U.S. Supreme Court allows DHS to enforce public charge rule

The U.S. Supreme Court on January 27 voted 5-4 to allow the U.S. Department of Homeland Security (DHS) to begin enforcing a rule that authorizes the federal government to deny immigrants a visa or a green card if they rely on government assistance.

DHS issued the final rule detailing how federal agencies determine the inadmissibility of immigrants likely to become public charges (e.g. dependent on government assistance) in August 2019. Five federal judges later issued injunctions blocking the rule from taking effect. Appellate courts lifted three of the injunctions in December 2019, but a nationwide injunction from the U.S. District Court for the Southern District of New York and a statewide injunction from the U.S. District Court for the Northern District of Illinois remained in effect.

DHS requested that the U.S. Supreme Court stay the nationwide injunction issued by Judge George B. Daniels of the Southern District of New York. In his October 2019 order, Daniels held that the plaintiffs in State of New York et al. v. U.S. Department of Homeland Security et al. would likely prevail in their claim that DHS promulgated the rule in violation of the Administrative Procedure Act (APA) and that they would suffer irreparable harm under the new policy.

The U.S. Supreme Court granted the request for a stay. Justices John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh ruled in favor of the stay while Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. In a concurring opinion filed with the order, Gorsuch urged lower courts to curtail the practice of issuing nationwide injunctions, arguing in part that the broad orders impact individuals who are not parties to the cases at hand.

The decision allows the rule to take effect nationwide pending a final decision in State of New York et al. v. U.S. Department of Homeland Security et al. The statewide injunction blocking the rule in Illinois remained in effect as of January 29.

Click here to learn more about the Administrative Procedure Act.
Click here to learn more about administrative state rulemaking.

Additional reading:
George Daniels
United States District Court for the Southern District of New York
Department of Homeland Security
Final rule

Link here to view the public charge final rule.

Link here to view the October 2019 injunction.

Link here to view the U.S. Supreme Court order.

California will hold two primaries for the same congressional seat on March 3

Two top-two primaries will take place on Mar. 3, 2020, in elections to represent California’s 25th Congressional District. The seat is currently vacant following the resignation of Katie Hill (D) on Nov. 1, 2019.

The top two finishers in the primary for the regularly scheduled House election will advance to the Nov. 3, 2020, general election. The top two finishers in the primary for the special election that was scheduled as a result of Hill’s resignation will advance to the May 12, 2020, election to complete Hill’s term.

Eleven candidates are running in both primaries, so it will be possible for voters to vote for the same candidate twice.

Media coverage and endorsements in both races have focused on four candidates: Raytheon executive and former Navy pilot Mike Garcia (R), former Congressman Stephen Knight (R), California State Assemblywoman Christy Smith (D), and The Young Turks founder Cenk Uygur (D). All four are running in both primaries on Mar. 3.

The other candidates in both primaries are Robert Cooper (D), Getro Elize (D), Kenneth Jenks (R), David Lozano (R), Daniel Mercuri (R), David Rudnick (D), and Anibal Valdez-Ortega (D). Otis Lee Cooper (I) and George Papadopoulos (R) are only running in the regular primary, while Courtney Lackey (R) is only running in the special primary.

On the Democratic side, Smith was endorsed by Sen. Dianne Feinstein, Sen. Kamala Harris, U.S. House Speaker Nancy Pelosi, and the California Democratic Party. Uygur says his campaign is not accepting endorsements and has rejected PAC donations. He has criticized Smith for accepting money from several private industries. In response, Smith said, “I am determined to fight within the system as it is set up to make sure that we hold this seat.” On the issue of healthcare, Smith has said she would “work with both parties to make healthcare affordable, protect people with pre-existing conditions, and lower drug costs.” On the issue of healthcare, Uygur has said, “I’m the only candidate in this race who is in favor of Medicare for All.”

On the Republican side, Garcia was endorsed by the Los Angeles Republican Party. Knight was endorsed by U.S. House Minority Leader Kevin McCarthy. Garcia has focused his messaging around issues regarding service members, stating he would “make it a priority to ensure our men and women in uniform have the funding and tools necessary to keep America safe.” He also says he supports congressional term limits. Knight has highlighted his previous experience representing California’s 25th District from 2015 to 2019. According to his campaign website, “As a Congressman, Knight quickly became known as a fierce advocate for fiscal responsibility, job creation and public safety in our nation’s Capitol.”

In the 2018 general election, Hill (D) defeated Knight (R) 54% to 46%. In 2016, Knight defeated Bryan Caforio (D) 53% to 47%. The 2017 Cook Partisan Voter Index for this district was EVEN, meaning that in the previous two presidential elections, this district’s results were within one percentage point of the national average. Race raters have given Democrats a slight edge in the race. Of the three major race rating outlets, one rates the race as Lean Democratic, one rates it as Likely Democratic, and one rates it as Solid Democratic.

Eight special elections have been called during the 116th Congress.

Click here to learn more about California’s 25th Congressional District election, and click here to learn more about California’s 25th Congressional District special election.

Additional reading:

Bernie Sanders leads Democratic pageviews for third week as all Democratic pageviews decline

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 2,795 times, equaling 14.8% of pageviews for all Democratic campaigns this week. He was followed by Joe Biden with 12.4% of pageviews and Michael Bloomberg with 12.3%.

All Democratic candidates received fewer pageviews this week relative to last week. The candidate with the smallest decrease from last week was Bloomberg. His campaign page decreased in pageviews by 0.1 percent. Tom Steyer saw the largest decrease in pageviews relative to last week among Democratic candidates with 40.2 percent.

The top three Democratic presidential candidates in lifetime pageviews are Andrew Yang with 164,835, Pete Buttigieg with 154,741, and Biden with 148,696.

As in previous weeks, every other Republican candidate led Donald Trump in pageviews. Trump received 2,042 pageviews, while Joe Walsh received 4,128, Roque de la Fuente received 4,021, and Bill Weld received 2,042.

Click here to read more.

2,388 major party candidates filed for 2020 races, no new congressional retirements

As of January 27, 2020, 2,388 major party candidates have filed to run for the U.S. Senate and House of Representatives in 2020.

So far, 338 candidates are filed with the Federal Elections Commission (FEC) to run for U.S. Senate. Of those, there are 152 Democrats and 135 Republicans. In 2018, 527 candidates filed with the FEC to run for U.S. Senate, including 137 Democrats and 240 Republicans.

For U.S. House, 2,292 candidates are filed with the FEC to run in 2020. Of those, there are 1,013 Democrats and 1,088 Republicans. In 2018, 3,244 candidates filed with the FEC, including 1,566 Democrats and 1,155 Republicans.

No new congressional retirements were announced last week. Four senators (three Republicans and one Democrat) and 35 representatives (26 Republicans and nine Democrats) are not running for re-election. A special election won’t be held to fill the seat vacated by Republican Duncan Hunter (CA-50) on January 13, bringing the total of open-seat House elections in 2020 to 36.

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 seats are up for election, Democrats currently hold a majority with 232 seats.

Additional Reading:

ACUS lists information federal agencies must publish online

Photo Credit: William Iven

The Administrative Conference of the United States (ACUS) published a fact sheet on January 16 that identifies the materials federal agencies must include on their websites. The fact sheet cites several sections of the United States Code that require federal agencies to share certain documents online.

The fact sheet includes the following selected document types:
• Strategic plans
• Plain writing policy and reports
• How and where to obtain information and submit requests
• Rules of procedure
• Substantive rules of general applicability
• Statements of general policy
• Policy statements and interpretations not published in the _Federal Register_
• Adjudication opinions and orders
• Commonly requested Freedom of Information Act (FOIA) releases
• Whistleblower protections
• Inspector General reports and audits
• Statistical agency standards and policies

In addition to the specific information agencies must share, other laws and regulations require agencies to maintain certain pages on their websites. For instance, agencies must provide a link to the relevant Office of the Inspector General website, maintain an open government page, host a database of guidance documents, and provide an electronic reading room to publish FOIA materials.

ACUS is an independent federal agency that aims to develop recommendations to improve federal administrative processes. ACUS forms recommendations based on research and advice from government officials and nonpartisan individuals whom the agency considers to be experts in the private sector or academia. ACUS recommendations focus on organizational and procedural administrative reforms rather than substantive policy issues.

To learn more about the ACUS or independent agencies, see here:
Administrative Conference of the United States
Independent federal agency

Click here to read the ACUS fact sheet

Additional reading:
Federal Register
Freedom of Information Act
Guidance (administrative state)
United States Code 
Adjudication (administrative state) 

Washington Supreme Court Justice Wiggins to retire, governor to select replacement

Justice Charles Wiggins
Photo credit: Charles Wiggins

Washington Supreme Court Justice Charles K. Wiggins is retiring at the end of March 2020. In a prepared statement, Wiggins said he wished to spend more time with his wife, Nancy, and his family.

Wiggins was elected to the state supreme court in 2010 and re-elected in 2016. He was previously a Division 2 judge of the Washington Court of Appeals and served as a pro tem judge in the Jefferson County and King County superior courts and as a pro tem district court judge in Kitsap County. He also worked in private practice. Wiggins earned his undergraduate degree from Princeton University, where he graduated magna cum laude. He served in the Army Military Intelligence Corps for four years after graduating from Princeton. During that time, he obtained his master’s degree in business administration from the University of Hawaii. He then obtained his J.D. from Duke Law School in 1976.

In the event of a midterm vacancy, selection of state supreme court justices in Washington occurs through gubernatorial appointment. Wiggins’ replacement will be Governor Jay Inslee’s (D) third nominee to the nine-member court. Newly appointed justices serve until the next general election, at which point they may run to serve for the remainder of the predecessor’s term. Wiggins’ seat will appear on the ballot in a nonpartisan election on November 3, 2020. Candidates will run to finish the last two years of his term, set to expire on January 8, 2023.

The nine justices of the supreme court compete in contested elections without reference to party affiliation and must run for re-election when their terms expire. Supreme court justices serve for six years.

The Washington State Supreme Court is the state’s court of last resort. It currently includes the following justices:

• Charles Johnson – Elected in 1990
• Barbara Madsen – Elected in 1992
• Susan Owens – Elected in 2000
• Charlie Wiggins – Elected in 2010
• Sheryl Gordon McCloud – Elected in 2012
• Steven Gonzalez – Appointed by Gov. Christine Gregoire (D)
• Debra Stephens – Appointed by Gov. Gregoire
• Raquel Montoya-Lewis – Appointed by Gov. Jay Inslee (D)
• Mary Yu – Appointed by Gov. Inslee

In 2020, there have been six supreme court vacancies in five of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. Three vacancies are in states where a Democratic governor appoints the replacement. The other three are in states where a Republican governor appoints the replacement.

Click here to learn more

Additional reading:
State supreme court vacancies, 2020
Washington State Supreme Court
Charlie Wiggins
Judicial selection in Washington

Univ. of Washington employee sues SEIU over membership opt-out provisions

On Jan. 20, an employee of the University of Washington filed a class-action lawsuit in U.S. District Court, alleging that her union, Service Employees International Union (SEIU) 925, had unconstitutionally barred her and other employees from opting out of union membership.

Who are the parties to the suit? The lead plaintiff is Charlene Wagner, a fiscal specialist for the state university system. She is represented by the Freedom Foundation, a nonprofit think tank and litigation firm whose self-described mission is “to advance individual liberty, free enterprise, and limited, accountable government.” The Freedom Foundation is currently involved in approximately 60 lawsuits concerning public-sector union practices in the aftermath of Janus v. AFSCME. The main defendant is Service Employees International Union (SEIU) 925, which represents about 17,000 education workers in Washington, making it one of the largest public-sector unions in the state. The University of Washington is also named as a defendant.

What is at issue? In October 2018, Wagner sought to opt-out of union membership and cancel her dues deduction authorization. SEIU 925 informed her that the membership agreement she had signed limited opt-outs to an annual two-week period (in this case, from April 29, 2019, to May 14, 2019).

Wagner and her attorneys argue that “dues are being seized under an unconstitutional [state] law that gives the union sole discretion over who the university – a state actor – is and isn’t authorized to deduct dues from.” They also allege that “a union cannot impose an irrevocability provision, containing a narrow opt-out window, on union nonmembers without a knowing First Amendment waiver.”

What are the reactions? In a press release, Freedom Foundation Senior Litigation Counsel James Abernathy said, “The whole point of Janus is to protect the First Amendment rights of public employees to not support a labor union. State laws that try to limit those rights are unconstitutional regardless of whether they were passed before or after Janus. … We shouldn’t have to keep relitigating the same issues, but SEIU 925 apparently believes it can disregard laws it doesn’t like.”

As of Jan. 24, neither SEIU 925 nor the University of Washington have commented publicly on the suit.

What comes next? The suit was filed in the U.S. District Court for the Western District of Washington. It has been assigned to Judge Barbara Rothstein. Rothstein was first appointed to the federal bench by President Jimmy Carter (D). The case name and number are Wagner v. University of Washington (2:20-cv-00091).

Click here to learn more.

Additional reading:
Janus v. AFSCME
Public sector union policy in the United States, 2018-present

10th Circuit hears oral argument in case challenging ATF bump stock ban

The United States Court of Appeals for the 10th Circuit on January 22 heard oral argument in Aposhian v. Barr, a case claiming that the U.S. Department of Justice (DOJ) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) violated Article I of the U.S. Constitution when they issued a 2018 rule redefining bump stocks as “machineguns.” By issuing a rule that rewrote federal statute, the plaintiffs argued, the department created a new criminal prohibition beyond the scope of its delegated authority.

DOJ and ATF issued the rule in response to a February 2018 presidential memorandum—an official document that allows the president to manage the federal government—signed by President Donald Trump (R). The memorandum directed the U.S. attorney general to propose a rule banning all devices that turn legal weapons into machineguns.

The New Civil Liberties Alliance (NCLA), a pro bono law firm with a focus on the administrative state, argued that the department lacked the authority to issue the rule because Congress had not delegated power to the attorney general to interpret the scope of the criminal prohibition on machinegun possession. NCLA further contended that the law defining machineguns is unambiguous and, therefore, not open to a new agency interpretation. Since Article I of the U.S. Constitution grants all legislative powers to Congress, argued NCLA, Congress itself must act to change the definition of machineguns to include bump stocks.

Delegate, in this context, means to entrust or hand over authority to another branch of government. Congress sometimes delegates questions requiring subject-matter expertise to agency administrators in order to implement the law. While some scholars support delegation, others argue that legislative authority is vested in Congress alone and cannot be delegated to other branches—a principle known as the nondelegation doctrine.

To learn more about delegation or the NCLA, see here:
Nondelegation doctrine
New Civil Liberties Alliance

Additional reading:
U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives
United States Court of Appeals for the Tenth Circuit
Federal Register 
Final rule
Kisor v. Wilkie 

Federal Register weekly update; 2020 page total continues to outpace 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 20 to January 24, the Federal Register grew to 4,568 pages. Over the same period in 2019 and 2018, the Federal Register grew to 406 pages and 3,936 pages, respectively. As of January 24, the 2020 total led the 2019 total by 4,162 pages and the 2018 total by 632 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 452 documents:
• 362 notices
• three presidential documents
• 43 proposed rules
• 44 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.

Congressional filing deadline to pass in Maryland

The major-party filing deadline to run for elected office in Maryland is on January 24, 2020. In Maryland, prospective candidates may file for the following congressional offices:

  • All eight U.S. House seats
  • Neither U.S. Senate seat is up for election in 2020

The primary is scheduled for April 28, and the general election is scheduled for November 3, 2020.

An additional special election is scheduled for one of the seats, Maryland’s 7th Congressional District, due to the death of Rep. Elijah Cummings (D) on October 17, 2019. The filing deadline for the special election passed on November 20, 2019, the primary is on February 4, and the general election is on April 28. The winner of the special election will complete the remainder of Cummings’ term, which concludes in January 2021.

Maryland’s statewide filing deadline is the 10th to take place in the 2020 election cycle. The next statewide filing deadline is on January 25 in West Virginia.

Click here to learn more.

Additional reading: