CategoryFederal

SCOTUS allows Trump administration to end 2020 census count

The U.S. Supreme Court issued an order on Oct. 13 which allows the Trump administration to end the 2020 census count. SCOTUS stayed an order from the 9th U.S. Circuit Court of Appeals, which had directed the Trump administration to continue to gather data through the end of October.

The Trump administration had argued that they must be able to conclude the count before the end of October in order to meet a Dec. 31 deadline to report the results to the president. The Justice Department had told the court that “there is virtually no prospect that the [U.S. Census] Bureau will be able to comply with the statutory deadline,” unless they were allowed to end the count.

Justice Sonia Sotomayor dissented, saying: “[T]he harms associated with an inaccurate census are avoidable and intolerable,” and that “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

After the order was issued, the U.S. Census Bureau announced that they would be shutting down on Oct. 15. It has also set that date as the postmark deadline for paper census forms sent by mail, and as the end date for collecting responses through phone calls and door-knocking.

Every ten years, the U.S. Census Bureau conducts a nationwide census in order to provide a comprehensive count of the population with demographic information. This information is used by the government in many ways, including for the apportionment of seats in the U.S. House of Representatives and the allocation of federal funds.

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Supreme Court cases, October term 2020-2021
Supreme Court of the United States
United States Census Bureau
United States Court of Appeals for the Ninth Circuit
Sonia Sotomayor



Learn more about the arguments in the debate over lockdown/stay-at-home orders during the coronavirus pandemic

Discussions about policy responses to the coronavirus are happening at a fast pace. As part of our ongoing coverage Documenting America’s Path to Recovery, Ballotpedia has published a series of articles capturing the regular themes in support of and opposition to these policy responses.

Here’s how it works. First, we identify a topic area, (such as mask requirements or testing). Next, we gather and curate articles and commentary from public officials, think tanks, journalists, scientists, economists, and others. Finally, we organize that commentary into broad, thematic summaries of the arguments put forth.

We’ve identified the following arguments as some of those in favor of lockdown/stay-at-home orders:

  1. The orders are necessary,
  2. The orders are better for the economy long-term,
  3. The orders are legal, and
  4. The orders are limited.

We’ve identified the following arguments as some of those against lockdown/stay-at-home orders:

  1. The orders are unnecessary,
  2. The orders are worse than the coronavirus pandemic itself,
  3. The orders are illegal, and
  4. The orders go too far.

To read more about these issues, click the links below.

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Who runs elections in the United States?

Election administration in the U.S. is largely decentralized. Administrators at the state and local level are responsible for running elections, from maintaining voter registration records to counting ballots. As a result, election laws and procedures vary widely among states and localities.

Each state has an agency that manages elections. Responsibilities of the state-level office often include training local elections officials, maintaining a voter registration database, and offering guidance on the testing of voting machines. Each state also has a head elections official. In 24 states, the chief elections official is an elected Secretary of State.

At the local level, county governments are most commonly responsible for election administration, rather than city or town governments. According to one estimate, more than 10,000 local entities administrate elections in the U.S. In many municipalities, elections are managed by a clerk, recorder, or registrar, who has other duties in addition to running elections.

On the national level, the Election Assistance Commission is responsible for maintaining a national voter registration form and offers guidance on elections administration to state agencies. Meanwhile, the Federal Election Commission (FEC) is responsible for enforcing federal campaign finance laws. Established in 1975, the FEC manages public funding of presidential campaigns, oversees limits on campaign contributions, and publishes information on how campaigns raise and spend money.

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Supreme Court announces it will use teleconferencing to hear oral arguments for November, December sittings

The Supreme Court of the United States announced on October 9, 2020, that it will hear oral arguments via teleconference for its November and December sittings. Currently, eight arguments are set for November, and ten are set for December.

The court previously heard oral arguments via teleconference in May and October of this year after closing to the public indefinitely on March 12, 2020, due to the COVID-19 pandemic. The live audio from the arguments was made available to the public for the first time in the court’s history; previously, the court released audio and transcripts of oral arguments on Fridays.

The arguments will follow the same format the court used formerly, including rules dictating which Justices will ask questions based on seniority.

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U.S. Supreme Court declines to hear case challenging Chevron deference

On October 5, the U.S. Supreme Court rejected a challenge against Chevron deference brought by the Children’s Hospital Association of Texas. The association had asked whether courts should give Chevron deference to agency legal interpretations that are different from previous agency interpretations.

Chevron deference is an approach to judicial review that compels federal courts to yield to a federal agency’s reasonable interpretation of an ambiguous or unclear statute instead of using the courts’ own interpretation. Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

The challenge to Chevron came out of a decision issued by the U.S. Court of Appeals for the D.C. Circuit.

The association argued in its petition to the U.S. Supreme Court that the D.C. Circuit should not have upheld the rule under Chevron. The petition says, “the court of appeals chose to ‘skip’ Chevron step one, brushed aside canons of statutory construction, and looked past what it acknowledged was a legal error in a key premise of the agency’s rulemaking—the agency’s insistence that its new regulation merely clarified, and was consistent with, existing policy. In numerous ways, this ruling conflicts with decisions from other circuits and this Court.

Judge Karen Henderson, a George H.W. Bush appointee, wrote the opinion for the D.C. Circuit saying, “The familiar Chevron framework guides our review.” She held that the statute was clear, so the court needed only to decide whether the agency’s interpretation was reasonable. Henderson wrote that the rule was consistent with the Medicaid law and upheld it.

Since the U.S. Supreme Court denied review of the case, the 2019 decision of the D.C. Circuit will remain in effect.

To learn more about Chevron deference or judicial deference, see here:



Ballotpedia study shows that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules

A Ballotpedia study of all 50 state constitutions and administrative procedure acts (APAs) showed that 29 state APAs require administrative agencies to conduct a cost-benefit analysis before implementing rules, as of September 2020.

Cost-benefit analysis is an aspect of agency dynamics, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Cost-benefit analysis requires administrative agencies to consider whether the potential costs of a new rule will outweigh its benefits.

Since President Ronald Reagan issued Executive Order 12291 in 1981, federal administrative agencies have conducted cost-benefit analyses for any new major rules. President Bill Clinton refined cost-benefit analysis requirements in Executive Order 12866 in 1993 and Presidents George W. Bush, Barack Obama, and Donald Trump have maintained cost-benefit analysis requirements in their own executive orders.

Ballotpedia’s study of state agency cost-benefit analysis standards concluded a variety of results.

Many states require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *require cost-benefit analysis*.

Some states require administrative agencies to perform the cost-benefit analysis only in certain circumstances. For instance, Illinois only requires such analysis if a proposed rule may have an impact on small businesses, nonprofit corporations, or small municipalities. Thus, Ballotpedia concluded that those states *conditionally require cost-benefit analysis*.

Some states require administrative agencies to perform a limited cost-benefit analysis before making rules. For instance, Alaska requires agencies to estimate annual costs for the state agency to implement the new rule. Thus, Ballotpedia concluded that those states require *limited cost-benefit analysis*.

Some states do not require administrative agencies to perform a cost-benefit analysis before making or changing any rules or regulations. Thus, Ballotpedia concluded that those states *do not require cost-benefit analysis*.

To learn more about Ballotpedia’s survey related to agency dynamics, see here:
Agency dynamics: States that require administrative agencies to conduct a cost-benefit analysis before implementing rules

Want to go further? Learn more about the five pillars of the administrative state here: Administrative state

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Federal Register weekly update: Highest weekly document total since June

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 October 5 to October 9, the Federal Register grew by 1,836 pages for a year-to-date total of 64,374 pages. Over the same period in 2019 and 2018, the Federal Register reached 55,016 pages and 51,814 pages, respectively. As of October 9, the 2020 total led the 2019 total by 9,358 pages and the 2018 total by 12,560 pages.

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

This week’s Federal Register featured the following 612 documents:

• 465 notices
• 16 presidential documents
• 40 proposed rules
• 91 final rules

Two final rules related to railroad track safety standards and textile fiber products identification as well as two proposed rules concerning the practices of market agencies in the business of receiving lambs and the registration of medical services agencies that handle controlled substances 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. The Trump administration in 2020 has issued 27 significant proposed rules, 58 significant final rules, and one significant notice as of October 9.

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: 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: Historical_additions_to_the_Federal_Register,_1936-2018



U.S. Supreme Court to hear four hours of oral argument the week of October 12

The U.S. Supreme Court’s 2020–2021 term begins its second week on October 12, with the court scheduled to hear four hours of oral argument throughout the week. Consistent with the court’s policy in response to the COVID-19 pandemic, all arguments will be made via teleconference with live audio provided.

On October 13, the court will hear two hours of oral argument: one hour in United States v. Briggs (Consolidated with United States v. Collins) and one hour in City of Chicago, Illinois v. Fulton. Briggs originated from the United States Court of Appeals for the Armed Forces and was originally scheduled for argument on March 23, 2020. Fulton originated from the United States Court of Appeals for the 7th Circuit and was originally scheduled for argument on April 20, 2020. The court delayed arguments in both cases due to the coronavirus pandemic.

On October 14, the court will hear an additional two hours of oral argument: one hour in Torres v. Madrid and one hour in Pereida v. Barr. Torres originated from the United States Court of Appeals for the 10th Circuit and Pereida originated from the United States Court of Appeals for the 8th Circuit. Both cases were originally scheduled for argument on March 30, 2020, but were delayed.

These four hours of oral argument will conclude the court’s October sitting. The November sitting begins on November 2 when the court hears oral argument in U.S. Fish and Wildlife Service v. Sierra Club and Salinas v. United States Railroad Retirement Board.

As of October 7, 2020, the court agreed to hear 35 cases during its 2020–2021 term. Of those, 12 were originally scheduled for the 2019–2020 term but were delayed due to the coronavirus pandemic.

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SCOTUS grants review in seven cases for 2020-2021 term

On October 2, 2020, the Supreme Court of the United States (SCOTUS) granted review in seven cases for a total of four hours of oral argument during its October Term for 2020-2021. The cases have not yet been scheduled for argument.

FCC v. Prometheus Radio Project (Consolidated with National Association of Broadcasters v. Prometheus Radio Project)
• The case FCC v. Prometheus Radio Project originated from the U.S. Court of Appeals for the 3rd Circuit and was consolidated with the case National Association of Broadcasters v. Prometheus Radio Project. The consolidated cases concern changes the Federal Communications Commission (FCC) made to media ownership rules and whether the FCC adequately considered the rule changes’ impact on women-owned and minority-owned media.

BP P.L.C. v. Mayor and City Council of Baltimore
• The case BP P.L.C. v. Mayor and City Council of Baltimore originated from the U.S. Court of Appeals for the 4th Circuit. The case concerns the authority of a court of appeals to review issues in removal orders. Justice Samuel Alito recused himself from the case.

Barr v. Dai (Consolidated with Barr v. Alcaraz-Enriquez)
• The case Barr v. Dai originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Barr v. Alcaraz-Enriquez. The consolidated cases concern the Immigration and Nationality Act (INA), specifically relating to the credibility of an immigrant’s testimony before an immigration judge, the Board of Immigration Appeals, and U.S. Circuit Courts of Appeal.

Brnovich v. Democratic National Committee (Consolidated with Arizona Republican Party v. Democratic National Committee)
• The case Brnovich v. Democratic National Committee originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Arizona Republican Party v. Democratic National Committee. The cases concern voting policies in Arizona and Section 2 of the Voting Rights Act.

The Supreme Court began hearing cases for the term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

As of October 7, 2020, the court had agreed to hear 35 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

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President Trump announces judicial nominee

On October 1, President Donald Trump (R) announced the nomination of Joseph Dawson to the U.S. District Court for the District of South Carolina, which is an Article III federal judicial position. Article III judges are appointed by the president, confirmed by the Senate, and serve for life.

Since assuming office in January 2017, Trump has nominated 271 individuals to federal judgeships, 218 of whom have been confirmed. The president nominated 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019.

Since January 2017, the Senate has confirmed 218 of Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

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