CategoryFederal

Transition Tracker: Biden picks Merrick Garland to lead Justice Department

Prior to taking office on January 20, 2021, President-elect Joe Biden (D) and his team must prepare for the transition between presidential administrations, including selecting senior White House staff and appointees to top government positions.

In 2016, there were 1,714 government positions subject to presidential appointment: 1,242 positions required Senate confirmation and 472 did not. The new administration is also responsible for filling thousands of other positions across the federal government, including in operations and policy. Every weekday, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Congress Counts Electoral Votes, Declares Biden Winner

Congress convened a joint session on Wednesday to count electoral votes by state and confirm the result of the presidential election.

As president of the Senate, Vice President Mike Pence (R) presided over the proceedings. To object to a state’s count, one member each from the House and Senate had to submit a written objection after the body read the vote count from a particular state or D.C. After time for debate—a maximum of two hours—both chambers voted by a simple majority to concur or reject the objection.

Thousands of supporters of President Donald Trump (R) went to the Capitol Building as Congress was in its joint session. Around 2:15 p.m. ET, both chambers recessed as the group breached the Capitol and the building went into lockdown. The group trespassed through several security barriers, leading to altercations with police and other security officials. Hundreds reached the interior of the Capitol and vandalized the building. Pence and House Speaker Nancy Pelosi (D-Calif.) were evacuated. Other members of Congress evacuated or sheltered in place. Four people died, including one woman shot and killed by Capitol Police.

After the Capitol was secured, Congress reconvened after 8 p.m. ET to continue with the count. Members submitted objections for six states. Two objections were formally presented by a Senate and House member:

  • Arizona: The Senate voted against sustaining the objection to Arizona’s electoral votes by a vote of 6-93. The House voted against sustaining this objection by a vote of 121-303.
  • Pennsylvania: The Senate voted against sustaining the objection to Pennsylvania’s electoral votes by a vote of 7-92. The House voted against sustaining the objection by a vote of 138-282.

Four states were counted following incomplete objections presented by a U.S. House member without a U.S. senator:

  • Georgia
  • Michigan
  • Nevada
  • Wisconsin

At 3:40 a.m. ET, Pence declared Biden the winner of the presidential election with 306 electoral votes and concluded the joint session.

Since the 1887 passage of the Electoral Count Act, there have been two instances of congressional objections. In 1969, an objection was raised against the North Carolina electoral votes, which was rejected 58-33 in the Senate and 228-170 in the House. In 2005, an objection was raised to the Ohio vote. It was rejected 74-1 in the Senate and 267-31 in the House.

Appointments and Nominations

Merrick Garland, U.S. attorney general

Biden announced on Thursday that he had selected Merrick Garland, a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit, as his nominee for U.S. attorney general. Garland previously worked at the Department of Justice, where he led prosecutions related to the Oklahoma City bombings and the Unabomber case. He was a deputy assistant attorney general for the Criminal Division and a principal associate deputy attorney general. 

Garland was previously nominated by President Barack Obama (D) to the Supreme Court.

Biden announced three other Department of Justice nominations:

  • Lisa Monaco, deputy attorney general
  • Vanita Gupta, associate attorney general
  • Kristen Clarke, assistant attorney general for civil rights

News

  • Operation Warp Speed leader Moncef Slaoui will continue to work in the Biden administration as a consultant. He said on Wednesday, “I will continue to support as needed, I think we are getting close to the point where my value add is more limited and therefore I’ll expect my activity to decrease gradually after January 21.” 
  • Biden is expected to name the National Security Agency’s director of cybersecurity, Anne Neuberger, to a newly created position on the National Security Council focused on cybersecurity. 

What We’re Reading



Warnock wins Georgia’s U.S. Senate special election runoff, outcome of regular election runoff not yet determined

As of 8:30 a.m. ET on Jan. 6, one of Georgia’s two U.S. Senate runoff elections had been called. Raphael Warnock (D) was projected as the winner of the special runoff election with 50.6% of the vote to incumbent Kelly Loeffler’s (R) 49.4%, according to unofficial results available as of Wednesday morning. 

In the regular election, Jon Ossoff (D) led David Perdue (R) 50.2% to 49.8%. Ballotpedia will not project a winner until there is a consensus projection made by a pool of five national news outlets: ABC, CNN, FOX, NBC, and NYT. None of the outlets had called the election as of 8:30 a.m. ET Wednesday. 

With Warnock’s win, the Democratic caucus in the U.S. Senate will have 49 members, while there are 50 Republicans in the chamber. If Perdue wins re-election, Republicans will maintain their Senate majority with 51 members. If Ossoff wins, Democrats will split the chamber 50-50 and Kamala Harris (D) will cast tie-breaking votes.

Perdue was elected to the Senate in 2014, and his term ended Jan. 3. His seat will remain vacant until the runoff election results are certified. Gov. Brian Kemp (R) appointed Loeffler after Johnny Isakson (R) resigned at the end of 2019 for health reasons. Warnock will serve the remaining two years of the term Isakson won in 2016.

Republicans framed the fight over Senate control as a fight against socialism in America. Democrats said the incoming Biden administration needs a Democratic Senate majority to make progress on healthcare and pandemic recovery.

Warnock will be the first Black U.S. Senator from Georgia. Georgia’s last Democratic senator, Zell Miller, left office in 2005. 

Joe Biden was the first Democratic presidential nominee to win Georgia since Bill Clinton did so in 1992. 

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Georgia’s two U.S. Senate runoff elections too close to call as of midnight on Jan. 6

Voters in Georgia decided runoffs in two U.S. Senate elections on Jan. 5. As of 12 a.m. EST Wednesday, both races were considered too close to call. In the regular election, Sen. David Perdue (R) led Jon Ossoff (D) by fewer than 2,000 votes, with both candidates receiving 50.0% of the vote. In the state’s special election, Raphael Warnock (D) led Kelly Loeffler (R), 50.4%-49.6%.

Ballotpedia will not project a winner for these elections until there is a consensus projection made by a pool of five national news outlets: ABC, CNN, FOX, NBC, and the New York Times. None of the five outlets had called either election as of 12 a.m. EST Wednesday. 

If Democrats win both runoffs, there will be a 50-50 tie between Democratic and Republican caucuses in the Senate, and Kamala Harris (D) would cast tie-breaking votes. If Republicans win one or both runoffs, they would maintain their majority.

The winners will be sworn in once results are certified. Secretary of State Brad Raffensperger (R) has until Jan. 22 to certify statewide results. Perdue’s term ended on Jan. 3. The seat he held will be vacant until results are certified. Loeffler was appointed to temporarily serve the term Johnny Isakson (R) won, which ends in January 2023. Loeffler will remain a Senator until the results are certified, and whoever wins the race will complete the term.

In Georgia, a candidate may request a recount within two business days of when results are certified if the margin between the candidates is less than or equal to 0.5%. Additionally, an election official may order a recount if it appears there is a discrepancy or error in the returns.

Additional reading:

https://ballotpedia.org/United_States_Senate_special_election_in_Georgia,_2020_(Loeffler_vs._Warnock_runoff)

https://ballotpedia.org/United_States_Senate_election_in_Georgia,_2020_(Perdue_vs._Ossoff_runoff)



Federal Register weekly update: Highest weekly page total of 2020

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 December 28 to December 31, the Federal Register grew by 3,154 pages for a year-to-date total of 87,352 pages. Over the same period in 2019 and 2018, the Federal Register reached 72,564 pages and 68,082 pages, respectively. As of December 31, the 2020 total led the 2019 total by 14,788 pages and the 2018 total by 19,270 pages. 

The Federal Register hit an all-time high of 95,894 pages in 2016.

Last week’s Federal Register featured the following 470 documents:

  • 386 notices
  • one presidential document
  • 25 proposed rules
  • 58 final rules

One final rule concerning source classification under the Clean Air Act was deemed significant under E.O. 12866—defined by the potential to 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. The Trump administration in 2020 issued 34 significant proposed rules, 74 significant final rules, and one significant notice.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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 2019, 2018, and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register 

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Click here to find yearly information about additions to the Federal Register from 1936 to 2018: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2018



OIRA reviewed 90 significant rules in December

The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 90 significant regulatory actions issued by federal agencies in December 2020. The agency approved five rules without changes and approved the intent of 82 rules while recommending changes to their content. Agencies withdrew two rules from the review process. One rule was subject to a statutory or judicial deadline.

OIRA reviewed 58 significant regulatory actions in December 2019, 31 significant regulatory actions in December 2018, and 30 significant regulatory actions in December 2017.

OIRA reviewed a total of 646 significant rules in 2020. The agency reviewed a total of 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.

As of January 4, 2021, OIRA’s website listed 118 regulatory actions under review.

OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.

Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit:  https://ballotpedia.org/Completed_OIRA_review_of_federal_administrative_agency_rules

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Ballotpedia releases federal judicial vacancy count for December

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from December 1, 2020, to December 31, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been no new judicial vacancies since the November 2020 report. There are 46 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 49 of 890 active federal judicial positions are vacant.

Nominations: There were no new nominations since the November 2020 report.

Confirmations: There have been seven new confirmations since the November 2020 report.

New vacancies

There were 46 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 5.3.

  • The nine-member U.S. Supreme Court does not have any vacancies.
  • Two (1.1%) of the 179 U.S. Appeals Court positions are vacant.
  • 43 (6.4%) of the 673 U.S. District Court positions are vacant.*
  • One (11.1%) of the nine U.S. Court of International Trade positions is vacant.

*District court count does not include territorial courts.

No judges left active status, which would create Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. Court of Appeals vacancies

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) to the date indicated on the chart.

The following maps show the number of vacancies on the United States Court of Appeals at Trump’s inauguration and as of December 31, 2020.

New nominations

Trump has not announced any new nominations since the November 2020 report.

New confirmations

Since December 1, 2020, the United States Senate has confirmed seven of Trump’s nominees to Article III seats. 

  • Taylor McNeel, confirmed to the United States District Court for the Southern District of Mississippi.
  • J. Philip Calabrese, confirmed to the United States District Court for the Northern District of Ohio.
  • Thomas Kirsch, confirmed to the United States Court of Appeals for the 7th Circuit.
  • Katherine Crytzer, confirmed to the United States District Court for the Eastern District of Tennessee.
  • Joseph Dawson, confirmed to the United States District Court for the District of South Carolina.
  • Charles Atchley, confirmed to the United States District Court for the Eastern District of Tennessee.
  • Fernando Aenlle-Rocha, confirmed to the United States District Court for the Central District of California.

As of January 4, 2021, the Senate has confirmed 234 of President Trump’s Article III judicial nominees—174 district court judges, 54 appeals court judges, three Court of International Trade judges, and three Supreme Court justices—since January 2017.

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Nancy Pelosi elected speaker of the House for 117th Congress

Rep. Nancy Pelosi (D-Calif.) was elected speaker of the House on Sunday with 216 votes. Five Democratic representatives did not vote for her: Jared Golden (D-Maine), Conor Lamb (D-Pa.), Mikie Sherrill (D-N.J.), Elissa Slotkin (D-Mich.), and Abigail Spanberger (D-Va.). Golden voted for Sen. Tammy Duckworth (D-Ill.), and Lamb voted for Rep. Hakeem Jeffries (D-N.Y.). Sherrill, Slotkin, and Spanberger voted “present.” All 209 participating Republican representatives cast their votes for House Minority Leader Kevin McCarthy (R-Calif.).

The speaker of the House is elected on the first day the new Congress convenes. If all 435 members vote, a candidate for speaker of the House must receive at least 218 votes to be elected. If not all members vote or some choose to vote “present,” a candidate must receive a majority of support from those participating in the election. Because 427 representatives voted for someone by name, 214 votes were required for the speaker to be elected.

Pelosi is the sixth speaker elected since 1912 (when the House grew to 435 members) without a majority of the full House membership. The previous speakers elected with fewer than 218 votes during this period were:

  1. “Champ” Clark, elected 1917 with 217 votes
  2. Frederick Gillett, elected 1923 with 215 votes
  3. Sam Rayburn, elected 1943 with 217 votes
  4. Newt Gingrich, elected 1997 with 216 votes
  5. John Boehner, elected 2015 with 216 votes.

Pelosi was selected as the Democratic nominee for speaker of the House by a voice vote on November 18, 2020. She was unopposed.

In 2019, Pelosi was elected speaker of the House with 220 votes. That year, 15 Democrats did not vote for her, including the five who did not vote for her in 2021. Five of the fifteen voted for her in 2021, three lost re-election in November 2020, Jeff Van Drew (R-N.J.) switched parties in December 2019, and the outcome of Anthony Brindisi’s race in New York’s 22nd Congressional District was unclear as of January 3.

Pelosi previously served as House speaker from 2007 to 2010 and became House minority leader after Democrats lost control of the House in the 2010 elections. Support for or opposition to Pelosi returning to the speakership was a major issue for Democratic candidates in the 2018 U.S. House elections.

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Federal Register weekly update: 2020 year-to-date total of 84,198 pages

Banner with the words "The Administrative State Project"

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 December 21 to December 25, the Federal Register grew by 1,328 pages for a year-to-date total of 84,198 pages. Over the same period in 2019 and 2018, the Federal Register reached 71,734 pages and 67,676 pages, respectively. As of December 25, the 2020 total led the 2019 total by 12,464 pages and the 2018 total by 16,522 pages. 

The Federal Register hit an all-time high of 95,894 pages in 2016.

Last week’s Federal Register featured the following 444 documents:

  • 361 notices
  • four presidential documents
  • 26 proposed rules
  • 53 final rules

One proposed rule regarding railroad safety and two final rules concerning the Farm Credit Administration’s repeal of certain amortization limits and the U.S. Department of Justice’s effort to streamline reporting procedures under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 were deemed significant under E.O. 12866—defined by the potential to 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. The Trump administration in 2020 has issued 34 significant proposed rules, 73 significant final rules, and one significant notice as of December 25.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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 2019, 2018, and 2017.

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President Trump signs Consolidated Appropriations Act, approves second round of direct payments

President Donald Trump (R) signed the Consolidated Appropriations Act into law December 27, approving a $900 billion legislative package that included a second round of direct stimulus payments in response to the coronavirus pandemic.

The act, which was introduced as a series of amendments to the United States-Mexico Economic Partnership Act, passed both chambers of Congress on Dec. 21. It is the fifth-longest bill ever to have passed Congress, according to GovTrack.

Among the act’s provisions is a second round of direct stimulus payments. The act calls for individuals who reported an income of $75,000 or less in tax year 2019 to receive a direct payment of $600. The size of the payment decreases as 2019 income increases, with individuals who reported an income of $99,000 or greater in 2019 receiving no direct payment.

President Trump (R) signed a first round of direct stimulus payments of up to $1,200 into law in March.

The act extends several existing federal policies enacted in response to the pandemic, including a moratorium on evictions, federal unemployment assistance, and the Paycheck Protection Program. The act also includes $20 billion in funding for coronavirus testing and $28 billion towards acquiring and distributing doses of the vaccine.

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Ballotpedia’s Weekly Transition Tracker December 24-30, 2020

Prior to taking office on January 20, 2021, President-elect Joe Biden (D) and his team must prepare for the transition between presidential administrations, including selecting senior White House staff and appointees to top government positions.

In 2016, there were 1,714 government positions subject to presidential appointment: 1,242 positions required Senate confirmation and 472 did not. The new administration is also responsible for filling thousands of other positions across the federal government, including in operations and policy. Every weekday, Ballotpedia is tracking potential Cabinet nominees, appointments, and news related to the Biden presidential transition.

Appointments and Nominations

Biden announced members of the White House Office of Digital Strategy on Monday. All 12 appointees worked on Biden’s 2020 presidential campaign:

  • Brendan Cohen, platform manager
  • Rob Flaherty, director of digital strategy
  • Maha Ghandour, digital partnerships manager
  • Jonathan Hebert, video director
  • Jaime Lopez, director of platforms
  • Carahna Magwood, creative director
  • Abbey Pitzer, designer
  • Olivia Raisner, traveling content director
  • Rebecca Rinkevich, deputy director of digital strategy
  • Aisha Shah, partnerships manager
  • Christian Tom, deputy director of digital strategy
  • Cameron Trimble, director of digital engagement

News

  • Politico reported that Boston Mayor Marty Walsh (D) is in top consideration for secretary of labor. California Labor Secretary Julie Su (supported by AAPI legislators) and former ambassador to South Africa Patrick Gaspard (supported by the Congressional Black Caucus PAC) are also potential nominees.
  • Sen. Bernie Sanders (I-Vt.) said on Sunday that the Cabinet should include progressive members. “What I have said many, many times is the progressive movement itself probably is 35 or 40 percent of the Democratic Coalition. And I believe that the progressive movement deserves seats in the Cabinet; that has not yet happened,” he said.
  • Vice President-elect Kamala Harris (D) received her first dose of Moderna’s coronavirus vaccine on Monday.
  • Biden criticized the level of cooperation his team was receiving from certain agencies on Monday. He said, “We’ve encountered roadblocks from the political leadership in the Department of Defense and the Office of Management and Budget. Right now, we just aren’t getting all the information that we need from the outgoing administration in key national security areas.”
  • Acting Secretary of Defense Christopher Miller (R) responded in a statement, “The Department of Defense has conducted 164 interviews with over 400 officials, and provided over 5,000 pages of documents – far more than initially requested by Biden’s transition team.”

Transition in Context

Biden announced his pick for secretary of education 49 days after the general election, later than both Presidents Donald Trump (R) and Barack Obama (D) for this Cabinet position announcement.

Biden has yet to announce nominees for five Cabinet-level positions. With the exception of the director of the CIA, both Trump and Obama had announced nominees for these positions at this point in their transitions.

What We’re Reading



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