Federal Register weekly update; 2019 page total trails 2018 page total by 1,874 pages

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 25 to March 1, the number of pages in the Federal Register increased by 1,310 pages, bringing the year-to-date total to 7,260 pages. A total of 561 documents were included in the week’s Federal Register, including 465 notices, one presidential document, 44 proposed rules, and 51 final rules.
Two 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 970 pages. As of March 1, the 2019 total trailed the 2018 total by 1,874 pages.
The Trump administration has added an average of 807 pages to the Federal Register each week in 2019 as of March 1. 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.
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.

US House passes firearms legislation

The House passed a bill that proposes requiring federal criminal background checks on all firearms sales by a vote of 240-190. Eight Republicans voted with most Democrats in favor of the bill. Two Democrats—Reps. Jared Golden (Maine) and Collin Peterson (Minn.)—voted with Republicans against the bill.
The bill proposes requiring background checks for commercial and private firearms sales. Federal law does not currently require background checks for private sales. The bill would not require background checks for transfers between family members or for temporary use of a gun.
The bill also includes language backed by 26 Democrats and members of the Republican caucus that would require sellers to report the names of individuals residing in the country without legal permission to the U.S. Immigration and Enforcement Agency if they attempt to buy a gun.
The requirement was added during a motion to recommit. It was the second procedural vote where Republicans were able to gain votes from Democrats to alter legislation. An earlier motion that was adopted condemned anti-Semitism and was attached to a House resolution barring U.S. involvement in the Yemeni civil war. According to Politico, it is rare for the minority party to win a procedural vote. Republicans did not lose a procedural vote from 2011 to 2019 when they were in charge of the House.
The bill now heads to the Senate. President Donald Trump said that he would veto the bill if it is sent to him.

Department of Justice asked U.S. Supreme Court to narrow Auer deference

The Department of Justice (DOJ) asked the U.S. Supreme Court to limit, but not throw out, Auer deference in its legal brief for the upcoming case Kisor v. Wilkie. Auer deference, also called Seminole Rock deference, requires federal courts to yield to agency interpretations of ambiguous regulations made by the same agency unless the interpretation is plainly wrong or is inconsistent with the regulations.
The DOJ raised several concerns about Auer deference in its brief filed on February 25, 2019:
  • It has an unclear historical basis.
  • The U.S. Supreme Court has not articulated a consistent rationale for it.
  • It is more difficult to argue that Auer deference is based on implicit congressional delegation of interpretive authority than Chevron deference.
  • It is in tension with the distinction between interpretive and legislative rules found in the Administrative Procedure Act (APA).
  • It can cause practical problems for those subject to regulations.
In light of those objections, the DOJ asked the court to limit Auer deference. It argued that reviewing courts should be able to question unreasonable agency interpretations of regulations. The brief also said that courts should only defer to agency interpretations that were issued with a fair notice to those subject to the relevant regulations, that were consistent with prior agency views, that rested on agency expertise, and that represented the considered view of the agency and not the view of a low-level employee.
Auer deference was first described in Seminole Rock in 1945 and was established by Auer v. Robbins in 1997. Although the DOJ asked the court to limit Auer deference, it specifically asked them not to overturn Seminole Rock and Auer in their entirety. The DOJ made several arguments against throwing out Seminole Rock and Auer:
  • Auer deference has been part of administrative law for decades (regulated parties have relied on decisions based on Auer to conduct their business).
  • Narrowing Auer deference would cause less disruption than overturning it.
  • Eliminating Auer deference would undermine the certainty and predictability of the regulatory environment because agency guidance would become less reliable.
  • Auer deference promotes political accountability for regulatory policy and uniformity in federal law.
  • Auer deference respects the scientific and technical expertise of agencies.
The U.S. Supreme Court is set to hear oral arguments in Kisor v. Wilkie on March 27, 2019.

Local and special state legislative elections set for Tuesday

Elections are taking place in a number of states on Tuesday, March 5, 2019. They include:
  • Four state legislative special elections are happening across the Kentucky State Senate and Minnesota, Rhode Island, and Texas House of Representatives.
  • Municipal elections are scheduled in Tampa and St. Louis. Tampa voters are electing a new mayor and members to all seven of its city council seats. St. Louis is holding primaries for 15 city council seats.
  • The Los Angeles Unified School District is holding a special election to fill a vacancy on the Board of Education. Heading into the special election, the board is split 3-3 between members supported by United Teachers Los Angeles (UTLA) and those supported by the California Charter Schools Association (CCSA).
  • Ten local ballot measures are on the ballot in California across the counties of Los Angeles, El Dorado, Fresno, and Sonoma.
Follow Ballotpedia on Tuesday night to learn the results.

47 state legislators term-limited in the 2019 elections

Louisiana is the only state holding regular elections in 2019 with state lawmakers who are subject to term limits. In total, 47 (33 percent) of 144 state legislators in Louisiana are ineligible to run for office because of term limits. Last year, 271 state legislators were termed out of office. The filing deadline for candidates to run in Louisiana is August 8, 2019. Mississippi, New Jersey, and Virginia are also holding state legislative elections in 2019.
Of the 15 state legislatures with term limits, Louisiana is the only state where term limits were imposed by the state’s lawmakers, rather than through the ballot initiative process. Under Louisiana’s term limits, state lawmakers can serve no more than three four-year terms. The state’s term limits law was enacted in 1995. The first year that term limits impacted the ability of incumbents to run for office was in 2007.
In the Senate, 16 state senators—four Democrats and 12 Republicans—are term-limited in 2019. That is 41 percent of the chamber. In the 2015 elections, seven senators were term-limited. Democrats gained one seat in that election, but Republicans still held a 25-14 majority.
In the House, 31 state representatives—13 Democrats, 17 Republicans, and one independent—are term-limited in 2019. That is 30 percent of the chamber. In the 2015 elections, 15 representatives were term-limited. Republicans gained two seats in the election and held a 61-42 majority with two independent members.
Louisiana is one of 14 states with a divided government. Republicans control the state Senate by a 25 to 14 margin and the state House by a 59 to 36 margin with three independent members and seven vacancies. The governor’s office is held by a Democrat, John Bel Edwards. Louisiana does not have a state government trifecta. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers.

Do you know how many trifecta changes have occurred since 2010?

A state government trifecta occurs when one political party holds the governorship, a majority in the state Senate, and a majority in the state House. If one party does not control all three offices, they are considered under divided government.
Since November 2010, there have been 62 trifecta changes across the country.
  • Republicans gaining a trifecta (20)
  • Democrats losing a trifecta (16)
  • Democrats gaining a trifecta (15)
  • Republicans losing a trifecta (11)
Colorado has had the most trifecta changes in that span with four. It has become a Democratic trifecta twice and also become a divided government twice.
Six other states (Maine, Nevada, New Hampshire, New York, North Carolina, and Wisconsin) have experienced three trifecta status changes over the last eight years.
During this time, state legislative elections during midterms have caused the most changes in trifecta status. The year with the most was 2010, where 21 states had a trifecta status change. 2014 had 11 trifecta changes, while 2018 had 10. The other even-year elections of 2012 and 2016 combined for 15, with 8 and 7, respectively.

How do recalls work in each state?

In some areas of the country, citizens can use the recall process to remove elected officials from office before their term is completed. This process typically includes the circulation of petitions by recall organizers, the evaluation of signatures by election officials, and a public vote if the petitions are deemed to have sufficient valid signatures.
There are 39 states that allow citizens to recall local elected officials, and 19 states permit the recall of state officials. Of those 19 states, citizens in 10 of them can recall any kind of state-level elected official. Seven of the states only allow citizens to recall state executives and legislators, but not appellate judges. Rhode Island only permits the recall of state executives, and Illinois only permits the recall of the governor.
In Virginia, recalls take the form of petitions to the state’s circuit courts. Virginia laws allow local officials to be recalled, but it is unclear whether a state official can be recalled. There is no precedent of a state legislator or governor in Virginia having faced recall. Virginia is the only state not to use elections for its recall process.
Eleven states do not permit the recall of elected officials. These states are Delaware, Indiana, Iowa, Kentucky, Mississippi, New Hampshire, New York, Pennsylvania, South Carolina, Utah, and Vermont.

How states fill current and upcoming supreme court vacancies

There are two current vacancies on state supreme courts, with another three planned based on scheduled retirements.
The current vacancies are in Kentucky and South Dakota, and the pending vacancies are in Arizona, North Carolina, and Virginia.
States fill their supreme court vacancies in a number of ways. Here’s how the states with current or upcoming vacancies fill unexpected openings:
  • Kentucky, South Dakota, and Arizona: a successor is chosen by the governor from a list of names compiled by a nominating commission. They are among the 24 states that use this form of assisted appointment for their court of last resort.
  • North Carolina: vacancies are filled by the governor, without him or her having to choose from a list supplied by a commission. It is one of four states that fills vacancies by gubernatorial appointment.
    • This year, Gov. Roy Cooper (D) chose sitting justice Cheri Beasley to fill the vacant chief justice position. She will take the seat on March 1.
  • Virginia: vacancies are filled by a majority vote of the House of Delegates and state Senate. It is one of two states that fills vacancies this way.
    • On February 14, 2019, the General Assembly appointed Virginia Court of Appeals Judge Teresa M. Chafin to fill a vacancy on the court. She will join the court on September 1.

Legislators consider initiative and referendum process following increased initiative activity over the last three years

As direct democracy receives more attention so do the processes that govern how measures get on the ballot, the rules for support and opposition campaigns, the requirements for approval, and other details. In 2016 and 2018, citizen-initiatives were more prominent in the political landscape than they had been for several election cycles.
Voters directly decided nearly 150 issues over the last three years through initiative and veto referendum signature petitions. More than 200 other statewide ballot measures were sent to voters in the last three years by state legislatures or automatically referred by state laws.
So far in 2019 legislative sessions, 121 legislative proposals concerning ballot initiatives, veto referendums, legislative referrals, local ballot measures, and recall have been introduced in 30 states. Two initiatives directly related to initiative and referendum laws were also filed in Missouri and South Dakota targeting the 2020 ballot.
  • Laws concerning total signature requirements for initiatives and veto referendums or recalls were introduced in five states; in Missouri and Utah, the bills were designed to increase the total number of signatures required for citizen initiatives.
  • Proposed laws concerning distribution requirements for signature gathering were introduced in Arizona, Arkansas, Missouri, and Montana.
  • In Maine and Massachusetts pay-per-signature bans were introduced.
  • In Oregon, a bill to restrict legislative alteration of future initiatives was introduced.
  • Legislation to increase the supermajority requirement or impose additional vote requirements was introduced in Florida, New Mexico, North Dakota, and Washington.
  • In Missouri, a citizen initiative was filed to prevent state residency requirements, pay-per-signature restrictions, and initiative filing fees. It would also require voter approval for any changes to the initiative and referendum process and establish a system for electronic signatures. Two bills designed to enact initiative filing fees, among other provisions, were introduced in Missouri’s 2019 legislative session.
  • In South Dakota, an initiative to roll back some changes made in 2018 was filed.
  • Proposals were introduced in nine states to establish a process for ballot initiatives, veto referendums, recall, or some combination of the three.
  • 26 states have some form of initiative or veto referendum process. The last state to establish a process for initiatives was Mississippi in 1992.

In 2018, Ballotpedia tracked 203 pieces of legislation related to ballot measures and recall in 34 states by the end of the year. Of those 203, 34 were approved, 140 were rejected or abandoned, and nine were carried over to 2019. The most significant proposals were passed in Michigan and South Dakota.

Michigan legislators reject executive order for first time in 42 years; governor issues revised order

Michigan Governor Gretchen Whitmer (D) issued a revised executive order on February 20, 2019, that restructures the state’s Department of Environmental Quality (DEQ). The Republican-majority Michigan State Legislature voted to reject Whitmer’s original version of the executive order on February 14—the first time state legislators had rejected a governor’s executive order in 42 years.
Whitmer’s executive order aims to create “a principal department focused on improving the quality of Michigan’s air, land, and water, protecting public health, and encouraging the use of clean energy.” The order renames and restructures the DEQ into the Department of Environment, Great Lakes and Energy. The order also establishes an Interagency Environmental Justice Response Team, an Office of Climate and Energy and Office, and a Clean Water Public Advocate, among other organization modifications.
Michigan legislators rejected the original version of the executive order because it eliminated three environmental oversight commissions that legislators had established in 2018. Legislators claimed that the commissions serve to guard citizens against potentially harmful environmental regulations. Whitmer argued that the commissions are dominated by industry leaders and slow down the regulatory process. The new version of the executive order only eliminates one of the three commissions.
The executive order will take effect on April 22 if no action is taken by the state legislature.