CategoryPublic Policy

U.S. Supreme Court waits to act on DACA cases

The U.S. Supreme court has not acted on three cases challenging a decision made by the Trump administration to end an Obama-era program that postponed deportation for children who entered the United States unlawfully. The Department of Homeland Security (DHS) acted to wind down the Deferred Action for Childhood Arrivals (DACA) program in 2017 and three separate cases have asked the U.S. Supreme Court to weigh in.
 
Each case asks the court to decide whether the DHS decision to end DACA is subject to judicial review and whether the decision was lawful. The court first considered whether to hear the cases during its January 11, 2019, conference but has not made a decision about whether to accept the cases since then. Four justices must agree to hear a case for it to move forward in the process.
 
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3rd Circuit Court of Appeals rules against Trump administration over law enforcement grants

On February 15, 2019, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled in City of Philadelphia v. Attorney General of the United States that the Trump administration could not deny funds to Philadelphia, Pennsylvania, because of its immigration policies.
 
Judge Marjorie Rendell, a Bill Clinton appointee, wrote in the opinion that “the Attorney General did not have statutory authority to impose” the JAG grant compliance requirements. The U.S. Department of Justice (DOJ) grants JAG funds annually to states and cities to support local law enforcement.
 
The 3rd Circuit’s ruling upheld an earlier ruling from U.S. District Judge Michael Baylson, a George W. Bush appointee, of the Eastern District of Pennsylvania. On June 6, 2018, Baylson ruled that Philadelphia was entitled to receive prompt JAG funds and the Trump administration’s attempt to withhold funds from the city “violate[d] statutory and constitutional law.”
 
On July 25, 2017, the DOJ announced two new requirements for the JAG grants and said applicants who did not meet the requirements would be ineligible to receive funds. The new conditions required applicants to comply with federal laws on immigration, particularly through local communication with the U.S. Department of Homeland Security regarding undocumented immigrants.
 
Philadelphia first filed a lawsuit against the DOJ’s new JAG grant compliance requirements on August 20, 2017. Several other cities, including San Francisco, Los Angeles, Chicago, and New York City, also filed legal challenges to the requirements.


Sixteen states file suit against Trump’s emergency declaration

Sixteen state attorneys general filed a lawsuit in California’s Northern District against President Donald Trump’s emergency declaration to pay for a wall along the southern border.
 
The lawsuit states that the emergency declaration shows a “flagrant disregard for the separation of powers. … President Trump has veered the country toward a constitutional crisis of his own making.”
 
On February 15, 2019, Trump declared a state of emergency on the southern border and directed $8.1 billion to build a border wall.
 
The lawsuit was filed by Democratic attorneys general from California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. They said that the emergency declaration would cause their states to lose millions in federal funding and cause environmental damage.
 
At the time of the filing, the following states with Democratic attorneys general did not join the lawsuit: Iowa, Kentucky, Massachusetts, Mississippi, New Mexico, North Carolina, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin.
 
“The states’ lawsuit is likely to stall the implementation of the emergency declaration and generate protracted legal battles that could land before the conservative-dominated Supreme Court. The case may not be resolved before 2020, potentially making Mr. Trump’s plan an issue in the next presidential election,” according to The Wall Street Journal.


New EPA rule would clarify federal jurisdiction over waters of the United States

The Environmental Protection Agency (EPA) and the Army Corps of Engineers issued a proposed rule under the Clean Water Act (CWA) that would distinguish water subject to federal regulation from water subject to state and tribal jurisdiction. The rule, published on February 14, 2019, revises definitions of “waters of the United States” established in 1986 and 2015 that have been subject to years of court battles.
 
According to the EPA’s notice of proposed rulemaking, the new rule will change the definition of the waters of the United States in order to comply with the text of the CWA and Supreme Court precedent better than the 2015 definition. In addition, the agency claims that the new rule would be easier to implement than the 2015 definition because it uses a more straightforward definition of waters, such as oceans, rivers, and lakes, as opposed to “ephemeral geographic features that are dry almost all of the year.”
 
The rule follows President Trump’s Executive Order 13778, which directed agencies to review the 2015 definition to see if it was consistent with keeping navigable waters free from pollution while promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of Congress and the states under the U.S. Constitution.
 
Proposed rules are preliminary versions of a prospective federal agency regulation. If an agency determines that a new regulation is necessary, the agency develops a proposed rule for publication in the Federal Register. After a period of public comment, the agency may determine to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.


CRA resolution would undo rule that expanded short-term health insurance plans

On February 6, 2019, a resolution was introduced in the U.S. House of Representatives to restrict the market for short-term, limited-duration health insurance plans. Under a rule, effective October 2, 2018, insurers were allowed to sell short-term, limited-duration plans with a maximum coverage period of fewer than 12 months. Before the new rule, those plans could only provide coverage that lasted less than three months.
 
According to the supplementary information published with the rule, short-term, limited-duration insurance is generally exempt from federal requirements because it is not considered to be individual health insurance coverage. The plans do not have to provide the essential health benefits specified by the Affordable Care Act and can refuse to cover preexisting conditions.
 
Rep. Kathy Castor (D-Fla.) introduced a resolution under the Congressional Review Act (CRA) that would undo the October 2018 rule. Her resolution would restore the under-three-month limit on those kinds of insurance plans.
 
Under the Congressional Review Act, the resolution would need to pass both houses of Congress and receive President Trump’s signature to repeal the rule.
 
The CRA is a federal law passed in 1996 creating a review period during which Congress, by passing a joint resolution of disapproval that is then signed by the president, can overturn a new federal agency rule.
 
Prior to 2017, the law was successfully used only once, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. As of May 2018, the last time the CRA was successfully used, 16 rules have been repealed under President Trump.


How do primaries in your state work?

The first statewide primary of 2019 is approaching – here’s a rundown of five facts about primary systems.
 
1. An open primary is any primary election in which a voter either does not have to formally affiliate with a political party in order to vote in its primary or can declare his or her affiliation with a party at the polls on the day of the primary even if the voter was previously affiliated with a different party.
 
In 22 states, at least one party conducts open primaries. Is your state one of them? Click the link to find out.
 
2. In 39 states, a candidate needs to win only a plurality (as opposed to a majority) of all votes cast in order to be declared the winner of a primary. Is your state one of them? Click the link to find out.
 
3. Generally, political parties use primary elections either to narrow the field of candidates for a given elective office or to determine their nominees in advance of a general election. In seven states, however, political parties can nominate candidates for some offices for the general election directly, without conducting a primary election. Is your state one of them? Click the link to find out.
 
4. A closed primary is a type of primary election in which a voter must affiliate formally with a political party in advance of the election date in order to participate in that party’s primary. In 14 states, at least one political party conducts closed primaries. Is your state one of them? Click the link to find out.
 
5. In eight states, a candidate must win a majority of all votes cast (i.e., 50 percent plus at least one) in order to be declared the winner of a primary election. Is your state one of them? Click the link to find out.


Federal Register weekly update; highest 2019 weekly page total to date

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 February 4 to February 8, the number of pages in the Federal Register increased by 1,752 pages, bringing the year-to-date total to 3,094 pages. A total of 884 documents were included in the week’s Federal Register, including 760 notices, three presidential documents, 48 proposed rules, and 73 final rules.
 
Four proposed rules and three final rules were deemed significant under E.O. 12866—meaning that they may 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 842 pages. As of February 8, the 2019 total trailed the 2018 total by 2,776 pages.
 
The Trump administration has added an average of 516 pages to the Federal Register each week in 2019 as of February 8. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 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.


Under new federal rule, employers no longer required to submit privacy-violating info about employees to OSHA

On January 24, the Occupational Safety and Health Administration (OSHA), an agency within the Department of Labor, published a rule protecting worker privacy by keeping sensitive details about workers’ injuries away from the Freedom of Information Act (FOIA) process. Companies will still have to keep detailed records of employee injuries and illnesses, but will only have to submit summary data to the agency.
 
OSHA said the new rule was a deregulatory action following President Trump’s Executive Order 13771, which requires agencies to eliminate two old regulations for each new regulation. Under regulations set during the Obama administration, some employers had to submit detailed information to OSHA about employee illnesses and injuries every year.


Federal district court adopts new district map for Virginia House of Delegates

On January 22, 2019, the U.S. District Court for the Eastern District of Virginia issued an order adopting a remedial district plan for the Virginia House of Delegates. Pending the outcome of subsequent appeals, the remedial map will apply to the 2019 election cycle. Both chambers of the Virginia legislature hold elections this November.
 
House Speaker Kirk Cox (R) criticized the plan: “The Eastern District Court selected a series of legally indefensible redistricting modules that attempts to give Democrats an advantage at every turn. The modules selected by the Court target senior Republicans, myself included, without a substantive basis in the law.”
 
Democratic attorney Marc Elias, who initiated the suit in 2014, praised the order: “In Virginia, the Federal Court in the long-running state house redistricting case has ordered the special master to adopt the alternative-map configuration we advocated. We are one important step closer to the end of the GOP’s racial gerrymander.”
 
At present, Republicans control the House of Delegates, holding 51 seats to Democrats’ 48. Larry Sabato, head of the Center for Politics at the University of Virginia, said, “[The remedial map] would nearly guarantee a Democratic takeover of the House of Delegates.”
 
The legality of the districts in question has been disputed since 2014 when opponents of the original district plan alleged that it constituted an illegal racial gerrymander. The case, Bethune-Hill v. Virginia Board of Elections, was ultimately heard by the Supreme Court of the United States, which ruled on March 1, 2017, that the lower court had erred in its earlier ruling that upheld the disputed districts. That unanimous ruling was written by former Justice Anthony Kennedy.
 
The high court remanded the case to the district court, which ruled on June 26, 2018, that 11 state legislative districts had been subject to racial gerrymandering. The court ordered state lawmakers to draft a remedial map, but the legislature proved unable to do so. The district court then appointed a special master, Bernard Grofman, a political science professor at the University of California, to draft the map adopted by the court this week.


Federal Register weekly update; only 14 documents published as government shutdown continues

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 January 14 to January 18, the number of pages in the Federal Register increased by 88 pages, bringing the year-to-date total to 194 pages. A total of 14 documents were included in the week’s Federal Register, including three notices, one presidential document, and ten rules.
 
No proposed or final rules were deemed significant under E.O. 12866—meaning that they may 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.
 
Due to the government shutdown, fewer pages have been added the Federal Register compared to recent years. During the same week in 2018, the number of pages in the Federal Register increased by 856 pages. As of January 18, the 2019 total trailed the 2018 total by 2,690 pages.
 
The Trump administration has added an average of 65 pages to the Federal Register each week in 2019 as of January 18. In 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. Over the course of 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.
 
Click here to find more information about weekly additions to the Federal Register in 2018 and 2017. Click here to find yearly information about additions to the Federal Register from 1936 to 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.


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