“Economic populism is the glue that binds the consensus. Without Donald Trump’s expropriation and Hillary Clinton’s abandonment of that issue in 2016, Clinton would be president. While every Democrat has trained hard to sound more like Bernie Sanders, few of the Miami 20 are in any real sense populists. Their approach to social issues was a ceaseless display of moral oneupmanship. Apart from some scolding about socialism, none talked about management or cost.”
– Bill Curry, former White House counselor to Bill Clinton
During a Facebook town hall, Steve Bullocksaid Native American tribes should be consulted on the Keystone XL project and that he would be open to the pipeline “if it’s done right.”
Pete Buttigieg said he raised $24.8 million during the second quarter of 2019, tripling what he received in the first quarter.
Julián Castrojoined the Workers Defense Action Fund in Texas to discuss labor and immigration issues.
John Delaney released a plan to combat the opioid crisis through corporate accountability Tuesday. He would require patients to sign a consent form when prescribed opioids and increase spending on pain management research and mental health providers. He also said that liable companies “should go out of business.”
NBC News wrote about Kirsten Gillibrand’s push for Al Franken to resign in 2017 and how it is affecting her campaign.
Reps. Bobby Bush (D-Ill.) and Frederica Wilson (D-Fla.), two members of the Congressional Black Caucus (CBC), endorsedHarris. She now leads Biden in CBC endorsements, six to five.
John Hickenlooper made several major staffing changes Monday, including hiring M.E. Smith as his new campaign manager. National finance director Dan Sorensen left to join Beto O’Rourke’s campaign. Former campaign manager Brad Komar and communications director Lauren Hitt also departed the campaign.
Jim Webb announced that he was running in the Democratic primary for president of the United States. “We need a president who understands leadership, who has a proven record of actual accomplishments, who can bring about bipartisan solutions, who can bring people from both sides to the table to get things done,” he said.
As a state ballot measures staff writer, I don’t just cover citizen initiatives and referendums—I also cover constitutional amendments—because in every state except Delaware, changes a legislature makes to the state constitution must be referred to voters for their approval or rejection. I find it fascinating to see what amendments come out of the different state legislatures and I especially enjoy the cases where I get to chat with an amendment’s sponsor to hear about their motivations for proposing various constitutional changes. Since state legislatures convened their 2019 sessions in the early months of this year, 19 legislatively referred constitutional amendments have passed in state legislatures and landed on 2019 ballots. Legislatures have also referred 29 constitutional amendments to 2020 ballots. Measures can still be added or removed from the ballot, however.
I also really like calculating statistics, such as the following:
From 2006 through 2018, a total of 914 constitutional amendments were proposed and put before voters.
Statistically, from 2006 through 2018, off-year election cycles featured a higher approval rate for proposed constitutional amendments than even years. In 2017, all 17 amendments on the ballot were approved, for the highest approval rate since 1947.
I’m excited to see what happens with the constitutional amendments already certified for state ballots as they head to voters for approval or rejection. Remember— for almost anything you want to know about ballot measures… we have a page for that.
Check out the page below detailing what we cover and how to keep track of it all with us.
If you want to share Summer Camp with your pet, upload a sunglasses photo to social media with the hashtag, #BPSummerCamp!
Notes from Brew readers like you
I’m looking forward to finding out: “I am interested to see which 2020 Presidential candidates call it quits as the summer winds down.”
Kind words: “The most interesting part of the first half of 2019, was that I started getting your emails… I have a stunning interest in all the elections in every state, on every state level, wonderful!”
Thanks, Michael and N.G.! Want to see your own thoughts in the Daily Brew? Reply to this email or share them with us here!
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 curiamdecision: 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:
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.
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.
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.
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.
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.
“What the maiden debates of the 2020 election cycle demonstrated above all else is the acceleration of change inside the Democratic Party—not just since Biden came to Congress in 1973, but since he became vice president in 2009.
Ten years ago this September, Barack Obama convened a joint session of Congress to reset the narrative of his health-care reform push and dispel some of the more sinister myths surrounding it. One particular point of emphasis for Obama: The Affordable Care Act would not cover undocumented immigrants.
On Thursday, every one of the 10 candidates on stage—Biden included—said their government plans would do exactly that.”
– Tim Alberta, Politico chief political correspondent
Our Summer camp week begins today, and I hope you’re as excited about it as all of us are to bring it to you.
The beginning of July is a perfect time to think about where we are in 2019 and what we’re likely to be talking about as we head towards a very busy 2020. I’ll be turning the Brew over to a few of our staff writers on Tuesday and Wednesday to learn what they think was the most noteworthy story of the last six months and what they’re looking forward to in the months ahead.
We’ve enjoyed hearing from you these past few weeks-what stories matter to you and how you’re spending your summer. We also know that the summer break is when lots of folks relax.
Personally, I can’t think of a better way to relax than thinking about the Supreme Court, and the term that just ended. I mean, who doesn’t want to talk about writs of certiorari at a backyard barbecue? “I remand that request for more potato salad.” Who wants to take a vacation to the birthplaces of all nine justices?
Fortunately, today’s edition of our Bold Justice newsletter recaps the Supreme Court’s term that ended Friday. If you sign up now, you’ll receive it in your mailbox later this afternoon. You can sit back, grab a cold beverage, and relive all the cases of the last nine months. I know I can’t wait.
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.
“This is a campaign powered by the people, focused on making health care a right, putting $500 a month in the pockets of working Americans, and giving every public school teacher in America a raise. We’re excited by the support we’re already seeing.”
“Democrats above all seek electability. But this debate is a good reminder that electability comes in many forms — and the ideal candidate in one election may not be the most electable candidate in another. In 2004, as John Sides has pointed out, the Democrats thought that they needed to speak to religious voters — but that’s not how Obama won. In 2012, the Republicans thought that they needed to speak to Latinx voters — but again, that’s not how Trump won.”
– Dan Hopkins, University of Pennsylvania professor of political science
Michael Bennet condemned Citizens United and gerrymandering. He also shared the story of his mother’s separation from her family in Poland during World War II while discussing his involvement in the bipartisan Gang of Eight immigration legislation and family separations.
Joe Biden defended his record on civil rights and school integration after Harris said he had worked with segregationists to oppose busing. He also said he could work with Republicans, pointing to a 2012 deal with Mitch McConnell on taxes.
Pete Buttigieg said he had been unable to diversify South Bend’s police force and that systemic racism in policing needed to be addressed. He also said there was a tension between Christian values and family separations at the border.
Kirsten Gillibrand said that “women’s reproductive rights are under assault” by the Republican Party and abortion policies created by compromise, like the Hyde Amendment, were unacceptable. She also said she supported a buy-in transition period before adopting a Medicare for All system.
Kamala Harris criticized Biden’s record on busing and shared she was in the second class to integrate at her public school in California. She also opposed the Obama administration’s deportation policy, saying it affected the immigrant community’s ability to reach out to law enforcement.
John Hickenlooper said Democrats needed to make clear they are not socialists. He said he supported the mission of the Green New Deal but opposed its job guarantee. On immigration, Hickenlooper said the Trump administration’s family separation policy was tantamount to kidnapping.
Bernie Sanders said that under his policies, the middle class would pay more in taxes but less in healthcare and education. He also opposed court packing, called for rotating judges, and said that support for Roe v. Wade would be a litmus test for his federal judicial nominees
Eric Swalwell quoted Biden to say that political leadership should pass to a new generation, particularly on issues of automation and climate change.
Marianne Williamson said the discussion around healthcare needed to address the underlying causes of chronic illness, including pharmaceutical and environmental policies. She also directly challenged Trump, saying she would “harness love for political purposes.”
Andrew Yang said Russia was the greatest geopolitical threat and that Chinese intellectual property theft and should not be addressed through tariffs. He said the first international relationship he would reset would be China to seek cooperation on climate change, AI, and North Korea.
After touring a facility housing migrant children in Homestead, Florida, Bill de Blasio said it looked like a prison camp and called for an end to family separations.
Cory Bookerintroduced the Remove Marijuana from Deportable Offenses Act Thursday, which would remove marijuana use and activities from the list of offenses making an immigrant deportable or ineligible for citizenship.
Beto O’Rourkespoke with top donors and bundlers Thursday about his debate performance and how to improve in July.
Elizabeth Warren, along with Biden, de Blasio, and Buttigieg, will speak at the Rainbow PUSH Convention in Chicago this weekend.
Donald Trump arrived in Japan for the G20 summit where tariffs, the global economy, climate change, oil markets, and marine plastic waste are expected to be discussed.
Bill Weldtweeted that he was looking forward to debating Trump. No incumbent president has participated in a primary debate and the Republican National Committee disbanded the party’s debate committee in 2018.
Today’s Brew summarizes our semiannual recall election analysis and discusses state legislative walkouts
Welcome to the Friday, June 28, Brew. Here’s what’s in store for you as you start your day:
This year’s recall efforts down by half compared to last three years
So, what exactly is a state legislative walkout?
Supreme Court rules on partisan gerrymandering claims
Recall efforts down by half compared to prior three years
I look forward to this day each June – the day we release our mid-year figures on political recalls.
During the first half of 2019, Ballotpedia’s recalls coverage discovered a 50 percent decline in the total number of recall efforts compared to the same times in 2016, 2017, and 2018.
The figure below depicts the total recall efforts through the first 6 months of the calendar year:
There has been a higher amount of recall efforts targeting state legislators so far this year compared to the previous three years. In 2016, there were seven recall efforts targeting state legislators. 2017 saw three, and 2018 saw four. In the first half of 2019, however, nine state legislative recalls have accounted for 8% of the year’s recall efforts.
2019 did match previous years’ recall statistics in other ways. As in 2016, 2017, and 2018, California led the way in the highest number of officials targeted for recall in 2019, and city council officials also drew the focus of more recall petitions than any other group.
Of the recall efforts covered in the first half of 2019, 37% are still underway as of June 27 and another 11% have recall elections scheduled. A total of 17% of the efforts have not gone to the ballot. Of those that have made it to the ballot, 15% were approved and 10% were defeated.
Dig deeper for more recall data in the full report below.
Summer camp begins next week! We’re looking for stories from our readers. What are you looking forward to this summer? What has been your favorite political story so far this year? Click here to share your thoughts.
Oregon Senate Republicans are currently out of state. What is a state legislative walkout?
On June 20, 2019, the 11-member Republican minority of the Oregon State Senate did not come to a scheduled legislative session to discuss HB2020, a cap-and-trade bill. With only 18 Democratic members, the chamber fell short of the 20 members needed for quorum and business halted. Although Senate President Peter Courtney announced June 25 that HB2020 did not have the votes necessary to pass, Republicans have remained out of state away from the legislature.
We’ve seen legislative walkouts before, so we thought this would be a good time to set the landscape on the subject.
Quorum requirements for legislatures to conduct official business are laid out in state constitutions. In many states, there are also statutory requirements for quorum if a bill involves taxes or state finances. Forty-five states require a majority of legislators present for quorum. Four states, including Oregon, require two-thirds of legislators be present for quorum. Massachusetts requires two-fifths of state senators or three-eighths of state representatives to be present for quorum.
Oregon’s Republican legislators are the most recent example of a state legislative walkout, where minority party members leaving the capitol, or the state, to prevent legislative action. Listed below are three examples of state legislative walkouts that occurred prior to 2019.
In February 2011, 37 Democratic members of the Indiana House of Representatives did not come to a scheduled legislative session, citing right-to-work legislation as the reason.
Also in February 2011, 14 Democratic members of the Wisconsin State Senate did not come to a scheduled legislative session to prevent a vote on right-to-work legislation.
In May 2003, 11 Democratic members of the Texas State Senate did not come to a scheduled legislative session to prevent the passage of a redistricting plan they said would have benefited Republicans. Republicans held 20 seats, one short of the 21 members needed for quorum.
U.S. Supreme Court finds partisan gerrymandering claims are beyond jurisdiction of federal courts
The U.S. Supreme Court issued two rulings Thursday on partisan gerrymandering. The 5-4 decisions in Rucho v. Common Cause (North Carolina) and Lamone v. Benisek (Maryland) held that partisan gerrymandering claims present political questions that fall beyond the jurisdiction of the federal judiciary. The high court combined the cases and issued a single joint decision covering both.
Chief Justice John Roberts penned a majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Roberts noted that the Framers, “aware of electoral districting problems … [assigned] the issue to the state legislatures, expressly checked and balanced by the Federal Congress, with no suggestion that the federal courts had a role to play.”
Justice Elena Kagan wrote a dissent, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Kagan wrote: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights…In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
The high court remanded both cases to the respective lower courts with instructions to dismiss for lack of jurisdiction. The lower court decisions had thrown out existing congressional district plans as impermissible partisan gerrymanders. As a result of Thursday’s decisions, those district maps will remain in place for the 2020 congressional elections.
Stay tuned Monday for our full SCOTUS roundup of the 2018-2019 term. Subscribe to Bold Justice to get that delivered straight to your inbox, free.
Just launched: Ballotpedia’s Learning Journey on Enumerated Powers
We are excited for you to join us and deepen your understanding of a foundational principle of the United States Constitution—enumerated powers. This Learning Journey guides you through the powers given to Congress and how they relate to the separation of powers between the legislative, executive and judicial branches of the federal government.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
June 27, 2019: The second set of 10 Democratic presidential candidates take the debate stage in Miami. Donald Trump raised $36 million in the first week since he formally launched his re-election campaign.
The second set of 10 Democratic presidential candidates will take the debate stageThursday night in Miami, Florida. José Diaz-Balart, Savannah Guthrie, Lester Holt, Rachel Maddow, and Chuck Todd will moderate the debate.
Tune in to NBC News, MSNBC, or Telemundo at 9 PM ET to watch the event live. You can also stream the debate via NBCNews.com, the NBC News apps, Telemundo, or YouTube.
“I think it’s the people who are worried about making it through the summer and being on the stage in the fall [with the most pressure]. It’s pretty clear that Sanders is going to be on the stage, and it’s pretty clear that Biden is going to be on the stage. I think if you’re Kamala or Warren, you’ve got to be like a really good rebounder in a basketball game. You’ve got to hang around the hoop, and you’ve got to get rebounds. I think [for] the folks that aren’t going to make the stage in September … they need to change the game for themselves so that they’re viable. They’re hoping just to make it until the early states [begin voting], and then it’s a totally different game.”
– Danny Diaz, 2016 Jeb Bush presidential campaign manager
Cory Booker said economic policy and gun regulations were not working in his community, which he described as low-income, black, and brown. He also discussed violence against transgender Americans.
Julián Castro advocated establishing a Marshall Plan for Honduras, Guatemala, and El Salvador. He also condemned the metering policy on migrants seeking asylum and said he would decriminalize illegal border crossings.
Bill de Blasio criticized calls to keep private insurance as a healthcare option and shared his personal experiences as the son of a World War II veteran who took his own life and the father of a black son.
John Delaney opposed Medicare for All and said that Democrats should focus on lowering pharmaceutical prices, infrastructure, and job creation, rather than the Mueller report or impeachment proceedings.
Tulsi Gabbard said that nuclear war was the greatest threat to national security and called for the U.S. to return to a nuclear agreement with Iran. She also discussed her shift on LGBT policy, coming from a socially conservative household to serving alongside LGBT servicemembers.
Jay Inslee highlighted his executive experience in Washington, saying he was the only candidate who passed laws on abortion and health insurance. He also discussed climate change and his support for unions.
Amy Klobuchar responded to Inslee by saying there were “three women on this stage” who also fought for abortion. She discussed her electability, saying she had won districts in Minnesota that went for Trump by double digits.
Beto O’Rourke defended private insurance as a healthcare option and said pharmaceutical companies need to be held accountable for their connection to the opioid crisis.
Tim Ryan criticized General Motors for closing a facility Lordstown, Ohio, and manufacturing cars in Mexico after receiving a tax break. He also said the center of the Democratic Party needed to shift from “coastal and elitist and Ivy League” to “the forgotten communities.”
Elizabeth Warren joined de Blasio in being the only candidates on stage to support abolishing private health insurance. She also named climate change as the greatest threat to the United States.
Michael Bennetposted a clip on social media of his decade-long support for lifetime bans on members of Congress becoming lobbyists.
The Atlanticsurveyed 23 Democratic candidates on whether they supported the Trans-Pacific Partnership. Joe Biden, who advocated for the agreement during the Obama administration, declined to say he would. Delaney was the only candidate to explicitly support the deal.
The New York TimesprofiledSteve Bullock’s campaign, describing his retail politics and messaging focus on electability and results in Montana.