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President Trump vetoes three resolutions related to arms sales, bringing his veto total to five

President Donald Trump (R) vetoed three congressional resolutions limiting sales and export of Paveway laser-guided bombs July 24.
 
Senate Joint Resolutions 36, 37, and 38 were introduced by Sen. Bob Menendez (D-N.J.) on June 5, 2019. They prohibited elements of a June 3 proposal involving export of the Paveway II and Paveway IV laser-guided bomb system to six countries, including the United Kingdom and Saudi Arabia.
 
All three resolutions passed the U.S. Senate on June 20 and the U.S. House on July 17. None received two-thirds support, which would be required for a veto override, in either chamber.
 
In his veto messages, President Trump said that the three resolutions would limit U.S. security capabilities, prolong the war in Yemen, threaten the safety of U.S. citizens living in Saudi Arabia, and “damage the credibility of the United States as a reliable partner by signaling that we are willing to abandon our partners and allies at the very moment when threats to them are increasing.”
 
President Trump has issued five vetoes since taking office. During their two terms in office, Presidents Barack Obama (D) and George W. Bush (R) each issued 12 vetoes, while Bill Clinton (D) issued 37 vetoes.
 


The Daily Brew: Oregon voters to decide cigarette tax increases

Today’s Brew highlights an Oregon measure raising cigarette taxes for healthcare programs + an optometry-related veto referendum in Arkansas  
The Daily Brew
Welcome to the Friday, July 26, Brew. Here’s what’s in store for you as you start your day:

  1. Oregon amendment that would increase cigarette taxes goes to voters in 2020
  2. Arkansas group attempts to qualify 2020 referendum on bill that allows optometrists to perform surgical procedures
  3. What’s the tea?

Oregon amendment that would increase cigarette taxes goes to voters in 2020

Oregon voters will decide a state constitutional amendment in 2020 that would increase the tax on cigarettes and create a new tax on e-cigarettes to fund healthcare-related programs. The new tax revenue would be appropriated to the Oregon Health Authority for medical and healthcare-related programs such as the state’s Medical Assistance Program, mental health programs, and other programs concerning tobacco and nicotine health issues.

If approved by voters, the state would apply the following taxes beginning Jan. 1, 2021:

  • Increase the cigarette tax from $1.33 per pack to $3.33 per pack;

  • Impose a tax on inhalant delivery systems (such as e-cigarettes) at a rate of 65% of the wholesale price; and

  • Increase the cap on cigar taxes from $0.50 to $1.00.

Oregon’s current tax rate on cigarettes of $1.33 per pack is the 32nd highest rate in the country. 

The measure was introduced at the request of Gov. Kate Brown (D). The state House passed the amendment 39 to 21, largely along party lines. Most Democrats voted for the proposal, while most Republicans opposed it. One Democratic representative voted against the measure, and two Republican representatives voted in favor. The Senate passed the measure 18-8, also along party lines. Four Republican senators were absent or excused. In Oregon, legislature-referred statutes are not subject to gubernatorial veto and do not require the governor’s signature.

The last state to vote on a cigarette tax measure was Montana, in 2018, where voters defeated that measure, 52.7% to 47.3%. That measure would have raised taxes on tobacco products, including cigarettes, electronic cigarettes and vaping products, and chewing tobacco. The state would have used the revenue to extend and fund expanded eligibility of Medicaid coverage under the Affordable Care Act as well as other healthcare-related programs.

Cigarette tax rates vary from state to state and, sometimes, between localities within a state. Cigarettes are also subject to a federal excise tax of approximately $1.00 per pack. Washington, D.C. has the highest cigarette tax rate of $4.50 per pack and Missouri levied the lowest state-imposed cigarette tax of $0.17 per pack. Eighteen states, including Oregon, levy a tax rate ranging from $1.00 to $1.98 per pack.  

Cigarette tax by state

E-cigarette (vapor) taxes are levied by state or local governments and vary by method. Some authorities tax a percentage of the wholesale price, while others tax per unit or milliliter of e-liquid. Eighteen states have enacted a tax on vapor products. Washington, D.C., has the highest vapor tax at 96% of the wholesale price. Oregon has not enacted a tax on e-cigarettes or vapor products.

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Arkansas group seeks 2020 referendum on bill allowing optometrists to perform surgical procedures

In other ballot measure news, an Arkansas group—Safe Surgery Arkansas—submitted more than 84,000 signatures in support of a veto referendum in 2020 regarding HB1251, a bill that allows optometrists to perform surgical procedures. 

Petitioners were required to submit 53,491 signatures—6% of votes cast for governor in the last gubernatorial election—by July 23 to qualify the veto referendum for the ballot.

Safe Surgery Arkansas seeks to overturn HB 1251 and are advocating for a ‘no’ vote on the referendum. HB 1251 amended the definition of “practice of optometry” in Arkansas law to allow optometrists to perform certain surgical procedures, such as injections, removal and biopsy of skin lesions with low risk of malignancy, and specific laser procedures that are sometimes required after cataract surgery or are related to the treatment of glaucoma. 

The state House approved HB 1251 by a vote of 70-19. Fifty-seven Republicans joined 13 Democrats in approving the measure and 11 Republicans and eight Democrats voted against. The state Senate passed the bill 25-8, with 20 Republicans joining five Democrats in favor and five Republicans joining three Democrats in opposition. 

Safe Surgery Arkansas states on its website that the bill “jeopardizes patient safety and lowers the quality of surgical eye care in the state of Arkansas. This new law would allow optometrists— who are not medical doctors or trained surgeons— to perform delicate surgery on the eye and surrounding tissues using scalpels, lasers, and needles.”

Arkansans for Healthy Eyes is leading the opposition to the veto referendum effort and advocating for a ‘yes’ vote. A representative from the group said the bill “gives Arkansas patients better access to quality care by allowing optometrists to perform more of the procedures we are absolutely qualified to safely perform.”

Since the state’s first veto referendum in 1934, 10 such measures have appeared on the ballot in Arkansas. The most recent referendum was decided by voters in 2004. In all but one instance, the referendum efforts resulted in the targeted law being repealed or overturned.

Nationwide, 521 veto referendums have appeared on the ballot in 23 states since the first veto referendum in 1906. Voters have repealed 340—or 65.3 percent—of the targeted laws. The states with the most veto referendums were North Dakota (75), Oregon (68), and California (48). The states that allowed for veto referendums but had the fewest number of them were Wyoming (1), Nevada (2), and New Mexico (3).

What's the tea?

We’re debuting a new feature in the Brew—”What’s the tea?”—where I’ll ask a question about a political topic and you can tell us what you think.

All you need to do is read the question and click on the answer that most closely matches your opinion. That’s it. We’ll generally do this at the end of the week and share the results with you the following week.

Sound good? Let’s get started.

Will you be watching next week’s Democratic presidential debates?


 

 



Signatures submitted for Arkansas optometry referendum

Petitioners for the Arkansas Practice of Optometry Referendum reported submitting more than 84,000 signatures by the July 23 deadline to qualify a veto referendum on House Bill 1251 for a statewide vote in 2020. A total of 53,491 signatures need to be valid to qualify the measure for the ballot. The requirement is based on 6% of votes cast for the office of governor in the last gubernatorial election. Sponsors of the referendum petition effort hope voters will overturn HB 1251 and are advocating for a no vote on the referendum.
 
HB 1251 amended the definition of “practice of optometry” in state law to allow optometrists to perform certain surgical procedures including the following:
  • injections, excluding intravenous or intraocular injections;
  • incision and curettage of a chalazion;
  • removal and biopsy of skin lesions with low risk of malignancy, excluding lesions involving the lid margin or nasal to the puncta;
  • laser capsulotomy; and
  • laser trabeculoplasty.
 
Safe Surgery Arkansas is sponsoring the veto referendum petition seeking to overturn HB 1251. The group argues that the bill “jeopardizes patient safety and lowers the quality of surgical eye care in the state of Arkansas. This new law would allow optometrists— who are not medical doctors or trained surgeons— to perform delicate surgery on the eye and surrounding tissues using scalpels, lasers, and needles. HB 1251 removes … critical patient safeguard[s] by granting optometrists broad surgical privileges to operate on the eyes while bypassing these critical training requirements.”
 
Arkansans for Healthy Eyes is leading the campaign in opposition to the veto referendum effort and in support of HB 1251. The group is advocating for a yes vote on the referendum. Arkansas for Healthy Eyes argued that the bill “gives Arkansas patients better access to quality care by allowing optometrists to perform more of the procedures we are absolutely qualified to safely perform… For some patients, especially in rural parts of the state, being able to receive enhanced care from their optometrist, instead of having to go through the wait, travel, and added cost of a specialist visit, may mean the difference between getting a needed procedure, or going without.”
 
HB 1251 was approved in the House on March 6, 2019, in a vote of 70-19. Among Democratic representatives, eight voted against, 13 voted in favor, and three were absent or did not vote. Among Republican representatives, 11 voted against, 57 voted in favor, eight were absent or did not vote for or against the bill. The bill was approved in the Senate on March 20, 2019, in a vote of 25-8. Among Democratic senators, three voted against, five voted in favor, and one was absent or did not vote. Among Republican Senators, five voted against, 20 voted in favor, and one was absent or did not vote.
 
Since the first in 1934, 10 veto referendum measures have appeared on the ballot in Arkansas. The most recent referendum was on the ballot in 2004. In all but one case, the referendum efforts resulted in the targeted law being repealed or overturned.
 
Nationwide since the first in 1906, 521 veto referendums appeared on the ballot in 23 states. Voters repealed 340 (65.3 percent) of the targeted laws. Voters upheld 181 (34.7 percent) of the targeted laws. The states with the most veto referendums were North Dakota (75), Oregon (68), and California (48). The states that allowed for veto referendums but had the least number of them were Wyoming (1), Nevada (2), and New Mexico (3).


Harris, Biden, and Sanders top PredictIt Democratic primary markets

Ballotpedia is tracking PredictIt markets relating to the 2020 presidential election, including the general election and Democratic and Republican primaries.
 
PredictIt is an online political futures market in which users purchase shares relating to the outcome of political events using real money. Services such as PredictIt are being used to gain insight into trends over the lifetime of an election and the event’s probable outcome.
 
While Sen. Kamala Harris leads the overall Democratic primary market at 25 cents a share as of Wednesday, PredictIt primary election markets in early states favor other candidates. Former Vice President Joe Biden leads in Iowa, South Carolina, and Nevada, while Sen. Bernie Sanders is on top in New Hampshire.
 
In the Democratic primary market, only five candidates are trading at 10 cents or more: Harris, Sen. Elizabeth Warren, Biden, Sanders, and South Bend Mayor Pete Buttigieg.
 
In the general election, PredictIt markets favor a winner from the Democratic Party over a winner from the Republican Party, 53 cents to 48 cents.


Signature deadlines nearing for 2019 Colorado initiatives

Signature deadlines for pending ballot measures in Colorado:
  • 2020 veto referendum petitions: 124,632 valid signatures due by August 1, 2019
  • 2019 ballot initiative petitions: 124,632 valid signatures due by August 5, 2019
The number of required signatures increased 26.54% for Colorado ballot measures following the 2018 elections due to higher voter turnout. Initiative signature requirements in Colorado are calculated by taking 5 percent of the number of total votes cast for the office of Colorado Secretary of State. Citizen initiative signature requirements increased in 13 states based on 2018 elections. In these 13 states, the signature requirement increases ranged from 3.2 percent in Maine to 70.3 percent in California, where the signature requirements are higher than they’ve ever been in the state’s 106 years of direct democracy.
 
For 2019 ballot initiatives, proponents must submit signatures by August 5, 2019. Just one measure was approved for signature gathering to qualify for the 2019 ballot in Colorado: Initiative #22, the Colorado Oil and Gas Severance Taxes Initiative. This initiative was designed to change the tax structure for oil and gas severance taxes. Proposed changes include eliminating a tax credit given to oil and gas producers for property taxes paid. Though the initiative was approved for signature gathering on March 5, 2019, it is unclear if the petition is being actively circulated.
 
Signatures for veto referendum petitions targeting the 2020 ballot are due on August 1, 2019. Two veto referendum petitions were filed with the Secretary of State: the Early Childhood Development Districts Referendum (targeting House Bill 1052) and the National Popular Vote Referendum (targeting Senate Bill 42). Sponsors of the referendum efforts seek to put bills passed by the legislature in the 2019 session to a statewide vote of the people in the hopes that voters will overturn the bills.
 
The Early Childhood Development Districts referendum concerns House Bill 1052. HB 1052 was designed to create special districts to provide early childhood development services for children from birth through 8 years of age. Under the bill, early childhood development services include early care and educational, health, mental health, and developmental services.
 
The National Popular Vote referendum concerns Senate Bill 42. SB 42 was signed by Colorado Governor Jared Polis (D) on March 15, 2019. SB 42 would award all of Colorado’s nine electoral votes to the winner of the national popular vote. SB 42 joined Colorado into the National Popular Vote Interstate Compact. The National Popular Vote (NPV) refers to the concept of allocating a state’s presidential electors to the candidate who wins the national popular vote regardless of the state results in a presidential election. As of July 2019, 15 states (and Washington, D.C.) representing 196 electoral college votes adopted legislation to be a part of the National Popular Vote Interstate Compact. The compact cannot take effect until enough states have joined that the system would possess the required 270 of 538 electoral votes to elect a president.
 
The most recent veto referendum on the ballot in Colorado appeared on the ballot in 1932. From 1912 to 1932, 13 veto referendums were on the ballot. Of the 13 referendum efforts, 10 were successful in overturning the targeted legislation. The targeted legislation was upheld on three occasions.
 


Resolutions aim to restore state and local tax deduction via the Congressional Review Act

Congressional Review Act (CRA) resolutions introduced in both houses of Congress on July 16 aim to allow states and local governments to let taxpayers donate more to charity in exchange for paying less in state and local taxes. The resolutions would repeal an Internal Revenue Service (IRS) regulation designed to prevent states and local governments from helping taxpayers avoid the limits placed on state and local tax (SALT) deductions by the Tax Cuts and Jobs Act of 2017. According to the IRS regulation, taxpayers lose some of their federal charitable tax deduction based on how much of a deduction their state or local governments provide. If the CRA resolutions pass, many residents of states and cities that charge higher taxes would pay less in federal income taxes.
 
Senate Minority Leader Chuck Schumer (D-N.Y.) and Representative Mikie Sherrill (D-N.J.) introduced companion resolutions that would undo the IRS regulation and attracted 61 Democratic cosponsors and 1 Republican cosponsor as of July 19.
 
Under the Congressional Review Act, the resolutions would need to pass both houses of Congress and receive President Trump’s signature to repeal the IRS regulation.
 
The Congressional Review Act (CRA) gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, 17 out of the over 90,767 rules published in the _Federal Register_ during that time have been repealed using the CRA. 13 additional attempts either failed to pass through Congress or were vetoed.
 


President Trump to nominate Eugene Scalia to lead U.S. Department of Labor

President Trump announced on July 18, 2019, that he would pick lawyer Eugene Scalia to replace Alexander Acosta as secretary of labor. Scalia is son of the late U.S. Supreme Court Justice Antonin Scalia and was responsible for all Labor Department litigation and legal advice on rulemakings and administrative law during George W. Bush’s presidency.
 
According to his law firm biography, Eugene Scalia also served as special assistant to U.S. Attorney General William Barr from 1992 to 1993 and has written over 20 articles and papers on labor and employment law and constitutional law.
 


Gillibrand calls for excise and carbon taxes to address climate change

 Ballotpedia's Daily Presidential News Briefing

July 25, 2019: Kirsten Gillibrand introduced a $10 trillion climate change proposal. Five Democrats will speak at a presidential forum hosted by the National Urban League.        

Daily Presidential News Briefing - Poll One (July 9 - 18)

Daily Presidential News Briefing - Poll Two (July 9 - 18)

Notable Quote of the Day

“Self-funded candidates have had mixed track records. Political scientist Jennifer Steen look at success rates of self-funders in congressional races in her 2006 book, Self-Financed Candidates in Congressional Elections.

She found that, on average, candidates’ odds of winning actually decreased as they spent more on their campaigns, even among candidates who had political experience.

A prominent counterexample, of course, is President Donald Trump, who gave $66 million to his 2016 campaign, though he also raised an additional $130 million from individual donors.
But in 2018, 41 candidates ultimately self-funded to the tune of at least $1 million. Only nine of them won.

Many of the candidates who rely on self-funding are, like Trump, wealthy political outsiders. For them, personal money is a useful buoy until donors begin to take their campaign seriously. Candidates who self-fund typically list their personal contributions as loans to their campaign, though many never raise enough from donors to pay themselves back. Given their poor electoral chances, self-funders also run the risk of losing big in more ways than one.”

– Jessica Piper, Center for Responsive Politics

Democrats

  • Joe BidenCory BookerJohn DelaneyAmy Klobuchar, and Tim Ryan will speak at a presidential forum Thursday hosted by the National Urban League in Indianapolis, Indiana.
  • Bill de Blasio said he supported forming a commission to examine reparations for black Americans affected by slavery.
  • Booker and Beto O’Rourke held campaign events in Flint, Michigan, following appearances at the NAACP national convention.
  • Steve Bullock wrote an op-ed in Sioux City Journal on Social Security, Medicare, and pharmaceutical costs.
  • Pete Buttigieg discussed his military service in the final episode of the Reclaiming Patriotism podcast. He also attended at least two fundraisers in the Bay Area in California Wednesday.
  • Julián Castro spoke about decertifying police officers involved in shootings of unarmed civilians and Ben Carson’s performance as secretary of housing and urban development in an interview on The Clay Cane Show.
  • Kirsten Gillibrand introduced a $10 trillion climate change proposal Thursday. Gillibrand called for net-zero carbon emissions by 2050, an excise tax on fossil fuel production, and a $52 per metric ton carbon tax, among other policies.  
  • Michael Kempner, who helped raise more than $3 million for Barack Obama’s 2012 reelection campaign as a bundler, will host a fundraiser for Kamala Harris in August.
  • John Hickenlooper will campaign Thursday in Sigourney, Iowa. 
  • Seth Moulton introduced the Automatic Listening and Exploitation Act, which would allow the FTC to penalize companies whose smart devices record user conversations without prompting.
  • In a newly released plan on racial inequality in educationO’Rourke called for increasing diversity among educators, ending disparities in disciplinary actions, and offering student debt relief for teachers.
  • Bernie Sanders released a plan to increase the number of black healthcare professionals, which includes expanding the National Health Service Corps and related programs in underserved areas; increasing the number of nurses, nurse practitioners, and physician assistants; and canceling student debt.
  • Joe Sestak will meet with the Des Moines Register editorial board Thursday.
  • Tom Steyer posted a digital ad calling on Nancy Pelosi to cancel the upcoming congressional recess and conduct oversight of Trump.
  • Marianne Williamson tweeted she opposed the Mauna Kea telescope project in Hawaii.

Republicans

  • Donald Trump vetoed three joint resolutions that would have prohibited certain arms sales in Saudi Arabia, the United Arab Emirates, the United Kingdom, France, Spain, and Italy.

What We’re Reading

Flashback: July 25, 2015

The New York Times profiled Hillary Clinton’s 2016 campaign and ground game in Iowa.



The Daily Brew: Checking in on the PredictIt presidential race market

Today’s Brew highlights the prices for the presidential nominees on PredictIt as of yesterday + summarizes mid-year fundraising by each party’s campaign committees  
The Daily Brew

Welcome to the Thursday, July 25, Brew. Here’s what’s in store for you as you start your day:

  1. Trump (R), Harris (D) lead PredictIt markets for their respective party’s presidential nomination
  2. Republican and Democratic national party committees have raised over $300 million through June
  3. Know students interested in interning with us? Let’s connect!

Trump (R), Harris (D) lead PredictIt markets for their respective party’s presidential nomination

Kamala Harris led the Democratic primary for president as of yesterday afternoon according to PredictIt, an online political futures market in which users purchase shares relating to the outcome of political events using real money. Last election cycle we partnered with PredictIt to share their information with our readers. Throughout the 2020 cycle, we’re bringing Ballotpedia readers periodic updates on what we’re learning from PredictIt.

Ballotpedia is tracking PredictIt markets relating to the 2020 presidential election, including the general election and Democratic and Republican primaries. Here’s a crash course in how PredictIt’s market works:

  • PredictIt has established markets that correspond to real-world events, such as elections.

  • Investors can buy shares in those markets reflecting a particular outcome, such as whether a candidate will win an election. 

  • The price of a share in each contract rises and falls based on market demand.

  • An investor makes money if more and more people also believe that the same outcome will occur, causing the price of the shares he or she owns to increase. 

  • In election markets, the higher the current price of the contract that corresponds to a particular candidate, the more likely the market believes that candidate will win.

Services such as PredictIt are also being used to gain insight into trends over the lifetime of an election and the event’s probable outcome. 

In the Democratic primary market, only five candidates were priced at 10 cents or more as of July 24—Harris, Elizabeth Warren, Biden, Sanders, and Pete Buttigieg. As of the same time, Donald Trump was priced at 89 cents per contract. Here is a screenshot of the pricing for the Democratic presidential nominee market as of yesterday afternoon:

Predict It Widget 

PredictIt has also created markets to allow people to invest in which candidate will win the Democratic caucus or primary in four early presidential contests—Iowa, New Hampshire, Nevada, and South Carolina. As of yesterday afternoon, Bernie Sanders was the favorite to win the New Hampshire primary and Joe Biden was the leading candidate in the other three states.

Click the link below for an overview of the PredictIt markets relating to the 2020 presidential election, including the general election, Democratic primary, and Republican primary.

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Checks and Balances


Republican and Democratic national party committees have raised over $300 million through June  

The Republican National Committee (RNC) outraised the Democratic National Committee (DNC) by more than 2-to-1 for the third straight month, according to July filings with the Federal Election Commission. Republicans led in national and Senatorial committee fundraising while Democrats led in House committee fundraising.

Democrats and Republicans each have three major party committees—a national committee, one dedicated to U.S. Senate elections, and one dedicated to U.S. House elections. National party committees plan their presidential nominating conventions, promote the party’s platform, and raise funds to support candidates for all offices. Each party’s Senate and House campaign committees are dedicated to electing members to their respective bodies through recruiting candidates and providing campaign and financial support.  

The table below shows each committee’s receipts, disbursements, cash on hand, and debts owed through the end of June 2019: 

Party fundraising 

These six committees have raised a combined $310.1 million from January 1 to June 30 for the 2020 election cycle. The three Republican committees raised $176.3 million and the Democratic ones have raised $133.8 million.

Know students interested in interning with us? Let’s connect!

Are you a college or university professor with undergraduate or graduate students passionate about politics, communications, or technology? If so, we want to connect with them for our Fall 2019 internship program.

Our interns assist in a variety of duties on our Editorial, Communications, Tech, or Outreach teams. They’ll learn how to publish content on Ballotpedia, learn about all we do to prevent and detect bias in our resources, and work alongside current staff members.

All interns are paid and work remotely and Ballotpedia is also happy to facilitate credit for internship experience. Our Fall 2019 internship program will run from Monday, August 26 through Friday, December 13. Interns will work approximately 20 hours per week depending on their availability.  

Help spread the word about Ballotpedia’s Fall Internship Program! Students can apply and find more information at the link below.

 

 



Trump to collect citizenship information through executive order instead of 2020 census

The Checks and Balances Letter delivers news and information from Ballotpedia’s Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.

This edition:

In this edition, we review President Donald Trump’s (R) move to acquire citizenship information after federal judges blocked administration efforts to add citizenship status to the 2020 census; an upcoming United States Supreme Court (SCOTUS) case challenging the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program; and a recent SCOTUS ruling that both upheld and limited Auerdeference.

At the state level, we highlight a new Indiana law that moves the state’s administrative law judges (ALJs) from agency control to a centralized panel, as well as a ruling from the Wisconsin Supreme Court upholding the state’s regulatory reform. We also present The Wall Street Journal’s interview with Judge Andrew Oldham of the United States Court of Appeals for the Fifth Circuit on his forthcoming paper examining the Anti-Federalists’ prescience on the rise of the administrative state.

As always, we wrap up with our Regulatory Tally, which features information about the 174 proposed rules and 262 final rules added to the Federal Register in June and OIRA’s regulatory review activity.

The Checks and Balances Letter

Key readings.jpg

In Washington

Trump to collect citizenship information through executive order instead of 2020 census

What’s the story? President Trump announced on July 11, 2019, that his administration would cease efforts to add a citizenship question to the 2020 U.S. census and instead direct federal agencies through executive order to provide the information to the U.S. Department of Commerce.
Commerce Secretary Wilbur Ross approved the citizenship question for the 2020 U.S. census as necessary to improve enforcement of the Voting Rights Act. The proposed question would have asked, “Is this person a citizen of the United States?”
The citizenship question was blocked by three federal district court judges on grounds that it violated the Constitution’s Enumeration Clause and the Census Act, and that the administration failed to follow proper procedure.
By a vote of 5-4, the United States Supreme Court affirmed the legality of a citizenship question on the census but effectively barred the administration from including it by remanding the case, Department of Commerce v. New York, to the agency for review.
The ruling invoked precedent from Citizens to Preserve Overton Park v. Volpe (1971) to evaluate agency decisions beyond the scope of the administrative record.
The dissenting justices argued that the exception opens a new legal avenue for challengers to contest administrative actions based solely on alleged pretextual reasoning by agency decision-makers outside of the administrative record.
Want to go deeper?

SCOTUS agrees to decide whether administrative procedures must be followed to eliminate improperly issued rules

What’s the story? The United States Supreme Court will determine whether the Trump administration can end the Deferred Action for Childhood Arrivals (DACA) program through a memorandum rather than rulemaking procedures after it granted certiorari on June 28 in Department of Homeland Security v. Regents of the University of California.
The case could clarify whether federal agencies must follow the Administrative Procedure Act’s (APA) rulemaking procedures to end programs that were created without following APA procedures. Oral argument is scheduled for November 12, 2019.
The Obama administration created DACA in 2012 to prevent the deportation of young people who were unlawfully brought into the country as children. The program was established through a memorandum rather than APA rulemaking procedures.
The Trump administration on September 5, 2017, rescinded DACA, arguing that the program was unlawful because the Obama administration failed to follow APA rulemaking procedures.
Regents of the University of California sued the administration for failing to follow the APA in rescinding the program.
DHS argued, in part, that the decision to end DACA was exempt from APA rulemaking because it was improperly created.
The United States District Court for the Northern District of California barred the administration from rescinding DACA. The administration appealed to the United States Supreme Court.
Want to go deeper?

SCOTUS upholds and limits Auer deference

What’s the story? The United States Supreme Court on June 26 unanimously (with concurring opinions) upheld Auerdeference—the practice of federal courts deferring to administrative agencies’ interpretations of ambiguous regulations. However, the ruling also limited application of the principle.
The opinion written by Justice Kagan set the following parameters for Auer deference:
  • 1. Auer deference applies only when a regulation is ambiguous. Courts must first consider the text, structure, history, and purpose of a regulation before deferring to an agency’s reasonable interpretation.
  • 2. Whether the reasonable agency interpretation of a regulation is an authoritative or official position of the agency.
  • 3. Auer deference is only appropriate for regulatory matters that fall within agency expertise.
  • 4. An agency’s interpretation must be a “fair and considered judgment” that does not create unfair surprise for those subject to the regulation. Moreover, courts should not defer to agency interpretations that were only adopted in order to assist the agency in a lawsuit.
Justice Gorsuch authored a concurring opinion, joined by Justices Thomas, Alito, and Kavanaugh, that criticized the court for not invalidating Auer altogether, noting the court’s responsibility “to say what the law is and afford the people the neutral forum for their disputes that they expect and deserve.”
The case Kisor v. Wilkie involved a marine veteran who challenged a U.S. Department of Veterans Affairs’ (VA) interpretation of a regulation that determined the effective date of retroactive disability benefits. The United States Supreme Court unanimously vacated and remanded the judgment of the Federal Circuit Court of Appeals, which had failed to consider whether the VA’s regulation had more than one reasonable meaning. The court instructed the Federal Circuit to reconsider its application of Auer deference in the case.
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In the States

Indiana moves ALJ supervision to centralized panel

What’s the story? A new Indiana law shifted oversight of the state’s administrative law judges (ALJs) from state agency supervision to the Office of Administrative Law Proceedings (OALP), housed under the State Personnel Office.
Proponents of Senate Enrolled Act 1223 say that the change protects the independence of ALJs by removing them from agency control.
The OALP has the authority to hire and train ALJs, assign them to cases, and create and enforce a judicial code of conduct.
Eleven agencies have ALJ systems that are governed by separate statutes and, therefore, are exempt from the change.
Want to go deeper?

Wisconsin Supreme Court affirms state REINS Act

What’s the story? The Wisconsin Supreme Court on June 25 ruled 4-2 in Koschkee v. Taylor to affirm that the state’s Department of Public Instruction (DPI) must submit new rules to the governor for approval before they take effect.
Wisconsin’s Regulations from the Executive in Need of Scrutiny (REINS) Act, the first state-level REINS Act signed into law in August 2017 by Governor Scott Walker (R), requires state agencies to obtain gubernatorial approval for proposed regulations.
The Wisconsin Institute for Law and Liberty (WILL) sued former Superintendent of Public Instruction Tony Evers (D) and the DPI in November 2017 for allegedly violating the state REINS Act by failing to submit statements of scope for proposed rules to the State Department of Administration for approval.
Evers and DPI argued that the state superintendent is a constitutional office not subject to gubernatorial control under the REINS Act.
Koschkee v. Taylor affirmed that DPI exercises delegated legislative power when it promulgates rules and, therefore, its rulemaking activities are subject to control by the state legislature. By passing the REINS Act, the state legislature required DPI to obtain gubernatorial approval prior to promulgating new rules.
Want to go deeper?

How the Anti-Federalists foretold the rise of the administrative state

Judge Andrew Oldham of the United States Court of Appeals for the Fifth Circuit spoke to The Wall Street Journal for a July 3 article examining the Anti-Federalists’ views on the evolution of executive power. The Anti-Federalists, Oldham explained, were uneasy about far-reaching executive power. Oldham argues that, in many ways, the Anti-Federalists foresaw the development of the administrative state:

“Judge Oldham is impressed by the prescience of Anti-Federalist concerns ‘about the way executive power would evolve over time.’ In a forthcoming paper for the New York University Journal of Law & Liberty, he quotes the Anti-Federalist Cato (thought to be future Vice President George Clinton), who wrote that the presidency would ‘create a numerous train of dependents’ in the executive branch, so that the president would end up ‘surrounded by expectants and courtiers’—an aristocracy, which might be compared to today’s Washington elite.
“No one in the 18th century could predict the form the federal bureaucracy would take in the 20th century. Yet the Anti-Federalists’ concerns are telling. They worried about ‘the capaciousness of executive power,’ Judge Oldham says, comparing it to ‘the abuses of the past that they’d seen in England.’ The Federalists countered that the separation of powers would prevent any part of the new federal government from becoming too powerful. The legislative, executive and judicial branches were coequal and would check and balance one another.
“Yet in recent decades, as Christopher DeMuth has written, ‘Congress has delegated its lawmaking powers: voting by lopsided margins for goals such as clean air and equality of the sexes, while leaving the hard choices—the real legislating—to specialized executive-branch agencies.’ These administrative agencies not only make rules but enforce and adjudicate them—carrying out the functions of all three governmental branches with nary a check.”

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Regulatory Tally

Federal Register

  • The Federal Register in June reached 31,170 pages. The number of pages at the end of each June during the Obama administration (2009-2016) averaged 37,979 pages.
  • The Federal Register included 174 proposed rules and 262 final rules during June 2019. The regulations included new car title loan regulations, restrictions on flights to Cuba, and updated international mail prices, among other rules.
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Office of Information and Regulatory Affairs (OIRA)

OIRA’s June regulatory review activity included:
  • Review of 37 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 47 significant regulatory actions each June.
  • Recommended changes to 36 proposed rules.
  • Agencies withdrew one rule from the review process.
  • As of July 1, 2019, the OIRA website listed 125 regulatory actions under review.
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