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The Federal Tap: A big week in Supreme Court decisions

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June 22, 2018Issue No. 118

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Week in review
On tap next week

THE WEEK IN REVIEW

Here's what happened in federal politics last week. To see what happened in state and local politics, click here.

Sunday, June 17

Minnesota DFL endorses state Rep. Ilhan Omar (D) for 5th Congressional District

  • The Minnesota Democratic-Farmer-Labor Party held a convention to allow delegates to endorse a candidate in Minnesota’s 5th Congressional District. The convention was put together on short notice after incumbent Rep. Keith Ellison (D) announced he would run for attorney general rather than seek re-election. State Rep. Ilhan Omar (D) won 68.3 percent of the votes and the DFL’s endorsement. Two of the five candidates who will appear on the August 14th Democratic primary ballot did not attend the convention.
  • Omar would be the country’s first Muslim Congresswoman if elected in the November general election. Ellison became the first Muslim Congressman in the U.S. when he was elected to represent the District in 2006.

Monday, June 18

Hillary Clinton endorses Donna Shalala (D) in Florida’s 27th District

  • Former Secretary of State Hillary Clinton endorsed Donna Shalala in the August 28 Democratic primary for Florida’s 27th Congressional District. Shalala served as the secretary of health and human services in Bill Clinton’s administration and then later was the president of the University of Miami and the head of the Clinton Foundation.
  • The 27th Congressional District is being vacated by incumbent Illeana Ros-Lehtinen (R), and, after voting for Clinton by 20 percentage points in 2016, election forecasters consider it to be a likely Democratic pick-up. Three other prominent Democrats are challenging Shalala in the primary: former Miami Beach Commissioner Kristen Rosen Gonzalez, former Knight Foundation Director Matt Haggman, and state Rep. David Richardson. Richardson has been critical of Shalala’s record while serving as president of the University of Miami and of her past remarks indicating she opposes single-payer healthcare.

SCOTUS issues rulings in Gill v. Whitford and Benisek v. Lamone, declines to weigh in on whether district maps can be struck down as partisan gerrymanders

  • The Supreme Court of the United States issued rulings in Gill v. Whitford and Benisek v. Lamone, two partisan gerrymandering challenges. The plaintiffs in Gill alleged that Wisconsin's state legislative district plan had been gerrymandered to benefit Republicans. The plaintiffs in Benisek alleged that Maryland's Sixth Congressional District was drawn to benefit Democrats. In neither of these rulings did the court directly address whether a district map can be struck down as unconstitutional for giving one political party advantage over another. Instead, these rulings were made on standing grounds (as in Gill) or procedural grounds (as in Benisek).
  • As a result of these rulings, no immediate changes to any district maps are expected. Both cases will return to federal district court for further proceedings. The only remaining redistricting case before the court this term is Abbott v. Perez, a case involving allegations of racial gerrymandering in Texas' congressional and state legislative district maps. A decision is expected before month's end.

Paul Ryan endorses former staffer as his successor

  • Outgoing House Speaker Paul Ryan (R) endorsed former staffer Bryan Steil (R) as his successor Monday. Steil is among the six Republicans who have announced their intentions to seek the party's nomination to succeed Ryan in an August 14 primary.
  • In his endorsement, Ryan cited the importance of victory in the general election in November, noting involvement from the Barack Obama-affiliated group Organizing for America in the district. The winner of the Republican primary will face either teacher Cathy Myers (D) or ironworker Randy Bryce (D) in the November general election, which is rated Lean Republican by two ratings outlets and Toss-up by a third. The partisan voter index for the southeastern Wisconsin district is R+5, meaning that in the past two presidential elections the district's results were five percentage points more Republican than the national average.

Tuesday, June 19

U.S. withdraws from United Nations Human Rights Council

  • U.S. officials announced the country's withdrawal from the United Nations Human Rights Council. U.S. Ambassador to the U.N. Nikki Haley (R) and Secretary of State Mike Pompeo (R) made the announcement. The Obama administration joined the council in 2009 after the George W. Bush administration declined to do so.
  • Haley cited the group's treatment of Israel as a reason for the withdrawal: "Earlier this year, as it has in previous years, the Human Rights Council passed five resolutions against Israel — more than the number passed against North Korea, Iran, and Syria combined. This disproportionate focus and unending hostility toward Israel is clear proof that the council is motivated by political bias, not by human rights. If the Human Rights Council is going to attack countries that uphold human rights and shield countries that abuse human rights, then America should not provide it with credibility."
    • Israeli Prime Minister Benjamin Netanyahu applauded the decision: "Israel thanks President Donald J. Trump, Secretary Pompeo and Ambassador Nikki Haley for their courageous decision against the hypocrisy and the lies of the so-called UN Human Rights Council. For years, the UNHRC has proven to be a biased, hostile, anti-Israel organization that has betrayed its mission of protecting human rights." Elliot Abrams, a senior fellow for Middle Eastern studies at the Council on Foreign Relations, said, "There is always an argument for staying, which is that the United States will be in a better position to help defend Israel. But this council is hopelessly compromised, so leaving is the right choice."
    • Zeid Ra’ad al-Hussein, the UN commissioner for human rights, said the following in response to the withdrawal: "Disappointing, if not really surprising, news. Given the state of human rights in today's world, the U.S. should be stepping up, not stepping back." John Sifton, an advocacy director at Human Rights Watch, also criticized the move: "All this administration seems to care about when it comes to the council is defending Israel. If the Trump administration's complaint is that the council is biased and flawed, they've just made it more so."
    • The United Nations Human Rights Council was formed in 2006. According to its website, the council is "an inter-governmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them."

Wednesday, June 20

Club for Growth PAC endorses Lee Bright

  • The Club for Growth PAC announced Wednesday that it was endorsing former state Sen. Lee Bright (R) in the June 26 runoff for the seat held by outgoing Rep. Trey Gowdy (R).
  • Bright and state Sen. William Timmons (R) were the top two finishers in the thirteen-candidate race for the Republican nomination for Gowdy's seat, but neither received the majority necessary to avoid a runoff.
  • The endorsement follows that of Sen. Ted Cruz (R-Tx.), who announced his support for Bright Tuesday. Timmons, who was the top fundraiser ahead of the June 12 primary, has been endorsed by Sen. Marco Rubio (R-Fla.)

Trump signs executive order ending family separation policy

  • President Donald Trump (R) signed an executive order ending the administration’s policy of separating the children of detained immigrants who entered the country illegally from their parents. The order directs the U.S. Department of Homeland Security to keep detained families together. The order also calls on the U.S. Department of Defense to assist in providing housing for families when detention centers are at capacity, according to Politico.
  • “I didn’t like the sight or the feeling of families being separated,” said Trump. “I think anybody with a heart would feel strongly about it. We don’t like to see families separated.”
  • Trump stated that he would continue to urge Congress to address the family separation policy through legislative action.

Thursday, June 21

Independent filing deadline in Texas

  • The Texas statewide filing period for independent candidates ended. To run as an independent, a candidate was first required to file a declaration of intent with the county judge (county or precinct offices) or the Texas Secretary of State (district and state offices) during the same filing period as major and minor party candidates (November 11 to December 11, 2017). The candidate was then required to file an application for a place on the general election ballot along with a nominating petition including the signatures of voters who have not participated in the primary or the primary runoff of a party that has nominated, at either election, a candidate for the office the petitioning candidate seeks.

U.S. House passes farm bill

  • The U.S. House of Representatives voted 213 to 211 to approve a five-year farm bill (HR 2, the Agriculture and Nutrition Act of 2018) after failing to do so in May 2018. No Democrats voted in favor of the bill, and 20 Republicans voted against it. The legislation reauthorizes U.S. Department of Agriculture programs dealing with commodity support, conservation, farm credit, and crop insurance, among other things. The bill also includes provisions expanding work requirements and eligibility rules for the Supplemental Nutrition Assistance Program, previously known as the food stamp program. These provisions would require non-disabled adults who are not responsible for children aged six or younger to work at least 20 hours per week in order to retain eligibility. As defined by the bill, work includes employment and training programs.
    • Rep. Mike Conaway (R-Tex.), chair of the House Agriculture Committee, said, "Today's vote was about keeping faith with the men and women of rural American and about the enduring promise of the dignity of a day's work. It was about providing certainty to farmers and ranchers who have been struggling under the weight of a five-year recession and about providing our neighbors in need with more than just a handout, but a hand up." Rep. Collin Peterson (D-Minn.), ranking member of the House Agriculture Committee said, "The only upside to its passage is that we’re one step closer to conference, where it’s my hope that cooler heads can and will prevail. The Senate’s version isn’t perfect, but it avoids the hardline partisan approach that House Republicans have taken here today, and if it passes, I look forward to working with conferees to produce a conference report both parties can support, which is the only way to get a farm bill enacted."
    • Senators Pat Roberts (R-Kan.), Senate Agriculture Committee chairman, and Debbie Stabenow (D-Mich.), ranking member of the committee, advanced their version of the farm bill out of committee by a vote of 20 to 1 on June 13, 2018.

House rejects Goodlatte's immigration bill, delays vote on compromise bill

  • The House voted 231-193 to reject an immigration bill proposed by Rep. Bob Goodlatte (R-Va.). All Democratic members of the chamber were joined by 41 Republicans in voting against the bill. The bill would have provided funding for a border wall, modified visa programs to limit legal immigration, mandated the use of a worker verification program, allowed the administration to cut funding to sanctuary cities, allow recipients of DACA to apply for legal status, and prevent families from being separated at the border. Following the bill's defeat, Republican leaders decided to postpone a vote on a compromise bill between conservative and moderate wings of the party.
  • Speaker Paul Ryan (R-Wis.) told reporters that the potential of the defeat of both bills in the chamber would not be the end of the issue. "I think we’re advancing the cause even if something doesn’t pass. I think these are the seeds that are going to be planted for an ultimate solution," he said.

SCOTUS rules that SEC ALJs are subject to Appointments Clause in Lucia v. SEC

  • The United States Supreme Court held 7-2 in Lucia v. SEC that the administrative law judges (ALJs) of the Securities and Exchange Commission (SEC) are “Officers of the United States" subject to the Appointments Clause. The SEC had argued that its ALJs were not Officers of the United States, but rather agency employees.
  • The ruling relied on precedent established in Freytag v. Commissioner (1991) to note that ALJs exercise significant authority because their decisions may become final decisions if the SEC declines to review the ruling. They determined that the SEC ALJs are “Officers of the United States” subject to the Appointments Clause.
  • After an adverse ruling from an SEC ALJ, Lucia argued that the proceeding had been unconstitutional because the ALJ had not been properly appointed. Lucia argued that the ALJ was an Officer of the United States within the meaning of the Appointments Clause; therefore, Lucia claimed, the ALJ's appointment had to have been directly ratified by the SEC.
  • “[T]he ‘appropriate' remedy for an adjudication tainted with an appointments violation is a new 'hearing before a properly appointed' official,” stated Supreme Court Justice Elena Kagan in the opinion. “And today we hold nothing more. … To cure the constitutional error, another ALJ (or the Commission itself) must hold the new hearing.”

SCOTUS declines to apply Chevron deference in Pereira v. Sessions

  • The United States Supreme Court declined to apply Chevron deference in its ruling in Pereira v. Sessions. The court held 8-1 to reverse and remand the lower court’s decision. In his concurrence, Justice Kennedy stated that "it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision."
  • Chevron deference is a doctrine of judicial deference that compels federal courts, in reviewing a federal government agency's action, to defer to the agency’s construction of a statute that Congress directed the agency to administer.
  • Pereira v. Sessions questioned whether a notice to appear—a notice served to an individual illegally residing in the United States by the Department of Homeland Security (DHS) to appear for an immigration hearing—must specify a time and place for a hearing in order to effectively trigger the stop-time rule. The stop-time rule stops an individual’s continuous residency clock, which may allow the individual to meet certain continuous residency requirements in order to remain in the country,
  • The United States Court of Appeals for the 1st Circuit applied Chevron deference in its decision that the stop-time rule was ambiguous and the Board of Immigration Appeals’ (BIA) interpretation of the statute was reasonable—thus triggering the stop-time rule despite the lack of specification regarding a time or place for the hearing. The Supreme Court disagreed and declined to apply Chevron deference, arguing that the statute in question was not ambiguous and, therefore, not entitled to deference. "The Court need not resort to Chevron deference, for the unambiguous statutory text alone is enough to resolve this case. … to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, 'specif[ies]' the 'time and place' of the removal hearing.”
  • Today’s ruling demonstrates the current period of uncertainty surrounding the Chevron deference doctrine. Once considered canonical judicial doctrine—cited 81,000 times as of 2018 in legal arguments since its first articulation in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—Chevron deference has been seen by seen by some scholars as "entering a period of uncertainty, after long seeming to enjoy consensus support on the Court.”

Congress is in session

The Senate will be in session Monday through Friday. The House will be in session Monday through Thursday.

SCOTUS is in session

The Supreme Court has finished its argument scheduled for the term. To learn more about this term, read our review.

WHAT'S ON TAP NEXT WEEK

Here's what is happening in federal politics this week. To see what happened in state and local politics, click here.

Monday, June 25

Georgia independent filing period begins

  • The filing period will open for independent candidates wishing to run in the general election in Georgia. Candidates must file by July 10. The general election is on November 6, 2018. Independent candidates may file for U.S. representative, governor and eight other state executive seats, state senate, and state house.

Independent and new party candidate filing deadline in Illinois

  • The Illinois statewide filing period for independent and new party candidates began on June 18 and will end on June 25. New political party candidates must file as a slate with other candidates at the state or district level and receive 5 percent of the vote in the general election to become an established party in the state or district.
    • To appear on the general election ballot, independent and new party candidates must file a certain number of nominating papers based on the number of voters who voted in the previous election. Candidates for statewide offices such as governor must file 1 percent of the number of voters who voted in the most recent general election or 25,000, whichever is less. Candidates for U.S. Congress, state general assembly, and county seats must file 5 percent of the total number of district voters who voted in the last general election.

Tuesday, June 26

Colorado primary preview

  • Colorado’s statewide primary is on June 26. Ballotpedia is covering elections for seven U.S. House seats, governor and 10 additional state executive seats, 17 state senate seats, and all 65 state house seats. Ballotpedia is also covering municipal elections in Adams County, Arapahoe County, and El Paso County. The general election will be held on November 6, 2018.

Maryland primary preview

  • Maryland’s statewide primary is on June 26. Ballotpedia is covering elections for U.S. Senate, eight U.S. House seats, governor and three additional state executive seats, 47 state senate seats, and all 141 state house seats. Ballotpedia is also covering municipal elections in Baltimore and school board elections in five counties. The general election will be held on November 6, 2018.
    • In the sixth congressional district, eight candidates are seeking the party’s nomination to succeed outgoing Rep. John Delaney (D). Total Wine cofounder David Trone (D) has self-funded $10.3 million, setting a record among U.S. House candidates surpassed only by Trone’s own run in the neighboring eighth district in 2016. Among Trone’s opponents are two sitting members of the state Legislature.

Mississippi primary runoff preview

  • Mississippi’s primary runoff will feature two congressional races. A Democratic primary runoff will be held in the U.S. Senate race between David Baria and Howard Sherman, who advanced from the six-person primary race on June 5. The winner will run against Republican incumbent Roger Wicker, Libertarian Danny Bedwell, and Reform Party candidate Shawn O’Hara in the general election.
    • There will be a Republican primary runoff on the ballot for Mississippi’s third congressional district. Michael Guest and Whit Hughes will face off in the runoff, each hoping to be the Republican nominee in the general election against Democrat Michael Evans and Reform Party candidate Matthew Holland. The contest for District 3 is an open race; incumbent Gregg Harper (R) announced in January 2018 that he would not seek re-election.

New York primary preview

  • New York’s congressional primary are being held for the U.S. Senate and 27 U.S. House seats.
    • Five Democrats are competing to take on incumbent Lee Zeldin (R) in New York’s 1st Congressional District. The candidates are former Suffolk County legislator Kate Browning, who is supported by U.S. Sen. Kirsten Gillibrand (D-N.Y.); businessman Perry Gershon, who is self-funding his campaign; former Suffolk County legislator Vivian Viloria-Fisher and former New York City Council staffer David Pechesky, who are both running furthest left in the field; and Elaine DiMasi, a self-described pro-science candidate. Some election forecasters think the general election could be competitive.
    • Incumbent Dan Donovan faces a challenge from former incumbent Michael Grimm in the Republican primary for New York’s 11th District. Donovan was elected in a 2015 special election to replace Grimm after Grimm pleaded guilty to felony tax evasion, which led to him serving time in prison. President Trump, the U.S. Chamber of Commerce, and the Republican Main Street Partnership all back Donovan. Trump has argued that Grimm is more likely to lose the general election to a Democrat. Grimm is supported by former White House Communications Director Anthony Scaramucci. He led Donovan in polls conducted in April and May.
    • Ballotpedia is also covering elections for governor and three other state executive seats, all 63 state senate seats, all 150 state house seats, and municipal elections in Buffalo. The filing deadline for candidates running in these elections is July 12, 2018. The primary will be held on September 13, 2018. The general election for all New York elections will be held on November 6, 2018.

Oklahoma primary preview

  • Oklahoma’s statewide primary is on June 26. Ballotpedia is covering elections for five U.S. House seats, governor and eight other state executive seats, 24 state senate seats, and all 101 state house seats. Ballotpedia is also covering municipal elections in the following municipalities: Canadian County, Cleveland County, Oklahoma City, Oklahoma County, Osage County, Tulsa city, and Tulsa County. The general election will be held on November 6, 2018.
    • The conservative House Freedom Caucus and the moderate Republican Main Street Partnership are facing off in Oklahoma’s 1st Congressional District, which was vacated by U.S. Rep. Jim Bridenstine (R) after he was appointed to be the director of NASA. The Freedom Caucus backs former military intelligence officer Andy Coleman, while the Main Street Partnership backs businessman Kevin Hern. Two other candidates who could contend are state Sen. Nathan Dahm, who is backed by the party’s libertarian wing, and Tim Harris, the longtime Tulsa County district attorney. The primary will go to a August 28 runoff if no candidate receives more than 50 percent of the vote.

South Carolina primary runoff preview

Utah primary preview

  • Utah’s statewide primary is on June 26. Ballotpedia is covering elections for U.S. Senate, U.S. House, the state board of education, the state senate, and state house. Ballotpedia is also covering school board elections in Salt Lake County, Utah County, and Davis County. The general election will be held on November 6, 2018.
    • Former Massachusetts governor Mitt Romney is facing state Rep. Mike Kennedy (R) in the Republican primary for the U.S. Senate seat from Utah. Sen. Orrin Hatch (R), who announced in January 2018 that he would not run for re-election after 42 years in office, said in March 2017 that Romney would be perfect to replace him. Romney also received President Donald Trump’s endorsement in the primary in February 2018. Romney opposed Trump in the 2016 presidential election, and Politico had reported in December 2017 that Trump wanted Hatch to run for re-election. Kennedy was first elected to the Utah House in 2012. He has also worked as a doctor and lawyer. Kennedy has been backed by retired Four Star General Robert C. Oaks and state Rep. Cory Maloy (R).

Wednesday, June 27

Rhode Island filing deadline

  • The filing deadline will pass for major party candidates to run in Rhode Island. Elections on the ballot in 2018 include one U.S. Senate seat, two U.S. House seats, the governor’s office and four other state executive positions, all 38 state senate seats, and all 75 state house seats. U.S. Sen. Sheldon Whitehouse (D) and U.S. Reps. David Cicilline (D) and Jim Langevin (D) are all running for re-election. The filing deadline for independent candidates is July 16. The primary is on September 12, and the general election is on November 6, 2018.

Where was the president last week?

 

  • On Tuesday, President Donald Trump addressed the National Federation of Independent Businesses' 75th Anniversary Celebration. He also welcomed King Felipe VI and Queen Letizia of Spain to the White House for a meeting.
  • On Wednesday, Trump held a rally in Duluth, Minnesota.
  • On Thursday, Trump hosted a meeting with his Cabinet in D.C.
  • On Friday, Trump confirmed newly appointed ambassadors at a White House ceremony. He also gave a speech on immigration issues in the afternoon. In the event, Trump and the first lady attended the Marine Corps Evening Parade at the Marine Barracks in D.C.

Federal Judiciary

 

  • 146 federal judicial vacancies
  • 85 pending nominations
  • 31 future federal judicial vacancies


About

The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

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