CategoryFederal

Rep. Lowey (N.Y.) becomes sixth Democratic U.S. House member to announce 2020 retirement

Rep. Nita Lowey (D-N.Y.) announced yesterday that she would not run for re-election in 2020. She was first elected to Congress in 1988 and represents New York’s 17th District. 

Lowey received 88% of the vote over a Reform Party candidate in winning re-election in 2018. She ran unopposed in both the Democratic primary and general election in 2016. That year, Hillary Clinton (D) won the district with 58.6% of the vote. The 2017 Cook Partisan Voter Index for the district was D+7, meaning that in the previous two presidential elections, this district’s results were 7 percentage points more Democratic than the national average.

Lowey becomes the 23rd House member—and sixth Democrat—to announce they would not run for re-election in 2020. Four U.S. Senators—three Republicans and one Democrat—have also announced they would not seek re-election. Fifty-five members of Congress did not run for re-election in 2018. The current partisan composition of the House is 235 Democrats, 197 Republicans, one independent, and two vacancies.

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Federal agencies allowed to implement Trump’s civil service executive orders

Federal agencies can fully implement President Donald Trump’s (R) three civil service executive orders after the United States Court of Appeals for the District of Columbia Circuit on Wednesday lifted an injunction that had blocked the implementation of provisions concerning the use of union official time.
 
President Trump issued the civil service executive orders (E.O. 13837, E.O. 13836, and E.O.13839) in May 2018. The orders include proposals aimed at facilitating the removal of poor-performing federal employees and streamlining collective bargaining procedures. Union groups, including the American Federation of Government Employees, the National Treasury Employees Union, and 13 smaller unions, filed suit to prevent the orders from taking effect.
 
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia issued an injunction in August 2018 blocking Trump administration officials from implementing nine provisions of the executive orders that she claimed unlawfully restricted the use of union official time. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit reversed Jackson’s ruling in July, holding that the lower court did not have jurisdiction and that the plaintiffs should have brought their case before the Federal Labor Relations Authority (FLRA) as required by the Federal Service Labor-Management Relations Statute (FSLMRS).
 
The plaintiffs requested a rehearing en banc before the full D.C. Circuit in August, but the court denied the request on September 25 without providing a rationale for its decision. The court lifted the injunction one week later.
 
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D.C. Circuit Court of Appeals upholds net neutrality repeal while striking down preemption of state and local regulations

In an opinion delivered on October 1, 2019, the United States Court of Appeals for the District of Columbia Circuit upheld the FCC’s 2018 net neutrality repeal but struck down the agency’s preemption of state and local net neutrality regulations. The court also directed the agency to consider how the repeal would affect public safety, broadband subsidies, and the regulation of cable pole attachments.
 
The case arose when attorneys general from 22 states and the District of Columbia filed a brief with the D.C. Circuit Court of Appeals on August 20, 2018, asking the court to reinstate the Obama administration’s net neutrality regulations. In the brief, the attorneys general said the FCC’s repeal of net neutrality would harm consumers, public safety, and existing regulations. They also claimed the FCC was not authorized to preempt state and local laws.
 
During the 2019 legislative session, 29 states introduced net neutrality legislation, but the measures failed in four states. Despite the FCC’s preemption, six states—California, Colorado, Maine, Oregon, Vermont, and Washington—have passed legislation relating to net neutrality. Further, the governors of six states—Montana, New York, Hawaii, New Jersey, Rhode Island, and Vermont—issued executive orders requiring internet service providers that do business with the state to comply with net neutrality rules.
 
This case is one of at least 47 multistate lawsuits that have been filed against the federal government since President Donald Trump took office in January 2017.
 


12 Democrats expected to qualify for record-breaking October presidential debate

Tuesday was the final day for candidates to qualify for the fourth Democratic presidential primary debate on Oct. 15, 2019. They needed to reach the polling threshold of 2 percent support or more in four national or early state polls and the fundraising threshold of 130,000 unique contributors.
 
Twelve candidates were expected to make the stage:
• Joe Biden
• Cory Booker
• Pete Buttigieg
• Julián Castro
• Tulsi Gabbard
• Kamala Harris
• Amy Klobuchar
• Beto O’Rourke
• Bernie Sanders
• Tom Steyer
• Elizabeth Warren
• Andrew Yang
 
While the first two Democratic debates were held over two nights so that no more than 10 candidates were on stage at one time, the Democratic National Committee announced Friday that the October debate will take place on one day. With 12 candidates expected to qualify, it will be the most candidates on stage in a single presidential primary debate. Republicans held the previous record with 11 candidates on stage during the September 2015 debate.
 
Otterbein University in Westerville, Ohio, will host the event. Erin Burnett, Anderson Cooper, and Marc Lacey are set to moderate.


Group of 17 states brings administrative law challenge against new Endangered Species Act rules

On September 25, a group of 17 states, Washington, D.C., and New York City, joined together to sue the Trump administration in an effort to block three new rules that changed how federal agencies enforce the Endangered Species Act (ESA). The lawsuit argues that the U.S. Fish and Wildlife Service and National Marine Fisheries Service failed the Administrative Procedure Act’s (APA) arbitrary-or-capricious test when they issued the rules in August.
 
The arbitrary-or-capricious test is a legal standard of review judges use to assess actions taken by administrative agencies. The test came from a provision of the 1946 Administrative Procedure Act, which instructs courts reviewing agency actions to invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Judges use the test most often to assess the facts underlying an agency rulemaking.
 
According to the Trump administration, the rule changes related to the ESA reduce the regulatory burden and increase agency transparency. Opponents of the rules argue that the changes limit the ability of agencies to respond to perceived problems.
 
The states filed the lawsuit in the United States District Court for the Northern District of California. The 17 states that joined the lawsuit are California, Massachusetts, Maryland, Colorado, Connecticut, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
 


Fifth Circuit pauses SEC action while it resolves appointment power question

On September 24, a panel of judges on the Fifth Circuit Court of Appeals ordered the Securities and Exchange Commission (SEC) to delay enforcement proceedings against an accountant until after the court resolves a pending legal challenge. The accountant, Michelle Cochran, argues that since the president cannot fire the SEC Administrative Law Judge (ALJ) that will oversee her agency hearing, the ALJ has unconstitutional protections. The Fifth Circuit will now decide whether SEC ALJs operate in line with the U.S. Constitution.
 
An ALJ is an official who presides over federal administrative hearings. ALJs serve as both the judge and the jury in an administrative hearing. The Administrative Procedure Act (APA) requires that administrative law judges preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings aim to resolve disputes between either agencies and private parties or between two private parties.
 
According to a summary provided by her lawyers, Cochran’s case started in 2016, when she was charged with violating accounting standards. An SEC ALJ ruled against her in 2017, fined her, and banned her from practicing as an accountant for five years. Soon after, the U.S. Supreme Court decided _Lucia v. SEC_. In that case, the court ruled that SEC ALJs were officers of the United States and had to be appointed by the president according to the procedures in the U.S. Constitution.
 
Since the ALJ who made the 2017 ruling against Cochran was not appointed by the president, the SEC decided that a new, properly appointed, ALJ had to re-hear her case. Now, Cochran is challenging the civil service removal protections that keep presidents from firing SEC ALJs once they have been appointed. She argues that the ALJs enjoy layers of removal protections similar to those the U.S. Supreme Court found unconstitutional in the 2013 case _Free Enterprise Fund v. PCAOB_.
 
Cochran is represented by the New Civil Liberties Alliance (NCLA), a public interest law firm in Washington, D.C. The judges on the Fifth Circuit panel were Reagan-appointee Edith Jones, Obama-appointee Stephen Higginson, and Trump-appointee Andrew Oldham.
 


DNC announces fourth presidential primary debate in October will be held on single day, 12 candidates expected to qualify

The Democratic National Committee announced Friday that the October presidential primary debate will take place on one day, rather than two days as was expected. It will be held in Westerville, Ohio, with CNN and The New York Times as hosts. Erin Burnett, Anderson Cooper, and Marc Lacey will moderate the debate.
 
Tulsi Gabbard reached 2 percent support in a New Hampshire poll released this week, giving her the final poll necessary to qualify and bringing the total number of candidates expected on stage to 12.
 
The candidates who had already qualified are Joe Biden, Cory Booker, Pete Buttigieg, Julián Castro, Kamala Harris, Amy Klobuchar, Beto O’Rourke, Bernie Sanders, Tom Steyer, Elizabeth Warren, and Andrew Yang.
 
The other seven Democratic candidates have until Oct. 1 to reaching the polling and fundraising thresholds.


D.C. Circuit declines to rehear case challenging Trump’s civil service executive orders; injunction set to be lifted

The United States Court of Appeals for the District of Columbia Circuit declined a rehearing request before the full court on Wednesday in a case challenging President Donald Trump’s (R) three civil service executive orders. Unless plaintiffs appeal the case further, the court’s decision could wrap up over a year of litigation and lift an injunction that has prevented the Trump administration from implementing provisions of the executive orders related to the use of union official time.
 
President Trump issued the civil service executive orders (E.O. 13837, E.O. 13836, and E.O.13839) in May 2018. The orders include proposals aimed at facilitating the removal of poor-performing federal employees and streamlining collective bargaining procedures. Union groups, including the American Federation of Government Employees, the National Treasury Employees Union, and 13 smaller unions, filed suit to prevent the orders from taking effect.
 
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia issued an injunction in August 2018 blocking Trump administration officials from implementing nine provisions of the executive orders that she claimed unlawfully restricted the use of union official time. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit reversed Jackson’s ruling in July, holding that the lower court did not have jurisdiction and that the plaintiffs should have brought their case before the Federal Labor Relations Authority as required by the Federal Service Labor-Management Relations Statute.
 
The plaintiffs requested a rehearing _en banc_ before the full D.C. Circuit in August, but the court denied the request on Wednesday without providing a rationale for its decision. As a result, the injunction blocking provisions of the executive orders from taking effect is set to be lifted by October 2, 2019.
 
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Federal Register weekly update; lowest weekly page total since July

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 16 to September 20, the number of pages in the Federal Register increased by 1,088 pages, bringing the year-to-date total to 49,634 pages. The week’s Federal Register featured a total of 508 documents, including 418 notices, eight presidential documents, 39 proposed rules, and 43 final rules.
 
One proposed rule was deemed significant under E.O. 12866—meaning that it may have a large impact 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 1,352 pages for a year-to-date total of 48,200 pages. As of September 20, the 2019 total led the 2018 total by 1,434 pages.
 
The Trump administration has added an average of 1,306 pages to the Federal Register each week in 2019 as of September 20. 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.
 
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Click below to find yearly information about additions to the Federal Register from 1936 to 2016. 
 


OPM moves to implement unblocked provisions of Trump’s civil service executive orders

The U.S. Office of Personnel Management (OPM) issued a proposed rule on Tuesday aiming to implement a selection of employee performance provisions from President Donald Trump’s (R) three civil service executive orders.
 
President Trump issued the civil service executive orders (E.O. 13837, E.O. 13836, and E.O.13839) in May 2018. The orders include proposals aimed at facilitating the removal of poor-performing federal employees and streamlining collective bargaining procedures.
 
Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia issued an injunction in August 2018 blocking Trump administration officials from implementing nine provisions of the executive orders that she claimed unlawfully restricted the use of union official time. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit reversed Jackson’s ruling in July, but the injunction remains in place as the case continues to move through the federal courts.
 
The proposed rule issued by OPM seeks to implement provisions of the executive orders not barred by the injunction. These include notifying supervisors that an employee’s probationary period is set to expire; limiting poor-performing employees to one performance improvement period to demonstrate acceptable performance; prohibiting the removal of employee information from personnel records as part of a settlement agreement; publishing data related to adverse personnel actions; and creating new penalties for supervisors who retaliate against whistleblowers.
 
The proposed rule is open for public comment through October 17, 2019.