CategoryFederal

U.S. Senate confirms Court of Federal Claims nominee

On December 19, 2020, the U.S. Senate confirmed Thompson Michael Dietz to the United States Court of Federal Claims by a vote of 51–36. He was nominated to the court by President Donald Trump (R) on July 2, 2020, and will join the court upon receiving his judicial commission and taking his judicial oath. Dietz was nominated to replace Judge Victor J. Wolski, who assumed senior status on July 13, 2018.

The United States Court of Federal Claims is an Article I tribunal, a federal court organized under Article I of the U.S. Constitution.

After Dietz receives his judicial commission, the 16-member Court of Federal Claims will have:

  • Five vacancies
  • Eight Republican-appointed judges
  • Three Democrat-appointed judges

In addition to Dietz, President Trump has appointed seven judges to the court. Another five Trump-appointed nominees are pending. President Barack Obama (D) appointed three judges to the court.

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Trump announces 15 pardons, five commutations

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On Dec. 22, President Donald Trump (R) issued 15 pardons and five commutations. Those pardoned included former Trump campaign aide George Papadopoulos and former congressmen Duncan Hunter (R-Calif.), Chris Collins (R-N.Y.), and Steve Stockman (R-Texas).

President Trump has issued 43 pardons and 21 commutations while in office. Of those, Trump issued 28 pardons and 15 commutations in fiscal years 2020 and 2021.

By comparison, President Barack Obama (D) issued 212 pardons and 1,715 commutations during his eight-year term. The last one-term president, George H.W. Bush (R), issued 74 pardons and three commutations.

Between fiscal years 1902 and 2021, presidents issued 14,233 pardons and 6,568 commutations. Democrats have issued more of both (8,393 pardons and 4,103 commutations) than Republicans (5,840 pardons and 2,465 commutations). These figures do not include instances of mass pardons such as in 1974 when President Ford pardoned individuals who evaded the draft during the Vietnam War.

The U.S. Constitution, in Article II, Section 2, grants the president the power of executive clemency. Executive clemency includes the power to pardon, in which the president overturns a federal conviction and restores “an individual to the state of innocence that existed before the conviction,” and the power of commutation, which allows a president to shorten or reduce a federal prison sentence. Executive clemency is limited to federal offenses.



U.S. Senate confirms nominee to U.S. District Court for Central District of California

The U.S. Senate confirmed Fernando Aenlle-Rocha to the United States District Court for the Central District of California by a vote of 80-8. After he receives his federal judicial commission and takes his judicial oath, the 28-member court will have nine Democrat-appointed judges, 13 Republican-appointed judges, and six vacancies. Aenlle-Rocha will join three other judges appointed by President Donald Trump (R).

The Central District of California is one of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

Aenlle-Rocha previously served as a judge on the Superior Court of Los Angeles County in California. He was appointed by Gov. Jerry Brown (D) on May 22, 2017, and elected to the court in 2018.

Aenlle-Rocha was born in Cuba in 1961. He received his B.A. from Princeton University in 1983 and his J.D. from the University of California, Berkeley, School of Law in 1986.

The U.S. Senate has confirmed 234 of Trump’s Article III judicial nominees—three Supreme Court justices, 54 appellate court judges, 174 district court judges, and three U.S. Court of International Trade judges—since January 2017.

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SCOTUS accepts cases concerning federal antitrust laws, NCAA compensation rules

On December 16, 2020, the Supreme Court of the United States granted review in the consolidated cases National Collegiate Athletic Association (“NCAA”) v. Alston and American Athletic Conference v. Alston for a total of one hour of oral argument during its 2020-2021 October Term. The cases originated from the U.S. Court of Appeals for the 9th Circuit and have not yet been scheduled for argument before SCOTUS.

The cases: In 2014, a class of Division 1 (“D1″) student-athletes, collectively referred to as “Alston” and as “student-athletes,” filed several antitrust complaints against the National Collegiate Athletic Association (“NCAA”) and 11 D1 conferences in federal district court, challenging the NCAA’s compensation rules for student-athletes. The NCAA claimed that the challenge was settled in a previous case, O’Bannon v. NCAA. The Northern District of California ordered the NCAA make its compensation rules less restrictive for student-athletes and ruled that the compensation rules in their iteration at that time were unlawful restraints of trade under the Sherman Antitrust Act (“Sherman Act”). On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed the district court’s conclusion, order, and its assessment of liability. The NCAA appealed to the Supreme Court.

The issue (NCAA v. Alston): Whether the 9th Circuit’s holding that the NCAA eligibility rules regarding student-athletes’ compensation violate federal antitrust law was in error.

The issue (American Athletic Conference v. Alston): “Whether the Sherman Act authorizes a court to subject the product-defining rules of a joint venture to full Rule of Reason review, and to hold those rules unlawful if, in the court’s view, they are not the least restrictive means that could have been used to accomplish their procompetitive goal.”

The outcome: The appeals are pending adjudication before the U.S. Supreme Court.

The Supreme Court began hearing cases for the term on October 5, 2020. As of December 21, the court had agreed to hear 49 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. The court had issued opinions in 10 cases this term. Four cases were decided without argument.

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Biden announces picks for heads of Interior, Energy, and EPA

On Dec. 17, President-elect Joe Biden announced his picks for secretaries of energy and the interior, and administrator of the Environmental Protection Agency. These announcements leave five remaining Cabinet-level positions in the Biden administration without announced nominees.

Biden nominated former Michigan Gov. Jennifer Granholm (D) as Secretary of Energy. She served as governor from 2003 to 2011 and since has worked as an adjunct professor of law and public policy at the University of California-Berkeley, a senior advisor to The Pew Charitable Trusts’ Clean Energy Program, and a contributor on political talk shows.

Biden nominated U.S. Rep. Debra Haaland (D-N.M.) as Secretary of the Interior. An enrolled member of the Pueblo of Laguna, Haaland would be the first person of Native American descent to serve in this position. In the 116th Congress, Haaland served on the natural resources and armed services committees.

Biden nominated Michael Regan, North Carolina’s secretary of environmental quality, as administrator of the Environmental Protection Agency (EPA). Regan worked for the EPA under the Clinton and Bush administrations from 1998 to 2008. He would be the first Black man to serve in this position.

The five remaining Cabinet-level positions without announced nominees are Attorney General, Commerce, Labor, Education, and Small Business Administration.



U.S. Supreme Court declines to rule on merits of census case

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The U.S. Supreme Court (SCOTUS) issued an unsigned 6-3 opinion in Trump v. New York. The case was argued on Nov. 30, 2020, and concerned congressional apportionment following the 2020 U.S. Census. The U.S. government asked SCOTUS to consider if the president could order the U.S. Secretary of Commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.

In a 6-3 per curiam opinion, in which the authorship is not indicated, the court vacated the U.S. District Court for the Southern District of New York’s ruling. The court held the coalition of state and local governments and NGOs did not have standing—the legal right to sue—in this case. The court did not rule on the merits.

Justice Stephen Breyer dissented, joined by Justices Sonia Sotomayor and Elena Kagan. Breyer argued the plaintiffs had standing and that court precedent, law, and historical practice “demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. The Government’s effort to remove them from the apportionment base is unlawful, and I believe this Court should say so.”

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U.S. Senate confirms two nominees to federal judgeships

The U.S. Senate has confirmed two nominees to federal district court judgeships. The 94 U.S. District Courts are the general trial courts of the United States federal courts.

The U.S. Senate has confirmed 232 of President Trump’s Article III judicial nominees—three Supreme Court justices, 54 appellate court judges, 172 district court judges, and three U.S. Court of International Trade judges—since January 2017.

The nominees are:

• Katherine Crytzer, confirmed to the U.S. District Court for the Eastern District of Tennessee by a 48-47 vote. After she receives her federal judicial commission and takes her judicial oath, the five-member court will have one Democrat-appointed judge, three Republican-appointed judges, and one vacancy. Crytzer will join one other judge appointed by President Trump.

• Joseph Dawson, confirmed to the U.S. District Court for the District of South Carolina by a 56-39 vote. After he receives his federal judicial commission and takes his judicial oath, the 10-member court will have five Democrat-appointed judges, five Republican-appointed judges, and no vacancies. Dawson will join two other judges appointed by President Trump.

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Thomas Kirsch confirmed to U.S. Court of Appeals for the 7th Circuit

The U.S. Senate confirmed nominee Thomas Kirsch to the U.S. Court of Appeals for the 7th Circuit. He was nominated to the court by President Donald Trump (R) on November 16, 2020, and confirmed by a 51-44 vote of the U.S. Senate on December 15, 2020. He will join the court upon receiving his judicial commission and taking his judicial oath. He replaces judge Amy Coney Barrett. 

Kirsch previously served as the United States attorney for the Northern District of Indiana from 2017 to 2020.

The U.S. Senate has confirmed 232 of President Trump’s Article III judicial nominees—three Supreme Court justices, 54 appellate court judges, 172 district court judges, and three U.S. Court of International Trade judges—since January 2017.

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In five elections since 1920, the winning presidential candidate’s party has lost seats in the U.S. House

On Dec. 14, 2020, the Electoral College cast votes for president and vice president of the United States. Joe Biden (D) won 306 electoral votes, defeating President Donald Trump (R) who won 232. In the same 2020 election cycle, Biden’s Democratic party lost 13 U.S. House seats (one race remains uncalled). How many times has a winning presidential candidate’s party lost U.S. House seats in modern American history?

Since 1920, there have been five presidential election years where where the winning presidential candidate’s party lost U.S. House seats. In all of these cases, the party that lost seats in the House maintained the majority it had going into the election.

The greatest loss of seats in the House by a party that won the presidency happened in 1960. That year, John F. Kennedy (D) won the White House for Democrats and the party lost 21 House seats.

The three other cases all occurred after 1990:

  1. In 1992, Bill Clinton (D) won the White House and the Democratic Party lost nine seats in the House.
  2. In 2000, George W. Bush (R) won the White House and the Republican Party lost two seats in the House.
  3. In 2016, Donald Trump (R) won the White House and the Republican Party lost six seats in the House.

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Federal Register weekly update: Highest final rule count since October

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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 14 to December 18, the Federal Register grew by 2,290 pages for a year-to-date total of 82,870 pages. Over the same period in 2019 and 2018, the Federal Register reached 70,392 pages and 66,076 pages, respectively. As of December 18, the 2020 total led the 2019 total by 12,478 pages and the 2018 total by 16,794 pages. 

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

This week’s Federal Register featured the following 609 documents:

  • 473 notices
  • eight presidential documents
  • 43 proposed rules
  • 85 final rules

One proposed rule concerning energy conservation standards and two final rules regarding express loan programs and egg products inspection 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 33 significant proposed rules, 71 significant final rules, and one significant notice as of December 18.

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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