CategoryFederal

Unanimous U.S. Supreme Court rules that FCC changes to broadcast ownership regulations passed the arbitrary-or-capricious test

On April 1, the U.S. Supreme Court issued an opinion in _FCC v. Prometheus Radio Project_, a case about how courts should review the actions administrative agencies take. The court ruled unanimously that the Federal Communications Commission (FCC) did not violate the Administrative Procedure Act’s (APA) arbitrary-or-capricious test and that the agency properly considered the effects of its orders when it changed certain broadcast ownership rules in 2017.

Justice Brett Kavanaugh delivered the opinion of the court, writing, “Judicial review under [the arbitrary-or-capricious] standard is deferential, and a court may not substitute its own policy judgment for that of the agency. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.”

The arbitrary-or-capricious test is a legal standard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946 APA that 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.”

Kavanaugh held that the 2017 FCC order was reasonable and reasonably explained and that the APA requires no more from agencies.

The case came out of 17 years of attempts by the FCC to change regulations that govern ownership of broadcast media and involved whether the FCC adequately considered how its rule changes would affect broadcast media firms owned by women or minorities.

Justice Clarence Thomas wrote a concurring opinion arguing that federal courts do not have legal authority to require the FCC to consider ownership diversity.

To learn more about the case or the arbitrary-or-capricious test, see here:

Additional Reading:

Text of the SCOTUS decision:

https://www.supremecourt.gov/opinions/20pdf/19-1231_i425.pdf



A look back at government responses to the coronavirus pandemic, April 6-10, 2020

Although the first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020, it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. 

Here are the policy changes that happened April 6-10, 2020. This list is not comprehensive.

Monday, April 6, 2020:

  • Stay-at-home orders:
    • The “Stay Home Missouri” order took effect in Missouri. It directed individuals in the state to stay home unless performing essential activities and placed restrictions on non-essential businesses. Governor Mike Parson (R) and Director of the Department of Health and Senior Services Randall Williams issued the order on April 3, and it was originally set to expire on April 24, 2020.
  • School closures:
    • Arkansas Gov. Asa Hutchinson (R) closed schools for the remainder of the academic year. Prior to this order, schools in the state were closed through April 17.
    • New York Gov. Andrew Cuomo (D) extended the statewide school closure from April 15 to April 29.
  • Election changes:
    • The Wisconsin state supreme court voted 4-2 to block an executive order issued earlier in the day by Governor Tony Evers (D) postponing in-person voting in the spring election, scheduled for April 7, 2020, to June 9. As a result, in-person voting was set to take place as scheduled on April 7.
    • Texas Governor Greg Abbott (R) issued an order authorizing political parties that nominate by convention to postpone those conventions or conduct them remotely.

Tuesday, April 7, 2020

  • Stay-at-home orders:
    • Executive Order 2020-21 took effect in South Carolina. The order directed individuals in South Carolina to stay home except for essential activities and closed nonessential businesses in the state. Gov. Henry McMaster (R) issued the order April 6. South Carolina was the last state to implement a stay-at-home order. In total, 43 states issued stay-at-home orders.
  • School closures:
    • Maine Gov. Janet Mills (D) recommended that schools in the state remain closed for the rest of the academic year.
    • Montana Gov. Steve Bullock (D) extended the statewide school closure from April 10 to April 24.

Wednesday, April 8, 2020

  • Travel restrictions
    • Utah Gov. Gary Herbert (R) issued an order requiring all visitors over 18 entering Utah through airports or roadways to complete a travel declaration within three hours. He said drivers entering Utah would receive a text message with a link to the form. Travelers in airports would receive a card from an airport employee with instructions to fill out a form online. The form required travelers to answer a number of questions related to COVID-19 symptoms and travel history.
  • School closures:
    • Oregon Gov. Kate Brown (D) closed schools for the remainder of the academic year. Prior to the announcement, schools were closed through April 28.
  • Election changes:
    • New York Governor Andrew Cuomo (D) announced that he would issue an executive order suspending existing eligibility criteria for absentee voting, allowing all voters to cast their ballots by mail in the June 23, 2020, election.
    • Virginia Governor Ralph Northam (D) postponed the statewide primary, originally scheduled for June 9, 2020, to June 23.
  • Federal government responses:
    • The U.S. Department of Health and Human Services announced a $500 million contract with General Motors to produce 30,000 ventilators under the Defense Production Act.

Thursday, April 9, 2020

  • Travel restrictions
    • Arizona Gov. Doug Ducey (R) ordered all people traveling to Arizona from areas of the country with widespread COVID-19 cases to self-quarantine for 14 days. The order specifically mentioned Connecticut, New York, and New Jersey as areas with significant community spread. 
  • School closures:
    • Alaska Gov. Mike Dunleavy (R) closed schools for the remainder of the academic year. Prior to the announcement, schools were closed through May 1.
    • Pennsylvania Gov. Tom Wolf (D) closed schools for the remainder of the academic year. Prior to the announcement, schools had been closed indefinitely from March 16.
  • Election changes:
    • Georgia Secretary of State Brad Raffensperger (R) postponed Georgia’s statewide and presidential primaries to June 9, 2020, and its primary runoff to August 11. The state had previously postponed its presidential primary to May 19, the original date of its statewide primary.

Friday, April 10, 2020

  • Election changes:
    • Washington, D.C., Mayor Muriel Bowser (D) signed B23-0733 into law, directing the district’s election officials to send absentee ballot applications to all registered voters in advance of the June 2, 2020, primary election.
    • New Hampshire Secretary of State William Gardner (D) and Attorney General Gordon MacDonald (R) released a memo to election officials advising them that any voter in the September 8, 2020, primary or November 3, 2020, general election could request an absentee ballot based on concerns related to COVID-19.
    • Maine Governor Janet Mills (D) issued Executive Order No. 39 FY 19/20, postponing the statewide primary election, originally scheduled for June 9 to July 14.
  • Federal government responses:
    • Trump announced he was forming a new council to discuss the process of reopening the U.S. economy. Trump referred to the group as the Opening Our Country Council and said members would be announced on April 14.

For the most recent coronavirus news, including the latest on vaccines and mask mandates, subscribe to our daily newsletter, Documenting America’s Path to Recovery.



U.S. Supreme Court issues rulings in three cases

The Supreme Court of the United States (SCOTUS) issued opinions in three cases argued during the 2020-2021 term on April 1. 

Florida v. Georgia

The case came to the court under its original jurisdiction over disputes between states and concerned the apportionment of waters of the Apalachicola-Chattahoochee-Flint River Basin. In 2013, Florida filed a complaint against Georgia, alleging that Georgia’s water use was inequitable. Florida v. Georgia was first argued before SCOTUS on Jan. 8, 2018, during the October 2017 term. On June 27, 2018, the court sent the case back to the lower court for reconsideration in a 5-4 decision written by Justice Stephen Breyer.

The case’s second argument took place this term on Feb. 22, 2021. In a unanimous ruling, the court overruled Florida’s exceptions to the Special Master’s Report and dismissed the case. Justice Amy Coney Barrett delivered the majority opinion of the court.

FCC v. Prometheus Radio Project (consolidated with National Association of Broadcasters v. Prometheus Radio Project)

These consolidated cases originated from the U.S. Court of Appeals for the 3rd Circuit and were argued before SCOTUS on Jan. 19, 2021. The cases involve whether the FCC adequately considered how its rule changes would affect broadcast media firms owned by women or minorities, and asked SCOTUS whether the 3rd Circuit was right to block some of the FCC’s choices on those grounds.

In a 9-0 decision, the court reversed the 3rd Circuit’s judgment, holding that the FCC’s rule changes were not arbitrary or capricious under the Administrative Procedure Act. Justice Brett Kavanaugh delivered the majority opinion of the court. Justice Clarence Thomas filed a concurring opinion.

Facebook v. Duguid

This case originated from the U.S. Court of Appeals for the 9th Circuit and concerned the definition of an automated telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA). The case was argued before SCOTUS on Dec. 8, 2020.

Social media website Facebook allows users to receive text message alerts when their accounts are accessed from unknown devices or browsers. Noah Duguid did not have a Facebook account and never consented to receive those alerts. He sued Facebook after receiving multiple text messages and attempting to opt-out. Duguid claimed Facebook violated the TCPA’s ban on calling or sending text messages to cell phones using an ATDS. The U.S. district court dismissed the lawsuit. On appeal, the 9th Circuit reversed the district court’s ruling.

In a unanimous opinion, SCOTUS reversed the 9th Circuit’s ruling and remanded the case for further proceedings, holding that a device must be able to store or produce a telephone number using a random or sequential number generator in order to be considered an automated telephone dialing system under the TCPA. Justice Sonia Sotomayor delivered the majority opinion of the court. Justice Samuel Alito filed a concurring opinion.

To date, the court has issued opinions in 25 cases this term. Five cases were decided without argument. 

Additional Reading:



SCOTUS concludes March sitting

The Supreme Court of the United States (SCOTUS) concluded its March sitting for its 2020-2021 term on March 31. This sitting ran from March 22 through March 31, during which time the court heard six hours of oral argument. The cases argued before SCOTUS during its March sitting included:

• March 22: Cedar Point Nursery v. Hassid

• March 23: United States v. Cooley

• March 24: Caniglia v. Strom

• March 29: Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System

• March 30: TransUnion LLC v. Ramirez

• March 31: National Collegiate Athletic Association v. Alston (consolidated with American Athletic Conference v. Alston)

The court is currently slated to hear 12 hours of oral argument during its April sitting scheduled from April 19 through April 28, and one hour of oral argument during its May sitting on May 4. SCOTUS began hearing cases for the 2020-2021 term on October 5, 2020. Its 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 March 29, 2021, the court had agreed to hear 63 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. Five cases were removed from the argument calendar and one case was postponed.

Additional Reading:



Rita Hart (D) withdraws contest of IA-02 election results

On Wednesday, March 31, Rita Hart (D) dropped her petition with the House Administration Committee to investigate the Nov. 3, 2020, election in Iowa’s 2nd Congressional District. Mariannette Miller-Meeks (R) defeated Hart by six votes in that race. House Administration Committee Chair Rep. Zoe Lofgren (D) said the committee would suspend its investigation of the election.

After announcing the decision, Hart said that she chose to end her challenge “after many conversations with people I trust about the future of this contest.” “Despite our best efforts to have every vote counted, the reality is that the toxic campaign of political disinformation to attack this constitutional review of the closest congressional contest in 100 years has effectively silenced the voices of Iowans,” she said.

After the Nov. 3, 2020, general election, Iowa officials conducted three recounts of the results in the 2nd district. Iowa Secretary of State Paul Pate (R) ordered a recount in Jasper County on Nov. 6 and then another in Lucas County on Nov. 10. On Nov. 13, Hart requested a full recount of votes in all 24 counties in the district. After this last recount, Miller-Meeks was certified as the winner by a margin of six votes on Nov. 30.

On Dec. 2, Hart announced she would contest the election with the House Administration Committee. She submitted a notice of contest on Dec. 22 that said 11 ballots were excluded due to poll worker errors and another 11 were excluded because of unsealed or damaged envelopes, having the voter’s signature in the wrong place, or being left in a drop box outside the county. Miller-Meeks was provisionally seated in the House on Jan. 3, and on Jan. 21, she filed a motion asking Congress to dismiss Hart’s challenge of the election results, saying that Hart should have pursued the matter through state procedures rather than filing a petition with the House.

On Mar. 10, the House Administration Committee voted 6-3 to consider Hart’s challenge and table Miller-Meeks’ motion to dismiss Hart’s challenge. After the decision to move forward with the investigation was announced, Senate Minority Leader Mitch McConnell (R) said Democrats are “literally trying to overturn a state-certified election here in Congress.” Some Democrats, such as Minnesota Rep. Dean Phillips (D), said overturning the results would be a mistake. “Overturning it in the House would be even more painful for America. Just because a majority can, does not mean a majority should,” Phillips said.

Last year’s general election in Iowa’s 2nd District had the narrowest margin of victory in a U.S. House race since 1984. That year, Francis McCloskey (D) defeated Richard McIntyre (R) by four votes in Indiana’s 8th Congressional District. The House Administration Committee has dismissed most contested election cases that have come before it. According to a 2016 Congressional Research Service report, out of 107 contested election cases filed between 1933 and 2009, the candidate who contested the election won three times. 

Additional reading:



SCOTUS accepts case, issues opinion

On March 29, the Supreme Court of the United States (SCOTUS) released orders from its conference that was held on Friday, March 26. The court issued an opinion in one case that was not argued before the court and accepted one case to its merits docket for the 2021-2022 term.

The court accepted and issued a per curiam ruling in the case Mays v. Hines, which originated from the U.S. Court of Appeals for the 6th Circuit. Per curiam decisions are unsigned. The court reversed the 6th Circuit’s ruling that granted a new trial to Anthony Hines, who had been convicted of murder and sentenced to the death penalty. Justice Sonia Sotomayor filed a dissenting opinion.

As of March 29, the court had issued opinions in 22 cases for the 2020-2021 team. Five cases were decided without argument.

SCOTUS accepted a new case to be argued during the upcoming October Term for 2021-2022, Cameron v. EMW Women’s Surgical Center, P.S.C. The case originated in the 6th Circuit and concerns whether a state official may intervene in a case to defend a state law that has been invalidated by a federal circuit court and Fourteenth Amendment protections related to a woman’s right to choose whether or not to have an abortion procedure. 

As of March 29, the court had agreed to hear 11 cases during the next term.

Additional Reading:



Federal judge strikes down 5% petition requirement for minor-party and unaffiliated U.S. House candidates in Georgia

On March 29, 2021, Judge Leigh Martin May, of the U.S. District Court for the Northern District of Georgia, struck down a Georgia law requiring minor-party and unaffiliated candidates for the U.S. House of Representatives to submit petitions signed by at least 5 percent of the district’s registered voters in order to appear on the ballot. May ruled this requirement “overburdens [voters’ and candidates’] rights to vote and to associate with their preferred political party, and so it violates the First and Fourteenth Amendments.”

May contrasted the 5-percent signature requirement for U.S. House candidates with the 1-percent requirement for statewide candidates, “The [Georgia] General Assembly has deemed a 1% petition signature requirement adequate to guard against ballot crowding and frivolous candidacies on a statewide basis. It is not immediately clear why candidates for non-statewide office must clear a proportionally higher hurdle, the 5% petition signature requirement. [The state] has not offered any explanation for this disparity.” 

May has not yet ordered a remedy. She directed the plaintiffs (the Libertarian Party of Georgia) to submit a brief within three weeks on proposed remedies. The state will then have an opportunity to respond to this proposal before May issues further guidance. 

Under the 5-percent signature requirement, originally enacted in 1943, no minor-party candidate for the U.S. House has qualified for placement on the general election ballot. In 2020, minor-party or unaffiliated candidates would have needed between 19,777 and 26,539 signatures in order to qualify for the ballot (the number varies by congressional district). 

It is not clear whether the state will appeal the decision.

Additional Reading:



Congressional resolution would reverse Trump-era rule about how banking laws apply to certain loans

On March 25 and 26, 2021, U.S. Senator Chris Van Hollen (D-Md.) and U.S. Representative Jesus Garcia (D-Ill.) introduced companion resolutions in the U.S. Senate and U.S. House of Representatives under the Congressional Review Act (CRA) to block a rule made by the U.S. Comptroller of the Currency (OCC) in October 2020. 

The rule, published in the Federal Register on October 30, 2020, aims to clarify when banks are the true lender in situations where banks provide the money for third-party organizations to extend credit to borrowers. 

The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Both houses of Congress have to pass a resolution disapproving the OCC rule and President Biden would then have to sign that resolution into law to block the rule. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

The OCC rule went into effect on December 29, 2020. A recent edition of the Congressional Record clarified that Congress has 60 days from February 3, 2021, to use the CRA to block regulatory activity taken near the end of the Trump administration. Rules published by the Trump administration after August 21, 2020 fall within the CRA lookback window.

The U.S. Senate version of the resolution has the following 6 cosponsors: Sherrod Brown (D-Ohio), Jack Reed (D-R.I.), Elizabeth Warren (D-Mass), Catherine Cortez Mastro (D-Nev.), Tina Smith (D-Minn.), and Dianne Feinstein (D-Calif.) 

The U.S. House version of the resolution has no cosponsors. 

To learn more about the Congressional Review Act and its use, see here: https://ballotpedia.org/Congressional_Review_Act

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act: https://ballotpedia.org/Journey:_Congressional_Review_Act

Additional reading:

Link to the U.S. Senate CRA resolution:

https://www.congress.gov/bill/117th-congress/senate-joint-resolution/15/text?r=2&s=5

Link to the U.S. House of Representatives CRA resolution:

https://www.congress.gov/bill/117th-congress/house-joint-resolution/35?s=5&r=2

Text of the OCC rule:

https://www.federalregister.gov/documents/2020/10/30/2020-24134/national-banks-and-federal-savings-associations-as-lenders

Link to Van Hollen’s press release:

https://www.vanhollen.senate.gov/news/press-releases/van-hollen-brown-garcia-announce-congressional-review-act-legislation-to-repeal-trump-era-rent-a-bank-rule

Link to Garcia’s press release:

https://chuygarcia.house.gov/media/press-releases/representative-garc-senators-van-hollen-brown-announce-congressional-review-act

Link to the Congressional Record:

https://www.govinfo.gov/content/pkg/CREC-2021-02-03/pdf/CREC-2021-02-03-house.pdf



Congressional resolution would reverse Trump-era rule about company shareholder proposals

On March 25 and 26, 2021, U.S. Senator Sherrod Brown (D-Ohio) and Delegate Michael F.Q. San Nicolas (D-Guam) introduced companion resolutions in the U.S. Senate and U.S. House of Representatives under the Congressional Review Act (CRA) to block a rule made by the U.S. Securities and Exchange Commission (SEC) in November 2020. 

The rule, published in the Federal Register on November 4, 2020, changed regulations governing who may submit shareholder proposals and increased the amount of support proposals would have to receive to be eligible for resubmission at future shareholder meetings.

The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Both houses of Congress have to pass a resolution disapproving the SEC rule and President Biden would then have to sign that resolution into law to block the rule. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

The SEC rule went into effect on January 4, 2021. A recent edition of the Congressional Record clarified that Congress has 60 days from February 3, 2021, to use the CRA to block regulatory activity taken near the end of the Trump administration. Rules published by the Trump administration after August 21, 2020 fall within the CRA lookback window.

To learn more about the Congressional Review Act and its use, see here: https://ballotpedia.org/Congressional_Review_Act

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act: https://ballotpedia.org/Journey:_Congressional_Review_Act

Additional reading:

Link to the U.S. Senate CRA resolution:

https://www.congress.gov/bill/117th-congress/senate-joint-resolution/16/text?r=1&s=5

Link to the U.S. House of Representatives CRA resolution:

https://www.congress.gov/bill/117th-congress/house-joint-resolution/36?s=5&r=1

Text of the SEC rule:

https://www.federalregister.gov/documents/2020/11/04/2020-21580/procedural-requirements-and-resubmission-thresholds-under-exchange-act-rule-14a-8

Link to the _Reuters_ article:

https://www.reuters.com/article/us-usa-senate-proxy/u-s-senate-democrats-aim-to-undo-trump-era-shareholder-voting-rights-rule-idUKKBN2BI2BS

Link to the Congressional Record:

https://www.govinfo.gov/content/pkg/CREC-2021-02-03/pdf/CREC-2021-02-03-house.pdf



Congressional resolution would reverse Trump-era HHS rule that added sunset dates to agency regulations

On March 25 and 26, 2021, U.S. Representative Raja Krishnamoorthi (D-Ill.) introduced a resolution in the U.S. House of Representatives under the Congressional Review Act (CRA) to block a rule made by the U.S. Department of Health and Human Services (HHS) in January 2021. 

The rule, published in the Federal Register the day before Joe Biden’s (D) inauguration, set expiration, or sunset, dates for HHS regulations that apply unless the agency reviews those regulations according to the requirements of the Regulatory Flexibility Act (RFA). HHS said the rule would “ensure evidence-based regulation that does not become outdated as conditions change.”

The RFA is a 1980 law that requires federal agencies to consider the effects of regulation on small entities such as small businesses, nonprofit organizations, and local governments. The RFA directs agencies to consider regulatory alternatives for small entities and to consider their input and needs during the rulemaking process.

Opponents of the HHS rule argue that the rule violates the Administrative Procedure Act (APA). According to a lawsuit filed in the U.S. District Court for the Northern District of California, the rule also “creates immediate uncertainty and instability throughout the healthcare system at the very time that the public most needs clear guidelines due to a global pandemic.”

On March 23, HHS issued a new final rule postponing the effective date for the sunset rule in response to pending judicial review.

The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Both houses of Congress have to pass a resolution disapproving the HHS rule and President Biden would then have to sign that resolution into law to block the rule. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.

A recent edition of the Congressional Record clarified that Congress has 60 days from February 3, 2021, to use the CRA to block regulatory activity taken near the end of the Trump administration. Rules published by the Trump administration after August 21, 2020 fall within the CRA lookback window.

Rep. Anna Eshoo (D-Calif.) cosponsored the resolution in the U.S. House of Representatives.

To learn more about the Congressional Review Act and its use, see here: https://ballotpedia.org/Congressional_Review_Act

Want to go further? Sign up today for our Learning Journey on the Congressional Review Act: https://ballotpedia.org/Journey:_Congressional_Review_Act

Additional reading:

Link to the U.S. House of Representatives CRA resolution:

https://www.congress.gov/bill/117th-congress/house-joint-resolution/37/cosponsors?r=1&s=5&searchResultViewType=expanded

Text of the HHS sunset rule:

https://www.federalregister.gov/documents/2021/01/19/2021-00597/securing-updated-and-necessary-statutory-evaluations-timely

Text of lawsuit against HHS sunset rule:

https://democracyforward.org/wp-content/uploads/2021/03/County-of-Santa-Clara-et-al.-v.-HHS-et-al.-Complaint-3.9.21.pdf

Text of the HHS rule postponing the sunset rule:

https://www.federalregister.gov/documents/2021/03/23/2021-05907/securing-updated-and-necessary-statutory-evaluations-timely-administrative-delay-of-effective-date

Link to the Congressional Record:

https://www.govinfo.gov/content/pkg/CREC-2021-02-03/pdf/CREC-2021-02-03-house.pdf