President Trump’s signature to repeal the guidance.
 
On July 15, 2019, the Government Accountability Office concluded that the guidance document was a rule according to the Congressional Review Act (CRA). The CRA gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, 17 out of the over 90,767 rules published in the Federal Register during that time have been repealed using the CRA. 13 additional attempts either failed to pass through Congress or received vetoes.
 
Guidance is a term in administrative law used to describe documents created by administrative agencies to explain rules, laws, and procedures. Guidance documents affect how agencies administer regulations and programs. However, they are not supposed to be legally binding in the same way as rules issued through the rulemaking processes of the Administrative Procedure Act. Congress used the CRA to repeal a guidance document for the first time on May 21, 2018.
 


Department of Energy withdraws rules that would have expanded energy-efficient lightbulb requirements

The U.S. Department of Energy (DOE) published a final rule on September 5 that withdraws rules made during the Obama administration that apply higher energy-efficiency requirements to some specialty lightbulbs. The department also published a separate proposed rule saying that current energy-efficiency standards do not need to change.

This means that certain types of lightbulbs—rough service lamps, vibration service lamps, 3-way incandescent lamps, high lumen lamps, and shatter-resistant lamps—will no longer be required to meet higher energy-efficiency requirements. Those bulbs—which are often used in chandeliers, bathroom fixtures, and commercial applications—would have fallen under those requirements starting in January 2020. Had the prior rule gone into effect, consumers would have seen different light bulbs for sale in stores starting in 2020. The DOE’s new rules will maintain the existing definition of general service lamps.

The Energy Policy and Conservation Act of 1975 (EPCA) gave the DOE the responsibility to manage an energy conservation program for consumer products, including lightbulbs. Under the program, consumers are not allowed to purchase lightbulbs that fall within the definition of general service lamps (GSLs) that don’t meet energy-efficiency standards.

The law defined GSLs to include general service incandescent lamps (GSILs), compact fluorescent lamps (CFLs), general service light-emitting diode (LED) lamps, organic light-emitting diode (OLED) lamps, and other lamps that the Secretary of Energy determines are used similarly to traditional incandescent light bulbs.

Following amendments made to the EPCA in 2007, the DOE has been deciding whether to change the energy conservation standards for GSLs and whether to add particular kinds of lightbulbs to the definition of GSLs. The new DOE rules maintain the energy conservation standards for GSLs as well as the types of lightbulbs to which it applies.

During the Obama administration, the DOE issued two rules that expanded the definition of GSLs to lightbulbs that had been exempt from some energy-efficiency rules. Those rules were published in the Federal Register but had not gone into effect. In issuing its rule, the DOE said the revised definitions of general service lamps “included certain GSILs as GSLs in a manner that is not consistent with the best reading of the statute.” The DOE scheduled the withdrawal of the previous rules effective October 7.



Dan Bishop (R) wins NC-09 special election

 
State Sen. Dan Bishop (R) defeated Dan McCready (D), Jeff Scott (L), and Allen Smith (G) in North Carolina’s 9th Congressional District special election on September 10, 2019. Bishop received 50.8% of the vote to McCready’s 48.6% with 99% of precincts reporting, in addition to early voting results. The state board of elections called the special election following allegations of absentee ballot fraud in the 2018 race.
 
As of September 6, the special election had seen more than $10.7 million in satellite spending, the second-highest total for a U.S. House special election (Georgia’s 6th Congressional District special election in 2017 saw $27 million spent by satellite groups). McCready’s campaign raised $5 million to Bishop’s $2 million through August 21.
 
Throughout the race, Bishop highlighted his support for President Donald Trump (R), who endorsed and campaigned for Bishop, and sought to connect McCready to Democrats in Congress such as Ilhan Omar and Alexandria Ocasio-Cortez, who Bishop called radical socialists. Bishop described himself as a “pro-life, pro-gun, pro-wall” conservative.
 
McCready emphasized his plan to lower prescription drug prices and criticized Bishop’s voting record on the issue. McCready said he would “always put country over party” and pursue bipartisan legislation on healthcare, taxes, and education. He was endorsed by former Vice President Joe Biden (D).
 
Trump won the 9th District by 12 percentage points in 2016. In the uncertified results of the 2018 House race, Republican candidate Mark Harris led McCready by 905 votes.


Murphy defeats Thomas in NC-03 special election

 
State Rep. Greg Murphy (R) defeated Allen Thomas (D), Tim Harris (L), and Greg Holt (Constitution Party) in the special election for North Carolina’s 3rd Congressional District seat in the U.S. House of Representatives on September 10, 2019. Murphy received 60.6% of the vote to Thomas’ 38.6% with 82% of precincts reporting, in addition to early voting results.
 
The special election was called after former incumbent Rep. Walter Jones (R) died on February 10, 2019.
 
Murphy campaigned on his support of President Trump and highlighted his work as a physician and state legislator. Thomas emphasized economic development, small-town revitalization, and improving access to healthcare in his campaign.
 
According to campaign finance reports through August 21, Murphy raised $902,000 and spent $803,000, and Thomas raised $565,000 and spent $476,000. In the 2016 presidential election, Trump won the district with 61% of the vote.


Biden and Warren will share debate stage for the first time Sept. 12

Ten candidates will meet on stage for the third Democratic presidential primary debate in Houston, Texas, on Sept. 12, 2019.
 
The following candidates will participate:
 
• Joe Biden
• Cory Booker
• Pete Buttigieg
• Julián Castro
• Kamala Harris
• Amy Klobuchar
• Beto O’Rourke
• Bernie Sanders
• Elizabeth Warren
• Andrew Yang
 
ABC News and Univision are hosting the debate, which will take place at Texas Southern University. Linsey Davis, David Muir, Jorge Ramos, and George Stephanopoulos will moderate the event. Candidates will have one minute and 15 seconds to answer questions and 45 seconds for rebuttals.
 
The 10 Democratic candidates who did not qualify will have another shot at the fall debates with the same qualifying criteria next month.
 
Tulsi Gabbard, Tom Steyer, and Marianne Williamson are the closest to qualifying, having already passed the fundraising threshold of 130,000 unique donors. Steyer needs one more eligible poll showing 2 percent support, Gabbard two, and Williamson three.
 
The Democratic National Committee announced this week that the fourth primary debate will take place in Ohio on Oct. 15-16, 2019.


Rep. Susan Davis (D-Calif.) announces 2020 retirement

Rep. Susan Davis (D-Calif.) announced that she would not seek re-election in 2020. She was first elected to represent California’s 53rd Congressional District in 2000, and she won re-election in 2018 by a margin of 38 points. In a statement announcing her retirement, she said she had “a desire to live and work ‘at home’ in San Diego.”
 
As of Thursday, Davis is the fourth Democratic member of the U.S. House to announce they would not be seeking re-election in 2020, joining Jose Serrano (NY-15), Ben Ray Lujan (NM-3), and Dave Loebsack (IA-2). There are also 14 Republican members of the U.S. House to announce 2020 retirements so far.
 
Currently, Democrats hold a 235-197 majority in the U.S. House. There is also one independent member and two vacant seats in the chamber. In November 2020, all 435 seats will be up for election. Ballotpedia has identified 71 U.S. House races as general election battlegrounds. Of the 71 seats, 43 are held by Democrats and 28 are held by Republicans heading into the election.
 
Additional reading:
 


Bill Flores announces 2020 retirement

Rep. Bill Flores (R-Texas) announced that he would not seek re-election in 2020. He was first elected to represent Texas’ 17th Congressional District in 2010, and he won re-election in 2018 by more than 15 points. In a statement announcing his retirement, he cited a desire to spend more time with his family.
 
Flores is the 13th Republican member of the U.S. House and the fifth representative from Texas to announce he would not be seeking re-election in 2020. There are also three Democratic members of the U.S. House to announce 2020 retirements so far.
 
Currently, Democrats hold a 235-197 majority in the U.S. House. There is also one independent member and two vacant seats in the chamber. In November 2020, all 435 seats will be up for election. Ballotpedia has identified 71 U.S. House races as general election battlegrounds. Of the 71 seats, 43 are held by Democrats and 28 are held by Republicans heading into the election.
 
Additional reading: