The New York Times in its May 7 morning briefing discussed the use of the Congressional Review Act (CRA) during the Trump administration to reverse certain regulations issued by the Obama administration. Trump administration officials, according to the Times, are working to ensure that the administration’s own regulations are not similarly vulnerable to reversal under the CRA by a future administration.
What is the Congressional Review Act?
The CRA is a 1996 federal law that affords Congress a check on the rulemaking activities of federal agencies. The law creates a review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule and block the issuing agency from creating a similar rule in the future. Congress and the president have used the CRA to repeal 17 rules, 16 of which were repealed after President Donald Trump (R) took office in 2017.
On May 5, Judge Analisa Torres of the United States District Court for the Southern District of New York ordered the New York State Board of Elections to reinstate the Democratic presidential preference primary on June 23, 2020, which the board had previously canceled. The order was the result of a lawsuit filed on April 28 by Andrew Yang, a former candidate for the Democratic presidential nomination, and several candidates for New York’s delegation to the Democratic National Convention.
The New York State Board of Elections canceled the Democratic presidential preference primary on April 27, operating from a state law enacted that month that authorized the board of elections to remove candidates from ballots upon the suspension or termination of their campaigns. Senator Bernie Sanders (I) suspended his presidential campaign on April 8, making former Vice President Joe Biden (D) the presumptive Democratic nominee.
To date, 20 states and one territory have postponed state-level elections. For more information, click on the “learn more” button below.
Ballotpedia is tracking state legislative races without a known Democratic or Republican candidate in the 2020 elections. As of April 29, 764 state legislative races do not have a Democratic candidate, and 583 do not have a Republican candidate.
The most seats without a candidate from one of the major parties are concentrated in three states: New York, Oklahoma, and Georgia. New York has the highest number; of its 213 state legislative seats, 74 races (34.7%) do not have a Republican candidate. Oklahoma and Georgia are tied with the second-highest at 68 races. Of the 125 seats on the ballot this year in Oklahoma, 68 races (54.4%) do not have a Democratic candidate. Of the 236 state legislative races that are on the ballot in Georgia, 68 races (28.8%) do not have a Republican candidate.
In 2018, 6,073 state legislative races were on the ballot and 2,017 (33.2%) did not feature major party competition. In comparison, there were 2,477 such races in 2016 and 2,606 in 2014.
During the 2020 election cycle, the filing deadline to run for the state legislature has passed in 30 states. Washington has the next filing deadline on May 15.
On April 27, the Supreme Court of the United States (SCOTUS) issued rulings in three cases argued during its October Term 2019-2020. The court has issued 29 decisions this term.
Maine Community Health Options v. United States concerned the “Risk Corridors” program of Section 1342 of the Affordable Care Act (ACA). The case originated from the U.S. Court of Appeals for the Federal Circuit and was argued on December 10, 2019.
The issue: Writing for the majority, Justice Sonia Sotomayor defined the issue: “These cases are about whether petitioners—insurers who claim losses under the Risk Corridors program—have a right to payment under §1342 and a damages remedy for the unpaid amounts.”
The outcome: The court reversed the Federal Circuit’s decision in an 8-1 ruling and remanded the case. The court held that the risk corridors statute created a government obligation to pay insurers the full amount set out in Section 1342’s formula, that Congress did not impliedly repeal the obligation through its appropriations riders, and that petitioners properly relied on the Tucker Act to sue for damages in the U.S. Court of Federal Claims.
Georgia v. Public.Resource.Org Inc., a case that concerned copyright law and the Official Code of Georgia Annotated (OCGA), originated from the 11th Circuit and was argued on December 2, 2019.
The issue: “Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.”
The outcome: The court affirmed the 11th Circuit’s decision in a 5-4 ruling, holding “the OCGA annotations are ineligible for copyright protection.” Writing for the majority, Chief Justice John Roberts stated that under the government edicts doctrine, judges and legislators “may not be considered the ‘authors’ of the works they produce in the course of their official duties.” The rule applies even if a material lacks the force of law.
New York State Rifle & Pistol Association v. City of New York concerned New York City’s former ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits. It originated in the 2nd Circuit and was argued on December 2, 2019.
The issue: “Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.”
The outcome: The court vacated the 2nd Circuit’s ruling in a 6-3 per curiam decision, holding the petitioners’ claim was moot because the city changed the ban in 2019. A per curiam decision is issued collectively by the court with no indicated authorship. Justice Brett Kavanaugh filed a concurring opinion. Justice Samuel Alito filed a dissenting opinion, joined in full by Justice Neil Gorsuch and in all but Part IV-B by Justice Clarence Thomas.
On April 28, 2020, Andrew Yang, a former candidate for the Democratic presidential nomination, and several candidates for New York’s delegation to the Democratic National Convention filed suit against the New York State Board of Elections over its decision to cancel the state’s Democratic presidential preference primary. The suit was filed in the United States District Court for the Southern District of New York.
The Democratic presidential preference primary, originally scheduled to take place on April 28, 2020, was postponed to coincide with the statewide primary for congressional, state, and local offices scheduled to take place on June 23, 2020. Senator Bernie Sanders (I) suspended his presidential campaign on April 8, 2020, making former Vice President Joe Biden (D) the presumptive Democratic nominee. On April 27, 2020, the state board of elections canceled the Democratic presidential preference primary. A law enacted earlier in April authorized the board to remove candidates from ballots upon the suspension or termination of their campaigns.
To date, Ballotpedia has tracked at least 32 lawsuits dealing with the administration of elections in light of the COVID-19 outbreak. These suits span 20 states and have, to date, resulted in nine rulings and/or settlements. Ballotpedia has tracked another 52 lawsuits dealing with other state actions undertaken in response to the outbreak. These suits span 29 states and have, to date, resulted in 14 rulings and/or settlements.
On April 27, 2020, the New York State Board of Elections canceled the Democratic presidential preference primary, which had been scheduled to take place on June 23, 2020. The Republican presidential preference primary had already been canceled. The statewide primary election is scheduled to proceed as planned on June 23, 2020.
Earlier in April, the state enacted a law authorizing the board of elections to remove candidates from ballots upon the suspension or termination of their campaigns. Senator Bernie Sanders (I) suspended his presidential campaign on April 8, 2020, making former Vice President Joe Biden (D) the presumptive Democratic nominee.
To date, 20 states and one territory have either postponed or otherwise changed the dates of state-level elections.
On April 14, New York Attorney General Letitia James filed a lawsuit against the U.S. Department of Labor (DOL) arguing that it violated the terms of the Families First Coronavirus Response Act (FFCRA) with a new temporary rule. James asked the United States District Court for the Southern District of New York to block that regulation.
James argued that the new DOL temporary rule “narrows workers’ eligibility for emergency family leave and paid sick leave” under the FFCRA. In a press release announcing her lawsuit, James claimed the DOL violated the FFCRA in the following four ways:
1. Denying paid sick leave to employees if an employer claims not to have work for the employee to do
2. Giving _health care provider_ too broad a definition
3. Requiring employer consent before employees may split up when they take paid sick leave
4. Requiring certain documentation before employees are eligible for paid sick leave
James cited the Administrative Procedure Act (APA) and said the court must block the DOL rule because it is “not in accordance with law.” Section 706 of the APA establishes judicial review of agency actions and instructs courts to hold unlawful and set aside rules that violate laws. The APA is the 1946 federal law that governs things like agency rulemaking, adjudication, and judicial review of agency actions.
The DOL published the temporary rule in the _Federal Register_ on April 6 to implement changes to paid sick leave laws passed in response to COVID-19. According to the text of the rule, the DOL implemented the regulation to ensure consistency between the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
The DOL argued in the text of the temporary rule that the COVID-19 pandemic gave the agency good cause to implement the rule without a public notice and comment period. The APA allows agencies to implement rules immediately when they find that normal rulemaking procedures would be impractical, unnecessary, or contrary to the public interest. The DOL gave the temporary rule a December 31, 2020, expiration date.
To learn more about Letitia James and judicial review of administrative actions, click here.