CategoryFederal

New CFPB lawsuit raises nondelegation challenge

The New Civil Liberties Alliance (NCLA), a pro bono law firm with a focus on the administrative state, filed a lawsuit on December 19 in the U.S. District Court for the Southern District of New York challenging the constitutionality of the Consumer Financial Protection Bureau (CFPB) on the grounds that Congress unlawfully delegated appropriations power to the agency in violation of the nondelegation doctrine. Prior constitutional challenges to the CFPB, including a case currently pending before the United States Supreme Court, have claimed that the CFPB’s single director is unconstitutionally insulated from removal by the president.

The nondelegation doctrine is a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers can’t allow non-lawmakers to make laws. The case, Law Offices of Crystal Moroney v. Bureau of Consumer Financial Protection, alleges that Congress violated the nondelegation doctrine by granting the CFPB the authority to draw funding directly from the Federal Reserve. This grant of authority, according to NCLA, allows the agency to unilaterally exercise appropriations power and evade oversight from congressional appropriations committees.

The lawsuit also reiterates the claim that the structure of the CFPB is unconstitutional because its single director (rather than multi-member commission) has protections that guard against direct removal by the president. This question is currently pending before the United States Supreme Court in Seila Law v. Consumer Financial Protection Bureau.

The case further alleges that the CFPB violated Crystal Moroney’s due process rights by issuing, withdrawing, and—after a federal court dismissed the case—reissuing civil investigative demands against Moroney’s law firm.

Click here to learn more about the nondelegation doctrine.
Click here to learn more about the appointment and removal power.

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Two 2020 congressional retirements announced last week; 2,149 major party candidates filed for 2020 races

Two U.S. representatives announced last week they will not seek re-election to the U.S. House: Republican Reps. Mark Meadows (NC-11) and Mark Walker (NC-06). That brings the number of Republicans retiring from the House to 25. To date, four senators (three Republicans and one Democrat) and 34 Representatives (25 Republicans and nine Democrats) are not running for re-election. In 2018, 55 total members of Congress—18 Democrats and 37 Republicans—did not seek re-election.

 

As of December 23, 2019, 318 candidates are filed with the Federal Elections Commission (FEC) to run for U.S. Senate in 2020. Of those, 271—143 Democrats and 128 Republicans—are from one of the two major political parties. In 2018, 527 candidates filed with the FEC to run for U.S. Senate, including 137 Democrats and 240 Republicans.

 

For U.S. House, 2,010 candidates are filed with the FEC to run in 2020. Of those, 1,878—928 Democrats and 950 Republicans—are from one of the two major political parties. In 2018, 3,244 candidates filed with the FEC, including 1,566 Democrats and 1,155 Republicans.

 

On November 3, 2020, 35 Senate seats and all 435 House seats are up for election. Of those Senate seats, 33 are regularly scheduled elections, while the other two are special elections in Arizona and Georgia. Twelve are Democratic-held seats and 23 are Republican-held seats. In the House, where all seats are up for election, Democrats currently hold a majority with 233 seats.

 

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Trump OIRA nominee approved by Senate committee; awaits full Senate vote

On December 17, the U.S. Senate Committee on Homeland Security and Governmental Affairs approved Paul Ray, President Trump’s nominee to lead the Office of Information and Regulatory Affairs (OIRA). After approval, Ray’s nomination moved from the committee to await a vote in the full U.S. Senate.

OIRA is a federal agency located within the Office of Management and Budget that reviews regulations, approves government information requests, and provides oversight of statistical and privacy policies. OIRA gives presidents the ability to monitor agency rulemaking. Congress created OIRA in 1980 as part of the Paperwork Reduction Act, which aimed to minimize the information collection burden imposed by administrative agencies.

President Trump nominated Ray to replace Neomi Rao as administrator of OIRA on October 15. Rao joined the U.S. Court of Appeals for the D.C. Circuit in March 2019 and Ray became acting administrator of OIRA at that time. Before leading the agency in an acting capacity, Ray served as associate administrator of OIRA starting in May 2018. Before working for the Trump administration, Ray worked as a clerk for U.S. Supreme Court Justice Samuel Alito and worked as an attorney specializing in administrative law.

To learn more about the Office of Information and Regulatory Affairs or the Office of Management and Budget, see here:

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Federal Register weekly update; average weekly page total declines for fourth week in a row

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 December 9 to December 13, the Federal Register increased by 1,156 pages, bringing the year-to-date total to 68,324 pages. The week’s Federal Register featured a total of 509 documents, including 409 notices, two presidential documents, 34 proposed rules, and 64 final rules.

Two proposed rules 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.

During the same week in 2018, the number of pages in the Federal Register increased by 1,050 pages for a year-to-date total of 64,432 pages. As of December 13, the 2019 total led the 2018 total by 3,892 pages.

The Trump administration has added an average of 1,366 pages to the Federal Register each week in 2019 as of December 13. 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 more information about weekly additions to the Federal Register in 2018 and 2017.

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Click here to find yearly information about additions to the Federal Register from 1936 to 2016.


North Carolina statewide filing deadline is December 20

The statewide filing deadline to run for elected office in North Carolina is on December 20, 2019. In North Carolina, prospective candidates may file for the following offices:
• U.S. Senate
• U.S. House
• Governor
• Lieutenant Governor
• Attorney General
• Secretary of State
• Treasurer
• Superintendent of Public Instruction
• Auditor
• Commissioner of Agriculture
• Commissioner of Labor
• Commissioner of Insurance
• State Senate (all 50 seats)
• State House (all 120 seats)
• State Supreme Court judgeships for Seats 1, 3, and 6
• Five judgeships on the North Carolina Court of Appeals
The primary is scheduled for March 3, and the general election is scheduled for November 3, 2020. In primaries where no candidate receives a majority of the vote, the state’s primary runoff will be held on either April 21 (if no federal office requires a runoff) or May 12 (if a federal office does require a runoff).
North Carolina’s statewide filing deadline is the seventh to take place in the 2020 election cycle. The next statewide filing deadline is on January 10, 2020, in Mississippi.
North Carolina has a divided government. A Democrat, Roy Cooper, holds the governor’s office while Republicans have majorities in both chambers of the state legislature. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.
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U.S. Rep Ted Yoho (R-Fla.) won’t seek re-election in 2020

Rep. Ted Yoho (R-Fla.) announced on December 10, 2019, that he would not seek re-election to the U.S. House in 2020. Yoho said he had pledged to serve no more than four terms.
Yoho was first elected to the U.S. House representing Florida’s 3rd District in 2012. He was the 23rd Republican member of the U.S. House to announce he would not seek re-election in 2020. Nine Democratic representatives had announced they would not seek re-election. In the 2018 election cycle, 52 members of the U.S. House—18 Democrats and 34 Republicans—did not seek re-election.
Currently, Democrats hold a 233-197 majority in the U.S. House with one independent member of the chamber. In November 2020, all 435 seats will be up for election.
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SCOTUS releases first opinion of the 2019-2020 term

On December 10, the U.S. Supreme Court released its first opinion of the 2019-2020 term. In Rotkiske v. Klemm, the court affirmed the decision of the U.S. Court of Appeals for the 3rd Circuit, holding that the Fair Debt Collection Practices Act’s (FDCPA) “statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.” Justice Clarence Thomas wrote the 8-1 opinion. Justice Sonia Sotomayor filed a concurring opinion. Justice Ruth Bader Ginsburg wrote an opinion dissenting in part and dissenting from the judgment. The case was argued on October 16, 2019.
Kevin Rotkiske accumulated credit card debt between 2003 and 2005. His bank referred to Klemm & Associates (Klemm) for collection. In 2009, someone accepted service for a debt collection lawsuit on Rotkiske’s behalf without his knowledge. Klemm obtained a default judgment of approximately $1,500.
Rotkiske discovered the default judgment in 2014. He sued Klemm for violating the FDCPA. Klemm moved to dismiss the claim as untimely. The U.S. District Court for the Eastern District of Pennsylvania granted Klemm’s motion. Rotkiske appealed and the U.S. Court of Appeals for the 3rd Circuit affirmed the district court’s ruling. The 3rd Circuit held Section 1692k(d) of the FDCPA’s “one-year limitations period begins to run when a would-be defendant violates the FDCPA, not when a potential plaintiff discovers or should have discovered the violation.”
In affirming the district court’s ruling, the 3rd Circuit rejected Rotkiske’s argument that the FDCPA incorporates a “discovery rule” that “delays the beginning of a limitations period until the plaintiff knew of or should have known of his injury,” as the 4th Circuit and the 9th Circuit have held. Rotkiske then petitioned the U.S. Supreme Court to review the case, which concluded with this ruling.
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U.S. Supreme Court to review truncated immigration enforcement procedures

The U.S. Supreme Court will decide a case next year that may restrict the ability of the executive branch to use expedited procedures in some asylum cases. At issue is whether asylum seekers may challenge the procedures used by immigration officials to deny an asylum application.
In Department of Homeland Security (DHS) v. Thuraissigiam, the U.S. Supreme Court will review a decision by the 9th Circuit Court of Appeals that allowed a man to challenge in court the expedited procedures that an immigration judge and other executive branch officials used to deny his asylum application.
DHS argues that people who apply to enter and stay in the United States are only entitled to the procedural rights Congress grants to them. The agency also argued that the administrative procedures followed by officials in this case were adequate. Thuraissigiam’s lawyers disagreed, arguing that expedited removal procedures “drastically limit the administrative and judicial review that is ordinarily available.”
Allowing Thuraissigiam to sue in court “hinders the Trump administration’s desire to more quickly deport undocumented immigrants after their requests for asylum have been denied,” according to reporter Robert Barnes writing for The Washington Post. “If full habeas review does not cover expedited-removal cases, ICE agents may soon be able to seize immigrants anywhere in the U.S. and hustle them out of the country without any meaningful procedures,” according to writer Garrett Epps at The Atlantic, discussing the potential impact of the case.
The U.S. Supreme Court is scheduled to hear oral argument in this case on March 2, 2020.
To learn more about the case and adjudication in the administrative state, click here.


U.S. Supreme Court accepts new case about Delaware judicial selection

On December 6, the U.S. Supreme Court agreed to hear the case Carney v. Adams, which concerns judicial selection in Delaware, during its October 2019-2020 term. As of December 9, 2019, the court had agreed to hear 58 cases this term.
As of December 2019, when the governor of Delaware filed a petition before the U.S. Supreme Court, Article IV, Section 3 of the Delaware Constitution required that no more than the bare majority of judges on a given Delaware court could be of the same political party. A bare majority is one where the majority party has a one-seat advantage compared to the minority party. On a five-member court, for example, a bare majority would be a 3-2 majority.
James Adams, a retired lawyer, sued the governor of Delaware in federal district court. Adams argued the state’s bare majority requirement “violate[d] his First Amendment right to be considered for public office without regard to his political affiliation.” The governor, in response, argued Adams did not have the legal right to file a lawsuit. A federal magistrate judge ruled the bare majority requirement was unconstitutional.
The governor appealed to the United States Court of Appeals for the 3rd Circuit. In April 2019, a three-judge panel affirmed in part and reversed in part the federal district court’s ruling. The circuit court ruled that the bare majority provision violated the First Amendment. However, it also ruled Adams did not have the legal right, or standing, to challenge certain sections of Article IV, Section 3.
Governor John Carney (D), acting in his official capacity, filed a petition with the U.S. Supreme Court. In the petition, the governor argued the 3rd Circuit’s ruling conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit. The governor also argued SCOTUS should “reaffirm that federal courts are obligated to respect the States’ sovereign authority to structure their own governments, including by setting qualifications for state judges.”
The issues in this case are: (1) Does the First Amendment invalidate the state’s constitutional bare majority requirement? (2) Was the 3rd Circuit’s ruling in the case incorrect? (3) Does Adams have a demonstrated legal right to sue the government?
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Trump administration proposes new independent agency to manage federal student aid

U.S. Department of Education Secretary Betsy DeVos proposed establishing a new independent federal agency to manage the federal student loan program. DeVos argued that the U.S. Department of Education’s Office of Federal Student Aid (FSA), which manages the federal government’s $1.5 trillion student loan portfolio, was not created to function as an apolitical bank, despite congressional policy expectations.
“FSA’s mission is to serve students and families, but its structure is set up to serve politicians and their policies,” DeVos told attendees at the department’s annual conference.
The proposal would move the student loan management responsibilities of the FSA to a new, independent federal agency “run by a professional, expert and apolitical board of governors,” according to DeVos.
Congressional action would be required to implement DeVos’ proposal. House Education and Labor Chairman Bobby Scott (D-Va.) issued a statement arguing that the FSA should be able to operate apolitically as it is currently structured.
An independent federal agency is an administrative agency that operates with some degree of autonomy from the executive branch. These agencies may be established outside of the Executive Office of the President or the 15 executive departments. Top officials at independent federal agencies may also have cause removal protections, which aim to insulate agencies from political interference by the president or other elected officials.
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