CategoryFederal

U.S. Supreme Court releases October argument calendar

The U.S. Supreme Court released its October argument calendar for the 2019-2020 term. The court will begin the new term on October 7. It will hear argument in 14 cases, some of which are consolidated, totaling nine hours of argument between October 7 and October 16.
 
As of June 28, 2019, the court had agreed to hear 44 cases in the upcoming term.
 
October 7
  • Kahler v. Kansas asks whether the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense.
  • Peter v. NantKwest asks whether applicants challenging a patent rejection under Section 145 of the U.S. Patent Act must pay attorneys’ fees for the United States Patent and Trademark Office.
  • Ramos v. Louisiana asks whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
October 8
  • Bostock v. Clayton County, Georgia (consolidated with Altitude Express Inc. v. Zarda) asks whether discrimination on the basis of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964.
  • R.G. & G.R. Harris Funeral Homes v. EEOC asks whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under previous Supreme Court precedent.
October 15
  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC (consolidated with Aurelius Investment, LLC v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, LLC, United States v. Aurelius Investment, LLC, and UTIER v. Financial Oversight and Management Board for Puerto Rico) asks whether the Appointments Clause of the U.S. Constitution governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
October 16
  • Kansas v. Garcia asks (1) whether the Immigration Reform and Control Act (IRCA) preempts states from using information from federal I-9 forms to prosecute a person when that same information is on non-IRCA forms and (2) whether the IRCA preempts Kansas’ prosecutions of Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara.
  • Rotkiske v. Klemm asks whether the statute of limitations on the Fair Debt Collection Practices Act begins to run when a potential plaintiff discovers the violation or when the would-be defendant violates the act.
  • Mathena v. Malvo asks whether a Supreme Court decision prohibiting mandatory sentences of life without parole for juveniles applies when those sentences are mandatory.
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Supreme Court overturned lower court rulings at lowest rate since 2015 term

The Supreme Court of the United States (SCOTUS) concluded its October 2018 term in June. The court reversed lower court decisions at a rate of 64.9 percent, the lowest rate since the October 2015 term (63.2 percent). The rate was 5 percent lower than the court’s total reversal rate since 2007 (69.8 percent).
 
The court decided 74 cases. It affirmed a lower court’s decision in 26 cases and reversed a lower court’s decision in 48 cases.
 
Since 2007, SCOTUS has released opinions in 923 cases. In that time, it reversed a lower court decision 644 times (69.8 percent) and affirmed a lower court decision 261 times (28.3 percent).
 
More SCOTUS cases originated in the Ninth Circuit (14) than any other, and the court reversed more Ninth Circuit rulings (12) than any other circuit’s.
 
SCOTUS has decided more cases originating from the Ninth Circuit (181) than from any other since 2017. The second-most cases (66) originated in the Sixth Circuit. The Sixth Circuit (55 of 66 cases, or 83.3 percent) had the highest rate of reversed cases since 2007.
 
The Supreme Court hears and reaches decisions in 70 to 90 cases each year. There are two major possible outcomes in a SCOTUS case—it can affirm a lower court’s ruling or reverse it. The vast majority of SCOTUS cases originate in a lower court—either one of the 13 appeals circuits, state-level courts, or U.S. district courts. Original jurisdiction cases cannot be considered affirmed or reversed since SCOTUS is the first and only court that rules in the case.
 
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U.S. Supreme Court upholds deference to agency interpretations of regulations, lays out limitations

In Kisor v. Wilkie, the U.S. Supreme Court upheld Auer deference while restating the limited circumstances in which the administrative law principle applies. A principle of judicial review, Auer deference requires a federal court to yield to an administrative agency’s interpretation of an ambiguous regulation that the agency has promulgated.
 
The ruling in the case, about a marine veteran who challenged a U.S. Department of Veterans Affairs (VA) decision related to retroactive disability benefits, was unanimous in vacating and remanding the judgment of the Federal Circuit Court of Appeals. But justices disagreed about the future of judicial deference to agencies. The court instructed the Federal Circuit to redo the case and decide whether the application of Auer deference is appropriate.
 
Justice Gorsuch, who agreed to send the case back to the lower circuit, wrote a concurring opinion joined by Justices Thomas, Alito, and Kavanaugh, strongly criticizing the court for not overruling Auer deference as a doctrine.
 
Justice Kagan delivered the opinion of the court, which restated the following limitations on Auer deference:
 
1. Courts should only give Auer deference to an agency after establishing that the regulation in question is actually ambiguous. Courts must first consider the text, structure, history, and purpose of a regulation before deferring to a reasonable agency view.
 
2. A court must determine whether the reasonable agency interpretation of a regulation is an authoritative or official position of the agency before giving Auer deference.
 
3. Courts should only give Auer deference to agency interpretations based on the expertise of that agency. For questions that fall outside the regular duties of an agency, Auer deference is less appropriate.
 
 
4. The reasonable agency interpretation of an ambiguous regulation must be a “fair and considered judgment” that does not create an unfair surprise for those subject to the regulation in order to qualify for Auer deference. Courts should not defer to agency interpretations that were adopted just to help the agency during a lawsuit.
 


U.S. Supreme Court finds partisan gerrymandering claims are beyond jurisdiction of federal courts

On June 27, 2019, the Supreme Court of the United States ruled 5-4 in both Rucho v. Common Cause (North Carolina) and Lamone v. Benisek (Maryland) that partisan gerrymandering claims present political questions that fall beyond the jurisdiction of the federal judiciary. The high court combined the cases and issued a single joint decision covering both.
 
Chief Justice John Roberts penned the majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. In the court’s opinion, Roberts noted that the Framers, “aware of electoral districting problems … [assigned] the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play.” He said, “To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.”
 
Roberts went on to address the assumptions underlying partisan gerrymandering claims: “Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a ‘norm that does not exist’ in our electoral system—’statewide elections for representatives along party lines.'” Roberts also wrote, “[Federal] courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.”
 
Justice Elena Kagan penned a dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Kagan wrote the following in her dissent: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
 
The high court remanded both cases to the respective lower courts with instructions to dismiss for lack of jurisdiction. The lower court decisions had thrown out existing congressional district plans as impermissible partisan gerrymanders. As a result of the high court’s ruling, those district plans will remain in place heading into 2020. Earlier this year, a federal district court struck down Michigan’s congressional and state legislative district plans as partisan gerrymanders. That decision, which had been stayed by the Supreme Court pending resolution of Rucho and Lamone, will likely be vacated and remanded in light of the high court’s ruling.


Justice Department asks SCOTUS to consider equal protection claim in citizenship question case

The United States Department of Justice filed a request with the United States Supreme Court on June 25 asking the court to broaden the scope of Department of Commerce v. New York—a case challenging the addition of a citizenship question on the 2020 U.S. Census—in order to consider new equal protection claims.
 
Plaintiffs in a separate pending challenge to the citizenship question, La Union del Pueblo Entero v. Ross, raised equal protection claims under the Fifth Amendment in light of new information derived from a deceased Republican consultant’s hard drive. The information, according to plaintiffs, suggests that the citizenship question was added in order to gain a Republican electoral advantage. Commerce Secretary Wilbur Ross has stated that he approved the addition of the citizenship question to the 2020 census at the request of the U.S. Department of Justice (DOJ) in order to improve enforcement of the Voting Rights Act. 
 
Judge George Jarrod Hazel of the United States District Court for the District of Maryland, who ruled against the citizenship question in La Union del Pueblo Entero v. Ross on constitutional and procedural grounds, issued an order on June 19 stating that the new evidence could warrant reconsideration of the case. On June 25, a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit remanded the case for reconsideration by Hazel.
 
The Justice Department responded to the Fourth Circuit’s decision by requesting that the United States Supreme Court also consider the equal protection claim in Department of Commerce v. New York, which challenges the citizenship question on constitutional and procedural grounds. “The Fourth Circuit’s order underscores the need for this Court to address the equal protection claim … so that the lawfulness of the Secretary’s decision can be fully and finally resolved,” wrote Solicitor General Noel Fransisco.
 
The United States Supreme Court is expected to issue a decision in Department of Commerce v. New York by the end of June. If the court chooses not to consider the equal protection claim, Hazel could issue an injunction against the citizenship question in La Union del Pueblo Entero v. Ross on equal protection grounds and return the citizenship question challenge before the high court.
 


Trump picks Melania’s spokeswoman for new press secretary

Donald Trump chose Melania Trump spokeswoman Stephanie Grisham to serve as his White House press secretary Tuesday. Grisham will replace Sarah Huckabee Sanders, whose last day will be Friday.
 
The First Lady said in a tweet: “I am pleased to announce @StephGrisham45 will be the next @PressSec & Comms Director! She has been with us since 2015 – @potus & I can think of no better person to serve the Administration & our country. Excited to have Stephanie working for both sides of the @WhiteHouse.”
 
Grisham is Melania Trump’s deputy chief of staff for communications and will continue to serve in that role when she becomes press secretary. She was a member of Trump’s presidential transition team and worked on former presidential candidate Mitt Romney’s campaign.
 


Keller outraised Friedenberg 3:1 in PA-12 special election

Based on final figures released by the Federal Election Commission, Fred Keller raised more than $600,000 to Marc Friedenberg’s $200,000 in the special election for Pennsylvania’s 12th Congressional District. Keller won the election with 68 percent of the vote to Friedenberg’s 32 percent.
 
Keller was sworn in on June 3, 2019, and will serve the remainder of former Rep. Tom Marino’s (R) term. Marino resigned from office on January 23, 2019, to take a job in the private sector. Of the 18-member congressional delegation from Pennsylvania, there are nine Democrats and nine Republicans.
 
So far, four special elections have been called during the 116th Congress. Three of those are for seats in the U.S. House, and one is for a seat in the U.S. Senate. From the 113th Congress to the 115th Congress, a total of 40 special elections were held.


Former Rep. Sestak (D-Pa.) announces presidential candidacy

Former Rep. Joe Sestak (D-Pa.) announced he was running for president, bringing the number of noteworthy declared Democratic candidates to 25. This figure includes current or former elected officials and public figures. The former two-term congressman, who served 31 years in the Navy before retiring as a three-star admiral, said his priority would be addressing climate change and countering Russia and China on the international stage.
 
Sestak’s announcement makes him the first noteworthy Democratic candidate to launch a presidential bid in over a month—New York Mayor Bill de Blasio (D) launched his campaign on May 16. According to Federal Election Commission records, 259 Democrats have so far filed to run for president in 2020.
 
Sestak’s campaign launch is not late by historical standards. In 2015, 16 noteworthy major-party candidates had launched presidential campaigns as of June 23—12 Republicans and four Democrats. Seven more noteworthy candidates—Bobby Jindal (R), Chris Christie (R), Jim Webb (D), Scott Walker (R), John Kasich (R), Jim Gilmore (R), and Lawrence Lessig (D)—launched their 2016 campaigns after that date.
 
Then-Vice President Joe Biden (D), who was frequently mentioned as a potential candidate, did not rule out a bid until October 21, 2015.
 
Of the past five successful presidential candidates, both Donald Trump (R) and George W. Bush (R) launched their campaigns in June before the election year. George H.W. Bush (R) and Bill Clinton (D) launched their campaigns later, with both doing so in October in the year before the election. Of the last five presidents, only Barack Obama (D) launched his campaign prior to June before the election year, having done so in February 2007.
 
The debates this week, which will be held in Miami, are the first of 12 sets of debates planned ahead of the 2020 Democratic convention.
 


U.S. Supreme Court sends deference case back to 4th Circuit

In PDR Network, LLC v. Carlton & Harris Chiropractic Inc., the U.S. Supreme Court ruled 9-0 that the 4th Circuit Court of Appeals needed to answer several questions before it could decide whether the Hobbs Act requires district courts to uphold agency interpretations of certain laws.
 
Justice Stephen Breyer wrote the majority opinion, which said that the 4th Circuit must first decide whether a 2006 Federal Communications Commission (FCC) interpretation of the Telephone Consumer Protection Act (Telephone Act) was a legislative rule, which carries the force of law, or an interpretive rule, which is non-binding. The opinion also directed the 4th Circuit to decide whether PDR Network had the chance to seek judicial review of the 2006 order before enforcement.
 
Justice Clarence Thomas wrote a concurring opinion arguing that this case shows why the court should reconsider precedents like Chevron v. NRDC (1984), which held that courts should defer to reasonable agency interpretations of ambiguous laws when Congress gives the agency the authority to administer those laws. Justice Kavanaugh wrote a separate concurring opinion arguing that the court was right to vacate the 4th Circuit’s judgment but that it should have also ruled that the Hobbs Act allows district courts to consider the validity of agency interpretations of law.
 
The case involved an incident from 2013. PDR Network, LLC sent a fax to Carlton & Harris, a West Virginia chiropractor, offering the company a free copy of the Physicians Desk Reference. Carlton & Harris sued PDR in federal court under the Telephone Act, which prohibits companies from using fax machines to send unsolicited advertisements. At issue is the definition of an unsolicited advertisement, which the FCC defined under the Telephone Act in a 2006 order.
 


Federal Register weekly update; highest weekly final rule total of 2019

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 June 17 to June 21, the number of pages in the Federal Register increased by 1,464 pages, bringing the year-to-date total to 29,370 pages. This week’s Federal Register featured a total of 616 documents, including 487 notices, three presidential documents, 36 proposed rules, and 90 final rules.
 
One proposed rule and two final rules 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 1,284 pages for a year-to-date total of 29,434 pages. As of June 21, the 2019 total trailed the 2018 total by 64 pages.
 
The Trump administration has added an average of 1,175 pages to the Federal Register each week in 2019 as of June 21. 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