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U.S. Supreme Court to hear case about 2019 DHS immigration rule expanding definition of public charge

On February 22, the U.S. Supreme Court agreed to hear Department of Homeland Security v. New York, a case about whether the U.S. Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) and federal immigration law when it issued a 2019 rule expanding the definition of those the agency would consider to be a public charge

When DHS classifies someone as likely to become a public charge, the agency gains ground to deny that person entry into the United States or deny them legal permanent resident status. Opponents of the rule argue that it violated the Administrative Procedure Act (APA) by failing the arbitrary-or-capricious test, which instructs courts reviewing agency actions to invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

DHS defends the rule, arguing that it was within the agency’s broad authority to decide questions of immigration policy. DHS also argued that the states, city, and nonprofit organizations who challenged the rule did not have legal standing to file a lawsuit under the APA.

The U.S. Supreme Court is set to schedule oral argument in the case during its October 2021-2022 term. However, Adam Liptak, writing for _The New York Times_, argued that the case might become moot before the court makes a decision. President Joe Biden (D) has called for review of the DHS rule and may direct the agency to repeal it. If DHS reverses the rule, there may no longer be a live case for the court to resolve.

To learn more about the case or the Administrative Procedure Act see here:



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Supreme Court issues ruling in case concerning Federal Tort Claims Act

On February 25, the Supreme Court of the United States (SCOTUS) issued an opinion in the case Brownback v. King, which concerned the judgment bar of the Federal Tort Claims Act (FTCA). The case originated from the U.S. Court of Appeals for the 6th Circuit and was argued before SCOTUS on November 9, 2020.

In a unanimous ruling, SCOTUS reversed the 6th Circuit’s ruling and held that the U.S. District Court for the Western District of Michigan’s order in the case was a judgment based on the merits, triggering the judgment bar and disqualifying the plaintiff’s claims against the federal officers. Previously, the 6th Circuit had reversed the district court’s order, holding that the plaintiff’s FTCA claims did not trigger the judgment bar.

Justice Clarence Thomas delivered the majority opinion of the court and Justice Sonia Sotomayor filed a concurring opinion. Justice Thomas has authored two majority opinions so far during the current term.

To date, the court had issued opinions in 16 cases for the current term. Four cases were decided without argument.

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Voters in Alabama Senate district to decide special election on Mar. 2

Image of several stickers with the words "I voted"

A special election is being held on March 2 for District 26 of the Alabama State Senate. State Rep. Kirk Hatcher (D) and William Green (R) are facing off in the special election.

Hatcher advanced to the general election after defeating former state Rep. John Knight in the Democratic primary runoff with 74.2% of the vote on December 15, 2020. Hatcher and Knight advanced from the primary election on November 17, 2020, earning 47.9% and 20.8% of the vote, respectively. Green was unopposed in the Republican primary.

The seat became vacant after the resignation of David Burkette (D) on September 1, 2020. He was first elected to the state Senate on May 15, 2018, in a special election to fill an unexpired term. He ran in the regularly scheduled election in November 2018 and won a four-year term with 80.2% of the vote.

Heading into the special election, Republicans have a 26-7 majority with two vacancies in the state Senate. Alabama has a Republican state government trifecta. A trifecta exists when one political party simultaneously holds the governor’s office and majorities in both state legislative chambers.

As of February, 27 state legislative special elections have been scheduled for 2021 in 16 states. Between 2011 and 2020, an average of 75 special elections took place each year.

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Governor sets special election in Texas’ 6th Congressional District for May 1

Texas Gov. Greg Abbott (R) called a special election for Texas’ 6th Congressional District in the U.S. House. The special election will fill the vacancy left by Ronald Wright (R), who died from complications related to COVID-19 on February 7, 2021. The general election will be held May 1, 2021. The filing deadline is March 3, 2021.

Two other special elections have been scheduled for vacant seats in the 117th United States Congress, both U.S. House seats in Louisiana. Louisiana’s 2nd Congressional District became vacant after Rep. Cedric Richmond (D) joined the Biden administration as senior adviser to the president and director of the White House Office of Public Engagement. Louisiana’s 5th Congressional District became vacant when Rep.-elect Luke Letlow (R) died on December 29, 2020, from complications related to COVID-19 before he was sworn into office.

Fifty special elections to the United States Congress were held during the 113th through 116th Congresses. During that time, special elections were called for 16 seats vacated by Democrats and 34 vacated by Republicans.

As of February 23, Texas’ U.S. House delegation has 13 Democrats, 22 Republicans, and one vacancy. The U.S. House has 221 Democrats, 211 Republicans, and three vacancies. A majority in the chamber requires 218 seats.

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Diego Hernandez resigns from Oregon House of Representatives 

On Feb. 21, Rep. Diego Hernandez (D) resigned from the Oregon House of Representatives. He represented District 47 from 2017 to 2021. 

On May 4, 2020, the interim House Conduct Committee in the Oregon House of Representatives opened an investigation after seven individuals accused Hernandez of verbal and physical sexual harassment and creating a hostile workplace environment.

Hernandez did not participate in the investigatory hearing and issued the following statement in response: “I have no idea what the concerns raised are or by whom. I do know that there has been an organized campaign against me recently to get me out of the office I was duly elected to and I was threatened this would happen if I didn’t resign. Due process matters, I ask that people withhold judgment until the investigation is complete.”

On May 11, Hernandez filed a tort claim against the Oregon state legislature, citing damages related to the following: “abuse of process, discrimination (gender and national origin/race) under state and federal law, aiding and abetting discrimination, bullying/mobbing, whistleblowing retaliation (ORS 659A.199, ORS 659A.203, ORS659A.206), intentional infliction of emotional distress, intentional interference with a prospective economic relationship, defamation, violation of due process under state and federal law, and other potential claims.” 

After nine months, the committee voted 4-0 to recommend expulsion to the House. Hernandez filed a lawsuit to halt further movement on the measure, but United States District Judge Ann Aiken denied judicial interference. Hernandez resigned from his seat the following day on Feb. 21.

If there is a vacancy in the Oregon Legislature, the board of county commissioners representing the vacant seat must select a replacement. This can only be done when the legislature is in session or when the vacancy happens more than 61 days before the next scheduled general election. The board must consider at least three candidates and select a person from the political party that last held the vacant seat. Persons selected to fill House seats serve for the remainder of the unexpired term.

As of the morning of Feb. 24, there have been 28 state legislative vacancies in 20 states this year. Eleven of those vacancies have been filled, with 17 vacancies remaining. Hernandez’s vacancy is one of 13 Democratic vacancies to have occurred in 2021. So far, seven vacancies have been filled by Democrats, while three have been filled by Republicans.  

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Senate confirms Vilsack for agriculture secretary, Thomas-Greenfield for UN ambassador

The Senate confirmed Linda Thomas-Greenfield, a diplomat who served in the U.S. Foreign Service for three decades, to serve as the U.S. ambassador to the United Nations on Tuesday by a vote of 78-20.

The Senate also confirmed Tom Vilsack for secretary of agriculture by a vote of 92-7. He previously served in this position during the Obama administration.

Six Republican senators and one independent voted against Vilsack’s confirmation:

• Sen. Ted Cruz (R-Texas)

• Sen. Josh Hawley (R-Mo.)

• Sen. Rand Paul (R-Ky.)

• Sen. Marco Rubio (R-Fla.)

• Sen. Rick Scott (R-Fla.)

• Sen. Dan Sullivan (R-Alaska)

Sen. Bernie Sanders (I-Vt.) also voted against Vilsack’s nomination, marking the first time a Democrat or independent who caucuses with the Democrats opposed a Biden nominee.

Thomas-Greenfield and Vilsack will be sworn in on Wednesday.

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New Jersey state Senator Gerald Cardinale dies

New Jersey Sen. Gerald Cardinale (R) passed away on Feb. 20, after being hospitalized with an illness unrelated to COVID-19. The second-longest-serving New Jersey legislator, Cardinale was first elected to Senate District 39 in 1981, serving until his death. Prior to joining the state Senate, Cardinale was a member of the New Jersey General Assembly from 1980 to 1982.  

During his Senate tenure, Cardinale served as deputy majority leader (1994-2001), majority whip (1992-1993), assistant minority leader (1987-1989), and minority whip (1985-1986). He was also a district-level delegate to the 2016 Republican National Convention from New Jersey. Cardinale was one of 51 delegates from New Jersey bound by state party rules to support Donald Trump at the convention. 

If there is a vacancy in the New Jersey Legislature, the vacancy will be filled by an interim appointment by the county leadership of the political party that holds the seat. The office will be on the ballot in the next general election unless the vacancy occurs within 51 days of the election. If that is the case, the appointment would stand until the following general election. This is not the case for Cardinale’s seat, which will be up for election in November 2021.

As of Feb. 23, there have been 27 state legislative vacancies in 20 states during 2021. Ten of those vacancies have been filled. Of the 27 vacancies, 15 are Republican and 12 are Democratic. Democrats have filled seven vacancies, while Republicans have filled three.  

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Arkansas state Senator Jim Hendren leaves Republican Party, becomes an independent

On Feb. 18, Arkansas state Senator Jim Hendren announced he was leaving the Republican Party to become an independent. According to a statement issued by his organization, Common Ground AR, Hendren said, “This comes after many sleepless nights; a lot of serious consideration; and it comes with sadness and disappointment. But it’s clear-eyed. I’m making this decision because my commitment to our state and our country is greater than loyalty to any political party.”

Hendren was first elected to the Arkansas state Senate District 2 as a Republican on Nov. 6, 2012. He was an at-large delegate to the 2016 Republican National Convention from Arkansas, and was one of nine delegates from Arkansas bound by state party rules to support Marco Rubio at the convention. Hendren also served as state Senate president pro tempore from 2019 to 2021. 

As of Feb. 19, six current or former officeholders have switched parties in 2021. Brian Boquist (I-Oregon), Phelps Anderson (I-New Mexico), and Hendren switched from Republican to independent, Vernon Jones (R-Georgia) switched from Democratic to Republican, and Aaron Coleman (D-Kansas) and Brittney Barreras (D-New Mexico) switched from independent to Democratic (Coleman briefly left the Democratic Party to become an independent in January 2021 before switching back at the end of the month). Of the six, two are members of state Senates (Boquist and Hendren), three are members of state Houses (Coleman, Barreras, and Anderson), and one was a member of a state House (Vernon Jones). 

The map below shows the number of party switches by state. The most party switches took place in Mississippi, which had 15 state legislators switch parties since 1994. Thirteen Democrats switched to the Republican party and two Democrats became independents.

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Federal Register weekly update: Tops 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.

From February 15 through February 19—the fifth week of the Biden administration—the Federal Register grew by 1,006 pages for a year-to-date total of 10,438 pages. During the same period of the Trump administration in 2017, the Federal Register grew by 658 pages for a year-to-date total of 11,788 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 436 documents:

• 384 notices

• two presidential document

• 13 proposed rules

• 37 final rules

One proposed rule from the Occupational Safety and Health Administration (OSHA) concerning the Hazard Communication Standard (HCS) was deemed significant under E.O. 12866—defined by the potential to 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. The Biden administration has issued three significant proposed rules and one significant final rule as of February 19.

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.

Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017: https://ballotpedia.org/Changes_to_the_Federal_Register 

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Click here to find yearly information about additions to the Federal Register from 1936 to 2018: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2018

Former Illinois House Speaker Michael Madigan resigns

Illinois state Rep. Michael Madigan (D) announced on Feb. 18 that he would resign from the Illinois General Assembly. Madigan has been a member of the state House since 1971, representing District 22. 

“Fifty years ago, I decided to dedicate my life to public service,” Madigan said in a statement. “Simply put, I knew I wanted to make a difference in people’s lives. I believed then and still do today that it is our duty as public servants to improve the lives of the most vulnerable and help hardworking people build a good life. These ideals have been the cornerstone of my work on behalf of the people of Illinois and the driving force throughout my time in the Illinois House.”

Madigan served as House speaker from 1983 until 1995, when the Republican Party gained control of the chamber, and again from 1997 to 2021. In 2017, Madigan became the longest-serving state House speaker in U.S. history. In 2021, he was not re-elected as speaker after Illinois utility company Commonwealth Edison admitted its involvement in an effort to influence Madigan to pass favorable legislation through offering jobs, contracts, and payments to his associates. Madigan was not charged with a crime and has denied any wrongdoing or knowledge of the scheme. Chris Welch (D) was elected to succeed Madigan as speaker on Jan. 13.

Vacancies in the Illinois General Assembly are filled by appointment by the party which last held the seat. Vacancies must be filled within 30 days by the respective party organizations covering the legislative district. As a member of the Cook County Democratic Party, Madigan has a role in choosing his successor.

The Illinois House of Representatives is the lower chamber of the Illinois General Assembly. With Madigan’s resignation, the partisan breakdown of the chamber will be 72 Democrats, 45 Republicans, and one vacancy. 

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