New rule blocks certain people from receiving benefits on others’ behalf

A new rule will use background checks to ensure that people convicted of certain crimes cannot receive benefits from Social Security on behalf of impaired beneficiaries. The final rule published on February 15, 2019, by the Social Security Administration (SSA) implements requirements outlined in a 2018 law.
Under the law, and the new rule, people convicted of crimes such as kidnapping, sexual assault, fraud, and forgery may not manage benefit payments for impaired recipients of certain federal benefits. SSA will conduct background checks at least once every five years on all such people who manage benefits. The final rule will go into effect on March 18, 2019.
A final rule, in the context of administrative rulemaking, is a federal administrative regulation that went through the proposed rule and public comment stages of the rulemaking process and is published in the Federal Register with a scheduled effective date. The published final rule marks the last stage in the rulemaking process and includes information about the rationale for the regulation as well as any necessary responses to public comments.

Federal Register weekly update; average 2019 weekly page total continues to climb

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 18 to February 22, the number of pages in the Federal Register increased by 1,274 pages, bringing the year-to-date total to 5,950 pages. A total of 540 documents were included in the week’s Federal Register, including 456 notices, three presidential documents, 31 proposed rules, and 50 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 1,058 pages. As of February 22, the 2019 total trailed the 2018 total by 2,214 pages.
The Trump administration has added an average of 744 pages to the Federal Register each week in 2019 as of February 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.
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.

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.
Additional reading:

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.

Obama-Obama-Trump pivot counties in 2018 state legislative elections

There are 206 pivot counties in the country-those that voted for Barack Obama (D) in both 2008 and 2012 and Donald Trump (R) in 2016. On November 6, 2018, 87 of the nation’s 99 state legislative chambers held regularly-scheduled elections for 6,073 seats. Of those, 453 state house districts and 138 state senate districts intersected with pivot counties. These 591 state legislative districts accounted for approximately 10 percent of all state legislative districts up for election in 2018.
Sixty-one districts switched partisan control in the 2018 elections. The elections resulted in a net change of 19 seats in favor of Democrats. The most common changes were:
  • Republican to Democrat: 31 districts
  • Democrat to Republican: 20 districts
  • Split districts to all-Democrats: 10 districts
Democratic candidates for state legislatures in districts that intersected with a pivot county won a net total of 19 seats (3.2 percent of the total they controlled going into the election). Nationally, the party gained 308 seats (9.7 percent of the total they controlled going into the election).
Republicans lost a lower percentage of these seats than they did nationally, 3.3 percent to 7.2 percent.
Across the country, Democrats gained control of six state legislative chambers from Republicans, while losing one chamber (Alaska House) to a power-sharing agreement.

Reverse pivot counties in 2018 U.S. House elections

Democratic candidates for the U.S. House carried all six reverse pivot counties in 2018. Reverse pivot counties are counties that voted for John McCain (R) in 2008, Mitt Romney (R) in 2012, and Hillary Clinton (R) in 2016.
The average margin of victory for 2018 U.S. House candidates in these counties was 11.05 percent. Cobb County, Georgia, had the lowest margin of victory with 7.18 percent and Henry County, Georgia, had the highest with 14.59 percent.
In five of the six counties, the Democratic U.S. House candidate had a larger margin of victory than Clinton did in 2016. Her average margin of victory in 2016 in these counties was 4.96 percent.
There are six reverse pivot counties in the country from four states: Orange County, California; Cobb County, Georgia; Gwinnett County, Georgia; Henry County, Georgia; Anne Arundel County, Maryland; and Fort Bend County, Texas. Their opposite, pivot counties, voted for Barack Obama twice and Donald Trump in 2016.

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.