Federal Register weekly update: More than 3,000 final rules published so far in 2020

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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 November 23 to November 27, the Federal Register grew by 1,824 pages for a year-to-date total of 76,418 pages. Over the same period in 2019 and 2018, the Federal Register reached 65,906 pages and 62,240 pages, respectively. As of November 27, the 2020 total led the 2019 total by 10,512 pages and the 2018 total by 14,178 pages. 

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

Last week’s Federal Register featured the following 516 documents:

• 406 notices

• two presidential documents

• 35 proposed rules

• 73 final rules

One proposed rule concerning critical habitat designation for threatened Caribbean corals 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 Trump administration in 2020 has issued 32 significant proposed rules, 65 significant final rules, and one significant notice as of November 27.

Not all rules issued by the Trump administration are regulatory actions. Some rules are deregulatory actions pursuant to President Trump’s (R) Executive Order 13771, which requires federal agencies to eliminate two old significant regulations for each new significant regulation issued.

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.

Additional reading:

  • Click here to find more information about weekly additions to the Federal Register in 2019, 2018, and 2017.
  • Click here to find yearly information about additions to the Federal Register from 1936 to 2018.

Analyzing margins of victory in the 206 Pivot Counties nationwide

Voters in 206 Pivot Counties across the country backed Barack Obama (D) in 2008 and 2012 and Donald Trump (R) in 2016. How did these counties vote in 2020?

We have split the Pivot Counties into two categories based on the unofficial results: 

  1. Retained Pivot Counties, which voted for Trump again in 2020, and 
  2. Carousel Pivot Counties, which voted for Joe Biden (D) this cycle.

Preliminary analysis shows the following breakdown for the 206 Pivot Counties:

  1. 174 Retained Pivot Counties
  2. 20 Carousel Pivot Counties
  3. 12 unclear/too-close-to-call

Trump has been winning the 174 Retained Pivot Counties with an average margin of victory of 14.9 percentage points. Compared to his 2016 results, Trump’s margin of victory decreased in 49 Retained Pivot Counties and increased in 125.

Biden has been winning the 20 Carousel Pivot Counties with an average margin of victory of 3.1 percentage points. Compared to Obama’s results in 2012, the last time a Democrat won in these counties, Biden’s margin of victory represents a decrease in 18 and an increase in two.

The five counties with the largest change in margin of victory for Democrats and Republicans since 2016 are in the tables below.



Legislation would block Trump executive order to change civil service classifications

On Oct. 27, Rep. Gerry Connolly (D-Va.) introduced the Saving the Civil Service Act (H.R. 8687) to block President Donald Trump’s Executive Order 13957.

The executive order, issued on Oct. 21, aims to give agency heads greater flexibility in the appointment of staff members who serve in policy-related positions and make it easier for agency management to remove poor-performing employees.

“The executive order would erode due process protections for civil service employees,” Connolly, along with Rep. Carolyn Maloney (D-N.Y.) said in a letter that was signed by other members of the Democratic caucus. “It would expedite the hiring of Trump loyalists and place them in roles best served by career civil servants.”

The text of the executive order Trump signed reads: “Separating employees who cannot or will not meet required performance standards is important, and it is particularly important with regard to employees in confidential, policy-determining, policy-making, or policy-advocating positions. High performance by such employees can meaningfully enhance agency operations, while poor performance can significantly hinder them.”

The debate over the executive order to change civil service classifications is part of a larger debate over executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. 

Executive control is primarily exercised through appointment and removal power — the authority of an executive to appoint and remove officials in the various branches of government.

A scholarly debate in this area concerns the president’s removal power: The president has the authority to remove his appointees from office, for example, but he can only fire the heads of independent federal agencies with a cause.

U.S. Representative Carolyn Maloney (D-N.Y.) co-sponsored the Saving the Civil Service Act and the bill was referred to the House Committee on Oversight and Reform.

To learn more about executive control of agencies, see here.

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President Trump names Christopher C. Miller acting secretary of defense

President Donald Trump (R) announced that Christopher C. Miller would be acting U.S. Secretary of Defense on Monday, following the termination of Mark Esper. 

Christopher C. Miller had been serving as the director of the National Counterterrorism Center since Aug. 10, 2020. Miller previously served as the Special Assistant to the President and Senior Director for Counterterrorism and Transnational Threats at the National Security Council from 2018 to 2019. 

Mark Esper had served as the secretary of defense since July 23, 2019, until his termination on Nov. 9, 2020. Trump nominated Esper to the position on July 15, 2019, and the U.S. Senate confirmed him by a vote of 90-8.

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Can presidential candidates win the election if they have already conceded?

After unofficial election results are published, a presidential candidate may give a statement conceding the election to his or her opponent. That concession, however, is not legally binding, and the candidate can still win the election.

Presidential election results remain partial and unofficial on election night. The popular vote is finalized in a process called canvassing and certification. During this process, elections officials verify that votes were counted correctly. Officials review rejected ballots and finish tallying write-in, provisional, and mail-in ballots. In 2020, state deadlines for certification range from mid-November to mid-December.

The certified election results determine which electors represent each state in the Electoral College. In 2020, the Electoral College is scheduled to vote on December 14. Congress will then convene on January 6, 2021, to count electoral votes and formally declare the winner. It is possible that a candidate who concedes on election night ends up winning when Congress formally declares the outcome of the election in January. 

Concessions are also retractable. In the 2000 presidential race, Al Gore (D) conceded to George W. Bush (R) in a phone call on November 8. However, as it became clearer that election results in Florida could trigger an automatic recount there, Gore retracted his concession in a second phone call to Bush. After the Supreme Court ruling in Bush v. Gore, Gore conceded again on December 13, 2000.

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U.S. Supreme Court grants expedited review of case on census count

On October 16, the U.S. Supreme Court accepted Trump v. New York for expedited review and scheduled oral argument for November 30, 2020. The case came on a writ of certiorari to the U.S. District Court for the Southern District of New York. It concerns congressional apportionment following the 2020 U.S. Census. The U.S. government is asking the Supreme Court to consider if the president can order the U.S. secretary of commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.

On July 21, 2020, President Donald Trump (R) issued a memorandum to U.S. Secretary of Commerce Wilbur Ross. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments sued the government in U.S. district court, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment. The government argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The U.S. District Court for the Southern District of New York ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The government appealed to the U.S. Supreme Court.

The government presented the following two questions to the court:

  1. Does the coalition of state and local governments have the legal right—or standing—to challenge the memorandum?
  2. Does the president have the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base?

The census aims to provide a complete count of the U.S. population along with demographic data. The 2020 census is being conducted by the U.S. Census Bureau, a division of the U.S. Department of Commerce. Statistical information on the population collected through the census every 10 years is used for congressional apportionment and the distribution of federal funds.

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Trump has appointed second-most federal judges through October 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 218 Article III federal judges through October 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 260 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through October 1 of their fourth year in office is 197.

The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 55, while Reagan appointed the least with 28. Trump’s 53 appointments make up 29% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 161. Carter appointed the most with 202, and Reagan appointed the fewest with 121. Trump has appointed 161 district court judges so far. Those appointments make up 24% of the 677 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

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