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Federal Register weekly update; highest weekly total of presidential documents in 2019

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 April 1 to April 5, the number of pages in the Federal Register increased by 1,748 pages, bringing the year-to-date total to 13,794 pages. This week’s Federal Register featured a total of 604 documents, including 452 notices, 12 presidential documents, 57 proposed rules, and 83 final rules.
 
One proposed rules, three final rules, and one notice 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 1,394 pages. As of April 5, the 2019 total trailed the 2018 total by 1,224 pages.
 
The Trump administration has added an average of 985 pages to the Federal Register each week in 2019 as of April 5. 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.
 
Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


SCOTUS rejects a challenge to expert testimony

Biestek v. Berryhill asked whether agency experts must provide data supporting their testimony during benefits hearings. On April 1st, the U.S. Supreme Court ruled, “not categorically.” The court held that reviewing courts could uphold agency decisions even when experts withhold requested data.
 
Justice Elena Kagan, writing for a 6-3 majority, argued that a blanket rule against experts refusing to reveal data used to support their conclusions would be too broad. She held that reviewing courts should adopt a case-by-case approach. Justice Neil Gorsuch, in a dissent joined by Justice Ruth Bader Ginsburg, argued that agency experts should provide support for their allegations when asked.
 
When the Social Security Administration (SSA) decides whether to award disability benefits to applicants, it follows an informal adjudication process laid out in the Social Security Act of 1935. SSA administrative law judges (ALJs) conduct hearings to determine whether the agency should accept or reject disability claims. If someone challenges an SSA benefits decision in court, judges will uphold the agency’s factual determinations if a reasonable person would accept that the supporting evidence was adequate.
 
Courts reviewing factual determinations made by the SSA have to make sure the agency based its decisions on substantial evidence. Court precedent defines substantial evidence as that which a reasonable mind would accept as supporting a conclusion.
 
In this case, Michael Biestek went before an SSA ALJ for a hearing to see if there was any work he could perform with his disabilities. A vocational expert working for the SSA testified that there were hundreds of thousands of jobs available for someone like Biestek. The ALJ did not require the expert to share the surveys she used to make her assessment when Biestek’s lawyer asked to see them. Based on the expert testimony, the ALJ rejected part of Biestek’s disability application. Biestek challenged the partial denial of benefits, saying that the expert’s refusal to share her data meant that her testimony fell short of the substantial evidence standard.
 
Justice Kagan held that expert testimony alone is usually enough to qualify as substantial evidence. She did not support rejecting expert testimony in all cases where the agency expert refuses to divulge the underlying data. Justice Sonia Sotomayor wrote a dissenting opinion, arguing that the SSA had the burden of proof to show that Biestek had work opportunities. Justice Gorsuch wrote a separate dissenting opinion, arguing that “The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decisionmaking [….] Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice.”
 


From 30 hours to 2 – what you need to know about the nuclear option change this week

Earlier this week Republican leaders in the Senate used a procedural tactic known as the nuclear option to change the process for confirming judicial nominees. This is the third time the procedural tactic has been used since 2013.

Republicans cheered the change while Democrats have been critical of the tactic. But aside from the partisan mudslinging, what are the facts about this change? What will the new rules mean, and what is the data behind how we got here? What exactly happened with the nuclear option and how are Senate leaders reacting? How will this affect President Trump’s ability to fill vacancies in the federal judiciary?

Ballotpedia has answers to these questions and more below.

What happened?

On Wednesday, the Senate voted 51-48 to reduce post-cloture debate on federal district court nominees from 30 hours to two hours (circuit court judges and Supreme Court justices still have 30 hour limits). The Senate made the same change for executive branch nominees below the Cabinet level.

The two hour period begins after the Senate votes to invoke cloture—the process in which senators agree to end debate and bring a nomination or legislative act to a final vote. Cloture is often invoked to end procedural delay commonly known as a filibuster. It takes 51 votes to invoke cloture on a presidential nominee and 60 votes to invoke cloture on legislation.

What is the difference between a federal district court and a circuit court?

Federal district courts are the first level of the federal court system. Most federal criminal and civil cases originate in district courts. There are 94 district courts nationwide, with each state having between one and four associated district courts. There are 677 federal judge positions in the district court system.

Circuit courts are the intermediate appellate level of the federal court system, falling in between district courts and the Supreme Court. There are 13 circuit courts, including 11 numbered circuits which each handle appeals originating in a particular group of states. A 12th court handles appeals originating in the District of Columbia. The Court of Appeals for the Federal Circuit handles appeals which deal with specific subject areas. There are 179 federal judge positions in the circuit court system.

What does the nuclear option actually mean?

To enact this change, Senate Republicans used a parliamentary tactic known as the nuclear option: a procedure that allows the majority party to change a Senate precedent with a simple majority vote. Without the nuclear option, changing the Senate’s standing rules requires a two-thirds vote. On Tuesday, Republicans tried to pass the change in the form of a standing resolution, but they did not receive the required 60 votes. The term nuclear option was first coined in 2003 by Sen. Trent Lott (R-Miss.).

To deploy the nuclear option, Senate Majority Leader Mitch McConnell (R-Ky.) raised a point of order during the consideration of Roy Altman to serve on the U.S. District Court for the Southern District of Florida. His point of order stated that debate should be limited to two hours after cloture is invoked on a judicial nominee. After the presiding officer of the Senate ruled against McConnell’s point of order, 51 Senate Republicans–all except Susan Collins (R-Me.) and Mike Lee (R-Ut.)–voted to overrule the chair’s decision.

This was the third time the Senate has used the nuclear option to change Senate precedent for presidential nominations since 2013. Here are the other two:

  • 2013: Senate Majority Leader Harry Reid (D-Nev.) changed the threshold for invoking cloture for all presidential nominees except Supreme Court justices from 60 votes to 51 votes.

  • 2017: McConnell reduced the cloture threshold for Supreme Court nominees from 60 votes to 51 votes when the Senate was considering Neil Gorsuch’s nomination.

Who was the first judge to be confirmed under the new precedent?

Altman was the first judge to be confirmed under the new precedent. Altman is the first Trump judicial nominee to the U.S. District Court for the Southern District of Florida and brings its composition to seven Republican-appointed judges and seven Democratic-appointed judges. There are four other vacancies on the bench. Two Trump nominees who, like Altman, were nominated on May 7, 2018—Rodolfo Ruiz and Rodney Smith—are awaiting confirmation.

How many judges are awaiting confirmation?

Seventy-five of President Trump’s judicial nominees have yet to be confirmed. This figure includes 49 nominees who have been approved by the Judiciary Committee and are awaiting only a vote before the full Senate as well as 26 nominees who have yet to appear before the committee.

Of the 75 judicial nominees awaiting confirmation, 56 are nominees to district courts. Thirty-nine of those district court nominees are only awaiting a vote before the full Senate. Thirty-one of the 39 district court nominees were nominated more than six months ago. Seventeen were nominated in April 2018 or earlier.

Over the course of the Trump administration, the highest number of concurrent judicial vacancies occurred in August 2018, when there were 158 vacant judicial seats. The lowest number of concurrent vacancies was in February 2017, when 117 federal judgeships were vacant.

How many district court judges have been nominated to the federal judiciary?

Judge Altman is the 54th Trump nominee to have been confirmed to a District Court by the U.S. Senate. The District Courts with the most Trump appointees are the U.S. District Courts for the Western Districts of Pennsylvania and of Texas, which each have three Trump appointees.

Between 1933 and 2017, the average rate of successful District Court nominations was 27.4 per year. This has increased in recent years, with Bill Clinton (D) averaging 38.1 per year, George W. Bush (R) averaging 32.6 per year, and Barack Obama (D) averaging 33.5 per year. President Trump’s 54 appointments put him at an approximate rate of 24 per year.

What are the longest/oldest vacancies right now?

Judge Malcolm Howard’s seat on the U.S. District Court for the Eastern District of North Carolina has been vacant the longest. Howard retired from full-time service, assuming senior status, on December 31, 2005—a 13-year vacancy. There is no pending nominee for this seat.

The second-longest vacancy is on the U.S. District Court for the Southern District of Texas. Judge Janis Jack vacated the seat on June 1, 2011, when she assumed senior status. President Trump nominated David Morales to fill this seat on April 12, 2018. Morales is currently awaiting a vote in the U.S. Senate.

Which of President Trump’s nominations have been waiting the longest?

Of the 49 Trump nominees who have passed through the Senate Judiciary Committee and are awaiting a vote before the full Senate, four were nominated in 2017, 27 were nominated in the first six months of 2018, 12 were nominated in the latter six months of 2018, and six were nominated in 2019.

The four nominees who began the process in 2017 are Matthew Kacsmaryk (U.S. District Court for the Northern District of Texas), Ryan Holte (U.S. Court of Federal Claims), Howard Nielson (U.S. District Court for the District of Utah), and Daniel Domenico (U.S. District Court of the District of Colorado).

With the nuclear option in place, how fast will nominees be confirmed?

So how did the 30-hour post-cloture debate play out in practice? According to a CRS report last updated in 2017, “The time used in debate is counted against the 30 hours, but so too is the time consumed by quorum calls, roll call votes, parliamentary inquiries, and all other proceedings that occur while the matter under cloture is pending before the Senate.”

The report also noted that, under some circumstances, “the Senate may agree by unanimous consent that the 30 hours be considered to run continuously, even when the Senate is not actively considering the measure or even does not remain in session.”

Before the precedent changed, Adam Jentleson, a former Harry Reid staffer, wrote in a Washington Post op-ed that Senate Democrats could drag out judicial confirmations to four days using the cloture process. George Washington University political scientist Sarah Binder found that the median time spent in post-cloture debate was 22 hours for judicial nominations from 2017 to 2018.

University of Georgia political scientist Tony Madonna expects the four-day confirmation period mentioned by Jentleson to decrease under the new precedent (although this could be affected by whether there is an even split in debate time between Democrats and Republicans). Madonna said it is unclear how much this change will affect the federal judiciary’s vacancy rate because some of the delay comes during the executive branch’s vetting process and before the nominations reach the Senate.

What are people saying about it?

  • Senate Majority Leader Mitch McConnell (R-Ky.) said Senate Democrats were taking advantage of the 30-hour period to delay President Donald Trump’s nominees. In an April 1 op-ed, McConnell wrote, “The all-encompassing, systematic nature of this obstruction is not part of the Senate’s important tradition of minority rights. It is a new departure from that tradition. And this break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected.”

  • Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the change. He said, “Two hours for a lifetime appointment is unacceptable. Two hours for a lifetime appointment with huge influence on people’s lives is unacceptable. It’s ridiculous.”

  • Sen. Joe Manchin (D-W.V) said, “This rule today, this change, and the two that came before it in 2013 and 2017, were not meant to make this place more efficient. They were meant to take power from each and every senator.”

  • Sen. Steve Daines (R-Mt.) said, “What we’re debating here are rules that were never part of the Constitution. The Senate gets to define the rules, and the Senate can change its rules. It is a good healthy debate, and I don’t think you’re going to see a legislative filibuster change in this Congress.”

So, to summarize, here are five things you need to know:

  1. Senate Republicans used the nuclear option to shorten the amount of time that can be spent debating judicial nominees after cloture has been invoked from 30 hours to two hours. The change covers district court nominees and does not apply to circuit court or Supreme Court nominees. Federal district courts are the first level of the federal court system, while the circuit courts and the Supreme Court generally handle appeals from district courts.

  2. This was the third time the Senate has changed Senate precedent using the nuclear option since 2013. In the other two instances, the Senate worked to reduce the cloture threshold for all presidential nominees, including Supreme Court nominees, from 60 votes to 51 votes.

  3. Judge Roy Altman was the first judge confirmed under the new post-cloture debate rules. He will serve as a District Court judge in Florida.

  4. The Senate has confirmed 54 of Trump’s district court nominees so far. Fifty-six more await confirmation, including 39 who only need a vote in the full Senate. Thirty-one of the 39 were nominated more than six months ago.

  5. Political scientist Tony Madonna told Ballotpedia that the maximum period between invoking cloture on a judicial nominee and confirming that nominee will likely be reduced under the new precedent. He said the likely effects of the debate changes on the federal judiciary vacancy rate are unclear because much of the delay comes during the executive branch’s vetting process.

 

This analysis was authored by David Luchs, Rob Oldham, and Sara Reynolds.



March 2019 OIRA review count; highest monthly review count of 2019

In March 2019, the White House Office of Information and Regulatory Affairs (OIRA) reviewed 27 significant regulatory actions issued by federal agencies. The agency approved three rules without changes and approved the intent of 23 rules while recommending changes to their content. One rule was subject to a statutory or judicial deadline.
 
OIRA reviewed 19 significant regulatory actions in March 2018—eight fewer rules than the 27 significant regulatory actions reviewed by the agency in March 2019. During the Obama administration from 2009-2016, OIRA reviewed an average of 42 significant regulatory actions each February.
 
OIRA reviewed a total of 355 significant rules in 2018. In 2017, the agency reviewed 237 significant rules.
 
As of April 1, 2019, OIRA’s website listed 115 regulatory actions under review.
 
OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.
 


In 2018, 143 third party candidates received more votes than the margin deciding the election

While third party and independent candidates win fewer elections than members of the two major parties, they can often affect an election, especially if their supporters would have voted for a different candidate had they not been in the race.
 
In 2018, 143 third party or independent candidates received more votes than the margin between the top two major-party candidates. We’ll refer to them as noteworthy third-party candidates.
 
This figure includes five candidates for U.S. Congress, 16 candidates for statewide office, 115 candidates for state offices elected by districts (such as the state legislature), and seven candidates in local elections within Ballotpedia’s coverage scope.
 
These 143 candidates included 54 Libertarians, 41 independent or unaffiliated candidates, and 19 members of the Green Party. Republicans won 27 of the 51 races with at least one noteworthy Libertarian candidate while Democrats won the remaining 24. Of the 15 races with a noteworthy Green Party candidate, Democrats won 11 while Republicans won four.
 
There were two noteworthy third-party U.S. Senate candidates, both in races Democrats won. In Arizona’s open-seat race, Angela Green (G) received more votes than the margin between Kyrsten Sinema (D) and Martha McSally (R). In West Virginia, Rusty Hollen (L) exceeded the margin between incumbent Joe Manchin (D) and challenger Patrick Morrisey (R). The three noteworthy House candidates, including two Libertarians and one member of the Reform Party, all ran in seats Republicans won.
 
Three 2018 gubernatorial contests, all for open seats, involved noteworthy third-party candidates. Independent candidates Oz Griebel (Conn.) and Greg Orman (Kan.) contested races Democrats won, while the Republican candidate won the Florida gubernatorial election with noteworthy Reform Party candidate Darcy Richardson.
 
Five states with 10 or more noteworthy third-party candidates accounted for more than half (83) of all such candidates in 2018. These states were:
  • Vermont: 32 noteworthy candidates including 17 independents, eight members of the Vermont Progressive Party, and four Libertarians
  • New Hampshire: 17 noteworthy candidates including 15 Libertarians and two independents
  • Maryland: 13 noteworthy candidates including 10 Green Party members, two Libertarians, and one independent
  • West Virginia: 11 noteworthy candidates including six independents, four Libertarians, and one member of the state Green Party affiliate
  • Michigan: 10 noteworthy candidates including six Libertarians, two members of the Working Class Party, and two members of the state Constitution Party affiliate
Additional reading:


SCOTUS weighs the expertise of agencies and courts during oral argument for Kisor v. Wilkie

During oral argument on March 27, 2019, for Kisor v. Wilkie, Justice Stephen Breyer said overturning Auer deference “sounds like the greatest judicial power grab since Marbury v. Madison.” He argued that, without Auer, judges could make decisions best left to experts in executive agencies. Justice Neil Gorsuch held a different view, arguing that federal law requires independent judges to decide all questions of law. Gorsuch said the promise of independent judges seemed to him “a significant promise, especially to the least and most vulnerable among us, like the immigrant, like the veteran” facing an agency in court.
 
The case involves a dispute between James Kisor, a marine veteran, and the U.S. Department of Veterans Affairs (VA) over whether he should receive retroactive disability benefits for PTSD he developed during the Vietnam War. The VA denied Kisor’s initial disability claim in 1983 and granted him benefits in 2006. At issue is the VA’s interpretation of whether certain records were relevant to its decision to grant Kisor benefits with an effective date in 2006 instead of 1983. The U.S. Supreme Court will decide whether to defer to the expertise of the VA or to apply their own view of what the VA regulation means.
 


Federal Register weekly update; fewest final rules added since end of January

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 March 25 to March 29, the number of pages in the Federal Register increased by 1,076 pages, bringing the year-to-date total to 12,046 pages. This week’s Federal Register featured a total of 566 documents, including 474 notices, four presidential documents, 40 proposed rules, and 48 final rules.
 
Three proposed rules and two 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 776 pages. As of March 29, the 2019 total trailed the 2018 total by 1,578 pages.
 
The Trump administration has added an average of 927 pages to the Federal Register each week in 2019 as of March 29. 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: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Federal judge expresses concern over constitutionality of ALJ proceedings

Judge John McBryde of the U.S. District Court for the Northern District of Texas expressed concern on Tuesday in his opinion in Cochran v. SEC over the constitutionality of the administrative law judges (ALJs) at the Securities and Exchange Commission (SEC).
 
The plaintiff, Michelle Cochran, appealed an adverse decision from an SEC ALJ in 2017, but further action on her appeal was stalled as Lucia v. SEC moved through the federal courts. The Lucia case challenged the constitutionality of the SEC’s ALJ appointment process. The United States Supreme Court ultimately ruled in June 2018 the agency’s ALJ appointments violated the U.S. Constitution’s Appointments Clause. Following the Lucia decision, Cochran’s case was reassigned to new proceedings before a different, constitutionally-appointed ALJ.
 
Cochran filed for injunctive relief against the agency proceedings in district court, claiming that the SEC’s ALJs remained unconstitutionally appointed despite ratification by the agency’s commissioners. Cochran argued that the SEC’s ALJs have double for-cause removal protections, which unconstitutionally insulate them from direct removal by the president.
 
McBryde dismissed the case due to the court’s lack of subject matter jurisdiction. However, he expressed concern over the constitutionality of the SEC’s ALJs in his opinion, stating, “The court is deeply concerned with the fact that plaintiff has been subjected to extensive proceedings before an ALJ who was not constitutionally appointed and contends that the one she must now face for further, undoubtedly extended, proceedings likewise is unconstitutionally appointed.”
 
The New Civil Liberties Alliance, a pro bono law firm with a focus on the administrative state, plans to appeal Cochran’s case to the United States Court of Appeals for the Fifth Circuit.
 
Additional reading:


U.S. Supreme Court rejects requests to pause ATF rule banning bump stocks

A new rule banning bump stocks will remain in force while critics challenge it in court. The U.S. Supreme Court rejected two requests to pause the ban while lower courts decide pending cases. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) bump stock rule went into effect on March 26. It requires owners of bump stock devices to destroy them or surrender them to the ATF. Bump stock owners who do not comply could face up to 10 years in prison and a $250,000 fine.
 
The ATF rule followed a February 2018 presidential memorandum signed by President Trump. The memorandum told the attorney general to propose a rule banning devices that turn legal weapons into machine guns. He signed the memorandum in response to the 2017 Las Vegas shooting where a gunman killed 58 and wounded hundreds more.
 
On March 25, the D.C. Circuit issued a stay for members of gun rights groups involved in a lawsuit before the court. That means the rule will not apply to members of the groups until the court decides their case. The 10th Circuit issued a stay for Clark Aposhian, a gun rights lobbyist challenging the ban with the New Civil Liberties Alliance.
 
Bump stocks are a firearm accessory that makes it easier to shoot faster. Supporters of the ban say that the rule protects members of law enforcement and the public from mass shooters. Opponents say agencies like the ATF do not have the constitutional authority to ban bump stocks by redefining legal terms. They argue that only Congress may write criminal laws.
 
Additional reading:


Comparing and contrasting methods for judicial selection in the states

Each state has its own specific method for selecting judges but there are four primary selection types: partisan election, nonpartisan election, legislative election, and gubernatorial appointment.
 
A majority (26) of state supreme courts use gubernatorial appointment, while 22 use either partisan or nonpartisan elections. Two states, South Carolina and Virginia, select state supreme court justices by a vote of the state legislature.
 
What do supporters and opponents say about each method?
  • Proponents of elections say elections allow people to hold judges accountable. Opponents say that such elections allow for the influence of special interests on judicial selection.
  • Proponents of gubernatorial appointments say that it protects the independence of the judiciary by eliminating political campaigns. Opponents say that voters should be given a voice in selecting judges to keep them accountable.
  • Proponents of legislative elections say that they prevent any one authority figure from having too much power, but opponents say that it promotes political inbreeding and create a judiciary primarily made up of past legislators.