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.
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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.
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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.

1,957 candidates responded to Ballotpedia’s Candidate Connection survey in 2018

Ballotpedia introduced a new initiative in 2018: Candidate Connection. We surveyed candidates at the federal, state, and local levels to help voters choose representatives who reflected their values and upheld their ideals.
A total of 1,957 candidates responded. They came from all but two of the 50 states and ran for all levels of government from school board to U.S. Senate. Texans made up the largest portion of respondents in 2018 with 186 answering Ballotpedia’s candidate survey. A majority of respondents—56.06 percent—ran for state legislative office, and 24.37 percent of all respondents won their election bids.
Learn more about these candidates in our new report, which also highlights a few notable candidates who completed the survey, features the respondents who won their elections, and lists all of the 1,957 candidates who sent in answers.

Federal Register weekly update; year-to-date page total exceeds 10,000 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 March 18 to March 22, the number of pages in the Federal Register increased by 1,278 pages, bringing the year-to-date total to 10,970 pages. A total of 620 documents were included in the week’s Federal Register, including 511 notices, five presidential documents, 45 proposed rules, and 59 final rules.
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 1,004 pages. As of March 22, the 2019 total trailed the 2018 total by 1,878 pages.
The Trump administration has added an average of 914 pages to the Federal Register each week in 2019 as of March 22. 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:,_1936-2016

U.S. Supreme Court to reconsider judicial deference to agency interpretations of regulations

The U.S. Supreme Court will soon decide whether courts should still defer to agency interpretations of their own ambiguous regulations. Under Auer deference, courts uphold agency interpretations of ambiguous regulations unless they are plainly erroneous or inconsistent. Supporters of Auer deference see Kisor v. Wilkie as a threat to the foundation of American administrative law while opponents see the case as an opportunity to restore separation of powers principles.
The case is scheduled for oral argument on March 27, 2019.
Auer deference refers to federal courts yielding to agency interpretations of ambiguous regulations made by that agency. The practice comes from precedents established by two U.S. Supreme Court decisions: Bowles v. Seminole Rock & Sand Co (1945) and Auer v. Robbins (1997).
In Kisor, the court will decide whether to overrule those precedents. 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.

Civil service reforms resurface in Trump’s 2020 budget proposal

President Trump’s (R) 2020 budget proposal includes provisions that would impact the structure and internal procedures of the federal civil service.
A selection of the provisions was previously featured in Trump’s three civil service executive orders (E.O. 13837, E.O. 13836, and E.O. 13839) issued in May 2018. These include proposals aimed at removing poor-performing federal employees and streamlining collective bargaining procedures. A federal district judge struck down the bulk of the executive orders in August 2018 and an appeal is currently pending before the United States Court of Appeals for the District of Columbia Circuit.
Additional civil service provisions featured in Trump’s 2020 budget proposal include:
  • Establishing new pay systems for special occupations.
  • Increasing temporary hiring to employ more highly qualified experts.
  • Eliminating certain retirement pensions in favor of contributions to the government’s Thrift Savings Plan.
  • Creating an industry exchange to allow nonprofit employees and academics to temporarily serve on federal projects.
  • Increasing the number of federal interns, which dropped from 35,000 in 2010 to 4,000 in 2018.
  • Re-skilling federal employees who currently serve in transactional positions that can be automated.
Congress must reconcile and approve a set of appropriations bills in order for the president to sign the budget into law.
The federal civil service is made up of all unelected “positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services,” according to the United States Code. The civil service is subdivided into the competitive service, the excepted service, and the Senior Executive Service.

In 2018, 105 state legislative races were decided by less than 100 votes

One-hundred and five of the 6,073 state legislative races in 2018 were decided by fewer than 100 votes. Ninety-eight of these races were in state house races, and seven were in state senate races.
Fifty-four of the races resulted in a change in partisan control—36 favoring Democrats and 18 favoring Republicans. In the seats that did not change control, Republicans held 36 and Democrats held 15.
Seventy-eight of the races (74.3 percent) occurred in state legislative districts with populations of less than 25,000. Districts of this size make up 26.3 percent of all state legislative districts.
The New Hampshire House, which has the smallest legislative districts in the country, had 34 of the races—more than any other chamber. The Vermont House, which has the second smallest districts in the country, had eight races—the second most of all legislative chambers. The other 63 races were spread across 32 chambers. Twenty-two of these chambers had just one race.
One race in this analysis—Alaska House District 1—was critical for partisan control of state governments. Bart LeBon (R) defeated Kathryn Dodge (D) by one vote. His win caused a 20-20 split between Republican-led and Democratic-led coalitions in the Alaska House. Control was eventually split between the parties after a month-long period where neither party had control.

Judge restores Obama-era compensation reporting requirements blocked by Trump administration

D.C. District Court Judge Tanya S. Chutkan set aside a decision to delay and review an Obama-era requirement that employers submit pay data along with other employee information. Her March 4 decision held that the Trump administration’s delay was illegal because it violated the requirements of the Administrative Procedure Act (APA).
Since 1966, the Equal Employment Opportunity Commission (EEOC) has required employers with over 100 employees to submit an annual report with information about employees’ sex, race and ethnicity, sorted by job category. In September 2016, the Office of Management and Budget (OMB) approved an EEOC request to add earnings and hours worked to the reporting requirements.
In September 2017, the OMB directed the EEOC to announce a stay for the effective date of the pay data collection requirements for the duration of an OMB analysis. The Office of Management and Budget said that it was reviewing the new data collection forms under the Paperwork Reduction Act (PRA), which aims to minimize the burdens of information requests from federal agencies. The National Women’s Law Center (NWLC) sued, saying that the OMB had violated both the PRA and the APA when it issued a stay for the pay data collection requirements.
Judge Chutkan ruled that the OMB’s action staying the EEOC’s collection of pay data failed the APA’s arbitrary-or-capricious test. The test comes from Section 706 of the APA and requires judges to invalidate agency actions if the agency fails to consider all relevant factors or gives an explanation for its actions that is implausible or that runs counter to the evidence. She said that OMB’s decision to issue the stay “totally lacked the reasoned explanation that the APA requires.” Judge Chutkan rejected the government’s request for Auer deference, which requires courts to yield to agency interpretations of their own ambiguous regulations. She said that courts do not defer to an agency’s unsupported suppositions.
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2020 Democratic candidates campaign in Iowa State Senate district ahead of special election

On March 19, 2019, Cedar Falls School Board member Eric Giddens (D) and former state Rep. Walt Rogers (R) are running in a special election for the District 30 seat in the Iowa State Senate. The previous officeholder, Jeff Danielson (D), resigned on February 14, 2019. The two candidates were chosen by party conventions rather than primary elections.

Republicans currently hold a 32-17 majority in the chamber. If Rogers wins, Republicans will hold 33 seats. If Giddens wins, Democrats will hold 18 seats.

Still, the race is drawing attention as current and potential candidates for the 2020 Democratic presidential nomination are coming to support and campaign for Giddens, trying to earn the favor of state and local party members in advance of the state caucus.

By election day, Sen. Elizabeth Warren (D-Mass.), Gov. Steve Bullock (D-Mont.), former Rep. Beto O’Rourke (D-TX), Sen. Amy Klobuchar (D-Minn.), and Sen. Cory Booker (D-N.J.) will have made appearances at events for Giddens or held their own campaign events in the district. Other 2020 hopefuls, like Sens. Kamala Harris (D-Calif.) and Kirsten Gillibrand (D-N.Y.), have sent campaign staff to canvass for Giddens.

Kevin Giken, the executive director of the Iowa Democratic Party, said the candidates coming to the district “shows that they’re committed to actually seeing Iowa Democrats succeed, and giving back resources rather than taking resources.”

Rogers said that the campaign visits would create an opportunity to nationalize the race. He has called his opponent an “avowed socialist” for donating to the campaign of Sen. Bernie Sanders (D-Vt.) and said that their race was “sort of a microcosm of what’s happening in the country because I think socialism is going to be an issue in the coming election as well.”