CategoryNewsletters

Welcome to the July 1 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. 

Opinions

SCOTUS has ruled on 23 cases since our June 17 issue. The court has finished issuing rulings in the 69 cases it heard this term. Click here to read more about SCOTUS’ 2018-2019 term.

 Click the links below to read more about the specific cases SCOTUS ruled on since June 17:

June 17

• Manhattan Community Access Corp. v. Halleck

• Virginia Uranium v. Warren

• Gamble v. U.S.

• Virginia House of Delegates v. Bethune-Hill

June 20

• Gundy v. United States

• McDonough v. Smith

• The American Legion v. American Humanist Association

• PDR Network, LLC v. Carlton & Harris Chiropractic Inc.

June 21

• Flowers v. Mississippi

• North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust

• Rehaif v. United States

• Knick v. Township of Scott, Pennsylvania

June 24

• United States v. Davis

• Food Marketing Institute v. Argus Leader Media

• Iancu v. Brunetti
• The Dutra Group v. Batterton

June 26

• United States v. Haymond

• Kisor v. Wilkie

• Tennessee Wine & Spirits Retailers Association v. Byrd

June 27

• Mitchell v. Wisconsin

• Rucho v. Common Cause 

• Lamone v. Benisek – Click here to subscribe to The Ballot Bulletin for more information on Rucho and Lamone.

• Department of Commerce v. New York – Click here to subscribe to Checks and Balances for more information on this case. 

Looking back at the 2018 term

• Cases: The court issued decisions in 68 of the 69 cases it heard this term. The court scheduled Carpenter v. Murphy for reargument in its October 2019-2020 term. Three additional cases were decided without argument. 

• Decisions: The court issued:
  • 5-4 decisions in 18 cases,
  • unanimous decisions in 24 cases, and
  • per curiam decisions (in which authorship is not specified) in five cases.

• Noteworthy per curiam decision: On April 23, 2019, the court dismissed Emulex Corp. v. Varjabedian as improvidently granted. Dismissed as improvidently granted, or DIG, occurs when the court chooses not to decide a case, even after accepting the appeal or hearing the arguments.

Looking ahead to the 2019 term

SCOTUS is in recess until October. It will begin hearing cases for the 2019 term on October 7. As of June 27, the court had accepted 42 cases. Of the 42 cases, 10 are consolidated. They are:

• Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda
• Guerrero-Lasprilla v. Barr and Ovalles v. Barr
• Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal
• Maine Community Health Options v. United States, Moda Health Plan Inc. v. United States, and Land of Lincoln Mutual Health Insurance Co. v. United States

Click here to find out more about the upcoming 2019-2020 term.

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from May 30 to June 26, 2019.

Vacancy count for June 26, 2019

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.

New vacancies

The following judges left active status, creating Article III vacancies. As Article III judicial positions, they must be filled by a nomination from the president. Nominations are subject to Senate confirmation.

• Judge Dennis Jacobs assumed senior status on the United States Court of Appeals for the Second Circuit.
• Judge Joseph McKinley assumed senior status on the United States District Court for the Western District of Kentucky.
• Judge Nora Fischer assumed senior status on the United States District Court for the Western District of Pennsylvania.

As of June 26, 118 of 870 active Article III judicial positions on courts covered in this report were vacant—a vacancy percentage of 13.6 percent.

Including the United States Court of Federal Claims and the United States territorial courts, 127 of 890 active federal judicial positions are vacant.

For more information on judicial vacancies during President Trump’s first term, click here.

New nominations

President Trump announced three new nominations since the May 2019 report. 

• Halil Ozerden, to the United States Court of Appeals for the 5th Circuit.
• John Kness, to the United States District Court for the Northern District of Illinois.
• Justin Walker, to the United States District Court for the Western District of Kentucky.

The president has announced 191 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.

New confirmations

Between May 30 and June 26, 2019, the Senate confirmed 11 of the president’s nominees to Article III courts. Since January 2017, the Senate has confirmed 123 of President Trump’s judicial nominees—80 district court judges, 41 appeals court judges, and two Supreme Court justices.

• Rossie Alston, confirmed to a seat on the United States District Court for the Eastern District of Virginia.
• Sarah Daggett Morrison, confirmed to a seat on the United States District Court for the Southern District of Ohio.
• Rodney Smith, confirmed to a seat on the United States District Court for the Southern District of Florida.
• Corey Maze, confirmed to a seat on the United States District Court for the Northern District of Alabama.
• Jean-Paul Boulee, confirmed to a seat on the United States District Court for the Northern District of Georgia.
• Pamela Barker, confirmed to a seat on the United States District Court for the Northern District of Ohio.
• Tom Barber, confirmed to a seat on the United States District Court for the Middle District of Florida.
• Allen Winsor, confirmed to a seat on the United States District Court for the Northern District of Florida.
• Matthew Kacsmaryk, confirmed to a seat on the United States District Court for the Northern District of Texas.
• James Cain, Jr., confirmed to a seat on the United States District Court for the Western District of Louisiana.
• Greg Guidry, confirmed to a seat on the United States District Court for the Eastern District of Louisiana.

Need a daily fix of judicial nomination, confirmation, and vacancy information? We maintain a list of individuals President Trump has nominated.

On June 27, 2018, the U.S. Supreme Court ruled in Janus v. AFSCME that public-sector unions cannot require non-members to pay agency fees to cover the costs of non-political union activities. Let’s take a look at the potential effect Janus has had on membership.

Broad effects: The National Education Association (NEA) and the American Federation of State, County, and Municipal Employees (AFSCME) are the nation’s two largest public-sector labor unions. Together, they represent about 4.3 million public-sector workers — roughly 20 percent of the nation’s total public-sector workforce.

• According to federal reports, total NEA membership in 2017 was 3.1 million, including 3 million dues-paying members and just under 100,000 agency fee payers. In 2018, membership was 3 million, all dues-paying members — a net decrease of about 2.4 percent.
• In 2017, total AFSCME membership was about 1.4 million, including 1.3 million dues-paying members and about 100,000 agency fee payers. In 2018, total AFSCME membership decreased to about 1.3 million, nearly all of it dues-paying members — a decrease of about 6 percent.

Challenges when assessing membership changes’: There is no consensus opinion when it comes to assessing Janus‘ effect on union membership rates. Generally speaking, groups that support the Janus ruling tend to point to figures suggesting declines in public-sector union membership. Unions tend to cite figures suggesting minimal effects on membership. This difference of opinion is a consequence of the complexities involved in measuring union membership rates. What makes tallying union membership so difficult?

• There is little existing research: The most frequently cited sources base their figures on the Current Population Survey, a sample survey of roughly 60,000 households. These are estimates, not precise measurements. Other existing research generally deals with individual states, making it difficult to compare states because of differing methodologies.
• There are no uniform federal reporting requirements: Under federal law, unions that represent public-sector employees exclusively are not required to file financial reports with the U.S. Department of Labor. Public-sector unions that represent some private-sector employees are subject to reporting requirements. This results in gaps in the data.
• Unions’ organizational structures complicate counting efforts: Many unions are organized at local levels. But these local unions often belong to state associations, which in turn often belong to national-level organizations. For example, a local school district teachers’ union might belong to a state-level affiliate of the National Education Association. Any attempt to count members must take this fact into account or risk double-counting members.

Ballotpedia’s approach to this question: Earlier this week, Ballotpedia published a methodology describing how we will navigate these complexities and produce our own membership data set, which we expect to publish in full by the end of this summer. For a more complete discussion of this topic, see our methodology article or check out our webinar, where we present some of our preliminary findings.

The big picture

Number of relevant bills by state

We are currently tracking 101 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

Recent legislative actions

Below is a complete list of legislative actions on relevant bills since the beginning of the year. Bills are listed in alphabetical order, first by state and then by bill number.

• California AB314: This bill would require employers to grant employees paid time for certain union activities.
  • Senate Labor, Public Employment, and Retirement Committee reported favorably. Bill and sent back to Senate Appropriations Committee June 26.
• Rhode Island H5259: This bill would authorize unions to impose fees on non-members for administrative matters.
  • House approved substitute bill June 26.
• Rhode Island S0712: This bill would authorize unions to impose fees on non-members for administrative matters. It would require employers to notify unions within five days of hiring new employees. It would also require employees to file written notice with the state controller in order to discontinue dues payroll deductions.
  • Placed on House calendar June 27.

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:

In this edition, we review the United States Supreme Court (SCOTUS) decision declining to uphold the nondelegation doctrine, a SCOTUS decision requiring notice-and-comment rulemaking for changes to Medicare policy, an effort to standardize cost-benefit analysis procedures at the Environmental Protection Agency, and two recent SCOTUS cases demonstrating the reluctance to apply Chevron deference.

At the state level, we highlight an Idaho proposal to simplify or retire roughly one-third of the state’s regulatory code, a new Michigan law that seeks to protect citizens against civil asset forfeiture, a ruling from the Texas Supreme Court aimed at protecting citizens’ due process rights in spite of agency misinformation, and the Texas governor’s executive order to prevent the expiration of the state’s plumbing regulations. As always, we wrap up with our Regulatory Tally, which features information about the 220 proposed rules and 264 final rules added to the Federal Register in May and OIRA’s regulatory review activity.

The Checks and Balances Letter

In Washington

U.S. Supreme Court fails to resuscitate nondelegation doctrine; Alito concurrence, however, suggests a change in precedent might be forthcoming

• What’s the story? In Gundy v. United States, the U.S. Supreme Court ruled 5-3 that the Sex Offender Registration and Notification Act (SORNA) did not violate the nondelegation doctrine, the constitutional principle forbidding Congress from delegating its legislative powers to the executive.
• Justice Elena Kagan’s plurality opinion noted that the court has only declared delegations of authority unconstitutional twice in its history and that past courts have upheld broader delegations with less guidance from Congress. Justice Alito, however–who voted to uphold SORNA–wrote a separate opinion stating his willingness to reconsider how the court approaches future nondelegation doctrine challenges, suggesting changes in precedent might still be coming. Justice Kavanaugh did not vote on the case, which was heard before he joined the court.
• Justice Gorsuch filed a dissenting opinion arguing that SORNA is unconstitutional because it gives the U.S. attorney general the power to write and enforce his own criminal code. He argued, “The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”
• Herman Gundy was convicted for failing to register as a sex offender under SORNA even though his offense occurred before SORNA passed. He argued that Congress improperly gave away legislative power to the attorney general when it allowed him to decide whether and how to apply SORNA to sex offenders who were convicted earlier.
• The last time the U.S. Supreme Court found that Congress violated the nondelegation doctrine was in two 1935 cases involving the National Industrial Recovery Act passed during the New Deal.
• Want to go deeper?

SCOTUS reins in HHS by requiring notice-and-comment rulemaking; declines to draw line between substantive and interpretive rules

• What’s the story? The United States Supreme Court on June 3 declined to draw a defining line between substantive rules and interpretive rules in a 7-1 decision in Azar v. Allina Health Services. Instead, the court narrowly held that the Medicare Act requires the U.S. Department of Health and Human Services (HHS) to follow notice-and-comment rulemaking procedures when it makes substantive changes to Medicare policy, including substantive changes issued through interpretive rules.
• Justice Brett Kavanaugh was recused from the case because he authored the appellate court opinion while serving on the United States Court of Appeals for the District of Columbia Circuit. Justice Stephen Breyer dissented.
• A group of hospitals that provide healthcare to low-income Medicare patients and challenged HHS’ method of calculating the disproportionate share hospital adjustments for the 2012 fiscal year. These adjustments serve to increase reimbursement payments to hospitals that treat a disproportionately high number of low-income patients. The hospitals argued that the Medicare Act required HHS to provide “the public with notice and opportunity for comment” before changing the formula.
• The district court ruled that HHS was not required to follow notice-and-comment rulemaking procedures because the formula change to calculate the 2012 adjustments was instituted through an interpretive rule, a type of agency guidance document. Unlike substantive rules, interpretive rules lack the force and effect of law. The district court held that the Medicare Act incorporated the Administrative Procedure Act’s (APA) exemption of interpretive rules from notice-and-comment rulemaking.
• The United States Court of Appeals for the District of Columbia Circuit reversed the district court in finding that the Medicare Act does not except interpretive rules from notice-and-comment requirements.
• In an opinion by Justice Neil Gorsuch, the United States Supreme Court affirmed the D.C. Circuit ruling, arguing that the Medicare statutes of 1987 require notice-and-comment rulemaking for changes to substantive legal standards, including those issued via interpretive rules.
• Want to go deeper?

Cost-benefit analysis overhaul at EPA in response to Trump executive order

• What’s the story? Environmental Protection Agency (EPA) Administrator Andrew Wheeler issued a memo on May 13 directing agency leadership to develop new rules standardizing the agency’s application of cost-benefit analysis in the rulemaking process.
• The EPA is instituting the new rules in response to President Trump’s Executive Order 13777, which directed agencies to identify regulations with costs that exceed benefits. The memo lists the following guidelines for the new cost-benefit analysis rules:

• The EPA should evaluate and consider both costs and benefits in regulatory decision-making.

• The EPA should have consistent interpretations of key terms and concepts, such as “practical,” “appropriate,” “reasonable,” and “feasible.”

• The EPA should explain the factors considered in a regulatory analysis and their role in shaping the regulatory outcome.

• Analyses should follow best practices as well as sound economic and scientific principles.

• Want to go deeper?

Recent SCOTUS cases avoid Chevron doctrine

• What’s the story? The U.S. Supreme Court has not overturned the Chevron doctrine, but two recent cases demonstrate the court’s reluctance to apply it.
• The court on May 20 rejected a petition to hear United Parcel Service v. Postal Regulatory Commission, a case in which the United Parcel Service challenged the appellate court’s application of Chevron deference to the Postal Regulatory Commission’s (PRC) method of setting postal rates.
• In the court’s May 28 decision in Smith v. Berryhill, the justices unanimously rejected the argument that Chevron deference should apply when Congress gave no clear instructions about the availability of judicial review for those seeking disability benefits before the Social Security Administration. Justice Sonia Sotomayor stated in the opinion that the scope of judicial review “is hardly the kind of question that the Court presumes that Congress implicitly delegated to an agency.”
• The Chevron doctrine—named for the 1984 United States Supreme Court decision in Chevron v. Natural Resources Defence Council—compels courts to defer to agencies’ reasonable interpretations of the unclear laws that they administer.
• Want to go deeper?

In the States

Idaho governor proposes dramatic reductions to state regulatory code

• What’s the story? Idaho Governor Brad Little (R) on May 21 proposed simplifying or allowing for the expiration of 139 full chapters and 79 partial chapters—roughly 34%—of the state’s regulatory code.
• Idaho’s entire regulatory code was effectively repealed as of July 1 after the state legislature failed to reauthorize the 8,200 pages of rules.
• Regulations in Idaho must be reauthorized each year, but lawmakers failed to do so by the end of the legislative session.
• Little directed agencies to submit their regulations to the Division of Financial Management by May 10 for temporary approval in order for the rules to remain in effect until the legislature reconvenes in January.
• Little’s proposal was open for public comment through June 11. Approved rules were published in the June 19 edition of the Idaho Administrative Bulletin, followed by a 21-day comment period.
• Want to go deeper?

New Michigan law protects against civil asset forfeiture

• What’s the story? Michigan Governor Gretchen Whitmer (D) signed a law on May 9 that prevents law enforcement from permanently keeping property under $50,000 acquired through civil asset forfeiture until the owner is convicted in a court of law.
• Under civil asset forfeiture, law enforcement routinely seize cars, cash and other property as alleged proceeds of crime.
• The new law aims to protect individuals’ property and due process rights against civil asset forfeiture and expedite the process for individuals seeking to recover seized property.
• The law is the latest in a series of civil asset forfeiture reforms approved by Michigan lawmakers in recent years. Legislation passed in 2015 raised the standard of evidence for civil asset forfeiture and established transparency requirements. A 2016 bill repealed the bond requirements for individuals challenging forfeitures.
• Want to go deeper?

Texas Supreme Court upholds due process in the face of agency misinformation

• What’s the story? The Texas Supreme Court unanimously ruled on May 21 in Mosley v. Texas Health and Human Services Commission and Texas Department of Family and Protective Services that state agencies can’t provide erroneous information to citizens and later deny them due process after they follow the government’s inaccurate instructions.
• The case concerned a decision by the Texas Department of Aging and Disability Services to add Patricia Mosley, a home health care provider, to the department’s Employee Misconduct Registry. Mosley challenged the decision but lost in a hearing before a state administrative law judge (ALJ).
• The department sent Mosely a letter after the hearing instructing her to file a petition for judicial review in district court within 30 days in order to appeal the decision. The letter, however, failed to instruct Mosley to first file a motion for rehearing before seeking judicial review as required by statute. As a result, Mosley’s petition for judicial review was dismissed by the district and appellate courts for failing to first file a motion for rehearing.
• The Texas Supreme Court disagreed, arguing that “the government can’t hold [Mosley] responsible for the consequences of its own ignorance.” The court ordered the department to reinstate Mosely’s case and allow her the opportunity for a rehearing.
• Want to go deeper?

Texas governor issues executive order to extend plumbing oversight

• What’s the story? Texas Governor Greg Abbott (R) issued an executive order on June 13 to continue the existence of the Texas Board of Plumbing Examiners and the state’s plumbing regulations through May 2021 without the need for a special legislative session.
• Texas plumbers asked Abbott to call a special legislative session after the Texas State Legislature failed to approve sunset review legislation last month that would have continued regulatory oversight of plumbers in the state.
• Lawmakers disagreed over the sunset bill’s proposal to move the responsibilities of the plumbing board under the Texas Department of Licensing and Regulation. Supporters of the bill argued that the move would improve efficiency, such as reducing the state’s eight-month processing period for issuing a plumbing license. Opponents claimed that the lengthy licensing period and other alleged inefficiencies of the plumbing board served to protect public health and safety in a specialized industry.
• Without Abbott’s intervention, the legislative inaction would have resulted in the expiration of the state’s plumbing code on September 1, 2019, and the end of the plumbing board operations by September 2020.
• Want to go deeper?

New study breaks down scope and impact of federal regulations

The Competitive Enterprise Institute (CEI) in May released a new issue of the Ten Thousand Commandments—the group’s annual report detailing the scope of federal regulatory activity and its economic impact. Below is a selection of the report’s conclusions:

The Pacific Legal Foundation provided the following summary of the report’s key findings:

• “Each U.S. household’s estimated regulatory burden is at least $14,615 annually on average. That amounts to 20 percent of the average pre-tax household budget and exceeds every item in that budget, except housing.”
• “In 2018, Washington bureaucrats issued regulations at a rate of 11 for every one law Congress enacted. The average for this “Unconstitutionality Index” for the past decade has been 28 to one. The five agencies issuing the most rules are the Departments of Commerce, Defense, Health and Human Services, Transportation, and the Treasury.”
• “In the pipeline now, 67 federal departments, agencies, and commissions have 3,534 regulatory actions at various stages of implementation … according to the fall 2018 ‘Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions.’”
• “Of the 3,534 regulations in the Agenda’s pipeline, 174 are ‘economically significant’ rules, which the federal government describes as having annual economic effects of $100 million or more. Of those 174, 38 are deemed ‘deregulatory’ for purposes of E.O. 13,771.”

Click here to read the full report.

Regulatory Tally

Federal Register

• The Federal Register in May reached 25,492 pages. The number of pages at the end of each May during the Obama administration (2009-2016) averaged 31,268 pages.
• The Federal Register included 220 proposed rules and 264 final rules during May 2019. The regulations included new rules for Medicare Part D, an electronic signature option for U.S. Postal Service deliveries, and an increase in H-2B visas, among other rules.

• Want to go deeper?

Office of Information and Regulatory Affairs (OIRA)

OIRA’s May regulatory review activity included:

• Review of 36 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 46 significant regulatory actions each May.
• Recommended changes to 34 proposed rules.
• Agencies withdrew two rules from the review process.
• As of June 2019, the OIRA website listed 113 regulatory actions under review.

Want to go deeper?