Your feedback ensures we stay focused on the facts that matter to you most—take our survey.

The Federal Tap: DC Circuit court grants lawsuit by 15 Democratic state AGs

From Ballotpedia
Jump to: navigation, search

August 4, 2017Issue No. 75

The-Federal Tap Banner-White-750x191px.png

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, July 30

Central Utah newspaper endorses Curtis in Utah’s 3rd Congressional District special election

  • Joining Utah Gov. Gary Herbert (R), Central Utah newspaper Daily Herald endorsed Provo City Mayor John Curtis (R) over former state legislator Chris Herrod and business executive Tanner Ainge in Utah's 3rd Congressional District special election. “Utah needs more politicians that are concerned with Utah, not Washington, its inner circles or TV fame. While the other two Republican candidates also emulate some of the principles Utah County holds dear, we are fortunately faced with candidates in an election that fall in the line of good, better, best. In our minds, Curtis stands as the best option,” the editors wrote. Curtis also topped a poll released last week with 37 percent support, leading his closest competitor, Ainge, by 20 points. He will face Herrod and Ainge in the Republican primary on August 15.

Monday, July 31

Term expires for Chip Erdmann, chief judge of federal appeals court for armed forces

  • Charles “Chip” Erdmann’s term of active service as a judge on the U.S. Court of Appeals for the Armed Forces expired on Monday. Erdmann, who was also the court’s chief judge, had served on the court since 2002. He joined the court after a nomination from President George W. Bush and subsequent Senate confirmation. With the expiration of Erdmann’s 15-year term, the five-judge court has its only vacancy. Three judges, including Erdmann, were Republican nominees. Pursuant to Article 142(e) of the Uniform Code of Military Justice, a senior judge on the appeals court may serve on the court as a fifth judge or, under Article 142 (f), the chief justice of the United States may designate an Article III judge to serve as a fifth judge on the court. When the last vacancy on the court occurred in 2015, Chief Justice John Roberts designated Judges Albert Diaz of the Fourth Circuit Court of Appeals and Royce Lamberth of the U.S. District Court for the District of Columbia to sit by designation as the fifth judge on the court. The court announced that Erdmann would elect to serve as a senior judge on the court. Judge Scott Stucky succeeds Erdmann as the court’s chief judge. The court exercises worldwide appellate jurisdiction over members of the U.S. armed forces on active duty and other persons subject to the Uniform Code of Military Justice.
    • For more on federal judicial vacancies during the president’s first six months in office, read our special report.

New Pence chief of staff begins position

  • Nick Ayers, a longtime ally to former Georgia Gov. (and current Secretary of Agriculture) Sonny Perdue, began as Vice President Pence’s chief of staff. In 2006, at 24 years old, he became executive director of the Republican Governors Association, and at 29 he managed Tim Pawlenty's presidential campaign. Ayers worked on Pence's Indiana gubernatorial race last year prior to Pence accepting the nomination for vice president. He replaces Josh Pitcock, who transitioned to the private sector after working for Pence for 12 years.

Kelly begins as Trump chief of staff, fires Scaramucci

  • John Kelly, who had been serving as secretary of homeland security, began his new position as White House chief of staff, taking over for Reince Priebus. Kelly dismissed communications director Anthony Scaramucci, who had reported directly to the president. Scaramucci had been in his position for 10 days and had made headlines for an on-the-record interview with The New Yorker that The New York Times described as "a crude verbal tirade against other members of the president’s staff," including Priebus and chief strategist Steve Bannon. Of the dismissal, press secretary Sarah Huckabee Sanders said, "The president certainly felt that Anthony’s comments were inappropriate for a person in that position. ... He didn’t want to burden General Kelly, also, with that line of succession."

Tuesday, August 1

Brooks aligns with Trump on ending filibuster and criticizes Strange for supporting the rule after Gorsuch was confirmed to the Supreme Court

  • President Donald Trump called for the elimination of the filibuster over the past weekend as Republicans in Congress continue to consider options to repeal the Affordable Care Act. It's a position that Rep. Mo Brooks (R-Ala.), a candidate in the U.S. Senate special election for Alabama, has echoed in his campaign. He said in a statement before the U.S. House last month, "The filibuster rule destroys the basic democratic principal of majority rule and obstructs passage of legislation unless a 60 percent super-majority of senators agree. While today’s 52 senator Republican majority can abolish the filibuster rule any time it wants, so long as the filibuster rule is in place, Republicans can pass nothing...nothing...without the consent of Chuck Schumer and the Democrats. ... America’s future is at stake. Now is not the time to play procedural games. I agree with President Trump. Senate: end the filibuster!" Brooks also pointed to the filibuster as a point of difference between him and incumbent Sen. Luther Strange (R-Ala.), who co-signed a bipartisan letter with 60 other senators defending the filibuster in April, following Neil Gorsuch's confirmation to the U.S. Supreme Court—a vote made possible by using the nuclear option to bypass a Democratic filibuster. Brooks and Strange will compete in the Republican primary in two weeks on August 15.

Senate confirms Christopher Wray as FBI director

Senate confirms Kevin Newsom as Eleventh Circuit judge

  • On Tuesday, the Senate voted 66-31 to confirm Kevin Newsom as a judge on the United States Court of Appeals for the 11th Circuit. Three senators did not cast a confirmation vote on the nomination: Richard Burr (R-N.C.), Al Franken (D-Minn.), and John McCain (R-Ariz.) Newsom’s nomination was put forward by the Senate Judiciary Committee on July 13, 2017, with 18 of 20 committee members voting to report the nomination out of committee to the full Senate for confirmation. The committee has 11 Republican and nine Democratic members. Only Senators Christopher Coons (D-Del.) and Al Franken (D-Minn.) voted against reporting Newsom’s nomination out of committee. Franken did not ask any questions of Newsom during his confirmation hearing. Newsom was the third federal appeals court judge confirmed by the Senate and was the fifth federal judge confirmed this year. Newsom was nominated by President Donald Trump to fill a vacancy on the court created when Judge Joel Dubina elected to take senior status in October of 2013. Judge Dubina was nominated to the court by President George H.W. Bush. Of the judges serving on active status on the 11th Circuit, eight were nominated by Democratic presidents.
    • For more on federal judicial vacancies during the president’s first six months in office, read our special report.

Marra elects to take senior status, third judge on federal court in Florida to do so in 2017

Payne elects to take senior status, creates new judicial emergency in Oklahoma

  • Judge James E. Payne, whose principal judicial assignment is to the United States District Court for the Eastern District of Oklahoma, elected to take senior status beginning on August 1. Payne also sits as a senior district judge on the Western District and Northern District of Oklahoma. Payne was nominated to federal judicial service in 2001 by President George W. Bush after serving as a federal magistrate judge on the Eastern District of Oklahoma from 1988 to 2001. Payne’s decision to take senior status creates a vacancy on all three courts on which he serves. Payne’s decision creates a new judicial emergency-as defined by the Administrative Office of U.S. Courts-in the Eastern District of Oklahoma, as the number of active judges on the court reduces from two to one. Judge Payne’s decision creates the only vacancy on the Northern District of Oklahoma among four active judicial positions and creates a fourth vacancy out of seven active judicial positions in the Western District of Oklahoma. Each of the federal courts in Oklahoma has a majority of judges appointed by Republican presidents.

D.C. Circuit allows Democratic state attorneys general to intervene in lawsuits over insurance subsidy payments

  • A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit granted a motion filed by 15 Democratic state attorneys general and the District of Columbia to intervene in a lawsuit between the Trump administration and the U.S. House of Representatives in order to defend subsidy payments to insurance companies. The judicial order announced that the states had standing to intervene because the states demonstrated that they would suffer a concrete injury if the payments were denied. Each of the judges on the panel was appointed by President Barack Obama. The panel judges were Patricia Ann Millett, Cornelia Pillard, and Robert Wilkins.
    • In granting the motion, the court held that the states had "shown a substantial risk that an injunction requiring termination of the payments at issue here—which is the relief sought, and obtained in the district court, by the House of Representatives—would lead directly and imminently to an increase in insurance prices, which in turn will increase the number of uninsured individuals for whom the States will have to provide health care. In addition, state-funded hospitals will suffer financially when they are unable to recoup costs from uninsured, indigent patients for whom federal law requires them to provide medical care. ... That causal linkage is plausible, directly foreseeable, imminent upon the grant of the House’s requested relief, and adequately supported by the affidavits and supporting documents the States have filed."

Former Cruz national security advisor joins Trump Middle East envoy

  • Victoria Coates, a former security advisor for Ted Cruz’s presidential campaign as well as Rick Perry’s 2012 run, joined the Middle East peace envoy in President Trump’s administration. Beginning in January, Coates was the senior director for strategic assessments on the National Security Council in the Trump administration. Coates has Ph.D. in art history and first became involved in politics when she blogged anonymously for RedState and gained the attention of then-Secretary of Defense Donald Rumsfeld. She worked at the Rumsfeld Foundation from 2007 to 2011 and acted as editor and content analyst for his memoir, Known and Unknown.

Federal appeals court requires EPA to enforce Obama-era methane rule at oil and gas sites

  • The U.S. Court of Appeals for the District of Columbia Circuit ordered the Environmental Protection Agency (EPA) to enforce an Obama-era rule to limit methane emissions at oil and natural gas sites. In June 2017, the EPA announced it would delay the rule’s implementation for two years; the agency announced in April 2017 that it will work to repeal the rule. However, two judges on a three-judge panel ruled on July 3 that the agency could not delay the rule’s implementation and rejected the EPA’s reasoning for the delay. The court's ruling to require implementation was affirmed by nine of the court’s 11 judges. The EPA said it would not appeal the ruling. The methane rule was issued by the Obama administration in May 2016 and would require oil and gas operators to follow federal standards for equipment and employee certification and to limit the flaring and venting of methane at drilling sites.
    • Supporters argue that the rule is necessary to reduce emissions and mitigate the purported effects of human-caused global warming. Opponents argue that the rule is duplicative of existing state regulations and would provide little to no environmental benefit in exchange for the costs to energy producers.
    • See also: Federal policy on methane regulation, 2017

Wednesday, August 2

Seven Trump delegates endorse Mo Brooks for Alabama Senate race

Trump signs bill sanctioning Iran, North Korea, and Russia, but calls it seriously flawed

  • President Donald Trump signed HR 3364—Countering America's Adversaries Through Sanctions Act. The bill placed sanctions on Iran, North Korea, and Russia. Trump criticized some of the provisions of the bill, specifically those related to Russia, but praised it for sending a message to Iran and North Korea. He said that he signed the bill “for the sake of national unity,” but called it “seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate.” The law requires the president to get congressional approval before easing or lifting sanctions on Russia. Additionally, it set into law sanctions imposed by the Obama administration for Russia’s interference in Ukraine, Syria, and the 2016 presidential election. Trump said in a statement, “By limiting the Executive’s flexibility, this bill makes it harder for the United States to strike good deals for the American people, and will drive China, Russia, and North Korea much closer together. The Framers of our Constitution put foreign affairs in the hands of the President. This bill will prove the wisdom of that choice.”

Federal judge orders Utah to place United Utah Party's candidate on ballot for U.S. House special election

  • Federal judge David Nuffer ordered state election officials in Utah to print Jim Bennett's name on the ballot for Utah's 3rd Congressional District special election. On May 26 (the candidate filing deadline), state election officials denied Bennett, a candidate of the newly formed United Utah Party (UUP), a place on the ballot, citing the fact that his party was not recognized by the state as a ballot-qualified party at the time of the candidate filing deadline (UUP officials had filed party formation paperwork on May 25). On June 22, Bennett and UUP filed suit in federal court, alleging that election officials, in claiming that they did not have sufficient time in advance of the candidate filing deadline to verify UUP's party formation paperwork, violated their constitutional rights. Nuffer found in favor of Bennett and UUP, writing in his ruling that "the state's interests do not require or justify effectively barring UUP and its candidate, Mr. Bennett, from participating in the special election as a new political party." Lieutenant Governor Spencer Cox, Utah's chief elections official, announced that his office would not appeal Nuffer's ruling.

Zuckerberg hires former top Obama pollster, Clinton strategist

  • Joel Benenson, the top pollster for both of Barack Obama’s presidential campaigns and strategist for Hillary Clinton’s 2016 run, was hired to do polling for the Chan Zuckerberg Initiative—the philanthropy run by Facebook founder Mark Zuckerberg and his wife, physician Priscilla Chan. A spokesperson for the Chan Zuckerberg Initiative said the hiring was for polling on issues vital to the charity and not for politics, saying, "As a philanthropic organization focused on a number of substantive issues including science, education, housing, and criminal justice reform, any research efforts we undertake is to support that work."

EPA Administrator Scott Pruitt approves action to end proposed delay of 2015 ozone standard

  • The Environmental Protection Agency (EPA) announced it would continue implementation of the 2015 ozone standard set by the Obama administration. EPA Administrator Scott Pruitt (R) said that the agency would continue with designating areas as compliant or noncompliant by the October 1, 2017, deadline.Under the delay announced in June 2017, the EPA extended its deadline for designations to October 1, 2018. EPA officials added that the agency would consider state-specific or regional delays for the standard. In a notice published in the Federal Register, EPA officials wrote, "The EPA has continued to discuss and work with states concerning designations, and now understands that the information gaps that formed the basis of the extension may not be as expansive as we previously believed." On August 1, 15 states sued the EPA for its earlier decision to delay implementation of the 2015 ozone standard.

Two GOP senators introduce immigration bill amending employment-based visas; President Trump endorses

  • Senators Tom Cotton (R-Ark.) and David Perdue (R-Ga.) introduced a bill to modify the country’s immigration system, the Reforming American Immigration for a Strong Economy Act. The bill would move away from the system of awarding visas based on various categories of employment and instead implement a points-based system. Under the points-based system, potential immigrants would earn points “based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative.” An individual would need to earn 30 points before becoming eligible for a visa; they would then join a pool of other eligible individuals, from which U.S. Citizenship and Immigration Services would twice per year select individuals with the most points to fill out applications. Up to 140,000 immigrants would be granted employment-based visas annually.
  • The bill would also eliminate the Diversity Lottery—which provides 50,000 visas to individuals from countries with historically low rates of immigration to the United States—as well as family-based immigration for siblings and adult children. Permanent visas given to refugees would be capped at 50,000 annually.
  • President Trump endorsed the bill, stating “This legislation will not only restore our competitive edge in the 21st century, but it will restore the sacred bonds of trust between America and its citizens.”
  • Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the bill, saying that the bill “goes after hardworking people who want to play by the rules” and that “to cut immigration by half a million people, legal immigration, doesn't make much sense.”

Thursday, August 3

UT-3 Republican candidate Tanner Ainge gets six-figure boost from new super PAC

Special counsel Mueller empanels grand jury in Washington, D.C. in Russia probe

  • The Wall Street Journal reported that Robert Mueller—who was appointed special counsel in May to investigate potential collusion between members of the Trump campaign and Russia during the 2016 presidential election and whether Trump had obstructed justice by firing former FBI Director James Comey—had empaneled a grand jury in Washington, D.C., in addition to a grand jury previously empaneled in Virginia. A grand jury reviews subpoenaed documents, witness testimony, and other evidence in order to determine whether there is probable cause that a crime occurred. This can lead to an indictment. White House special counsel Ty Cobb responded to the report, "This is news to me, but it’s welcome news to the extent it suggests that it may accelerate the resolution of Mr. Mueller’s work. The White House has every interest in bringing this to a prompt and fair conclusion. As we’ve said in the past, we’re committed to cooperating fully with Mr. Mueller."

Senate confirms three nominees to veterans court

Trump nominates two to serve on U.S. courts of appeals

Trump nominates six to serve on U.S. district courts

President nominates two to serve on U.S. Tax Court

  • On August 3, 2017, President Donald Trump nominated Elizabeth Ann Copeland and Patrick J. Urda to serve as judges on the United States Tax Court. If confirmed, the nominees would be commissioned to serve 15-year terms on the court. Currently, the court has 19 active judicial positions with three vacancies. Of the 16 judges on active service, 11 were nominated by Democratic presidents. Copeland was nominated to the same position in 2015 by President Barack Obama. The nominees are expected to have confirmation hearings before the Senate Finance Committee after the Senate returns from its August recess.

Friday, August 4

New poll released in tight Alabama Senate primary

  • With election day drawing closer, Judge Roy Moore edged out incumbent Sen. Luther Strange in the latest Republican primary poll released in the U.S. Senate race in Alabama. Moore garnered 31% support over Strange's 29%, and Rep. Mo Brooks' 18%. The poll was conducted by RRH Elections and has a 5% margin of error.

Congress is not in session

The House and Senate are on August recess. Both chambers will return on September 5. Both chambers are technically still in session because some members are conducting pro forma sessions every three days. No legislative business will be worked on during these sessions. The pro forma sessions are in place to bar recess appointments by Trump.

SCOTUS is NOT in session

The U.S. Supreme Court has concluded its 2016 October term. The court will continue to act on emergency petitions throughout the summer and consider petitions for case review in advance of the court’s 2017 October term, which begins on Monday, October 2, 2017.

For more on the court’s recently completed term, read our review.

Fact Checks

Did Rep. Mo Brooks refuse to endorse Donald Trump?

  • An ad by the Senate Leadership Fund criticized Rep. Mo Brooks, a Republican candidate for Alabama's U.S. Senate seat, for not endorsing Donald Trump in the 2016 election. In response, the Brooks' campaign staff issued a press release claiming that "Brooks endorsed President Trump once he was the GOP nominee." When asked by Ballotpedia to back its claim, the Brooks campaign did not provide proof that he endorsed Donald Trump. Officials of the Senate Leadership Fund, in response to Ballotpedia's request for evidence that their ad was accurate, cited several articles in which Brooks reportedly declined to endorse Trump.
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.

Saturday, August 5

Judge on federal court in New York to take senior status

Where was the president last week?

  • On Monday, President Donald Trump participated in the swearing-in of White House Chief of Staff John Kelly and then held a Cabinet meeting. Trump also awarded the Medal of Honor to former Specialist Five James C. McCloughan for conspicuous gallantry during the Vietnam War.
  • On Tuesday, Trump participated in a small business event, The Engine of the American Dream.
  • On Wednesday, Trump signed HR 3364—Countering America's Adversaries Through Sanctions Act.
  • On Thursday, Trump participated in a Department of Veterans Affairs Telehealth Event at the White House and a rally in Huntington, W.Va.
  • On Friday, Trump visited FEMA for a briefing on hurricane preparations. He then departed for New Jersey to begin his vacation at his golf course.

Federal Judiciary

  • 134 judicial vacancies in life-term, Article III judicial positions
  • 39 pending nominations to life-term, Article III judicial positions
  • 21 future vacancies to life-term, Article III judicial positions


About

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

Back to top • More articles

Retrieved from "https://ballotpedia.org/wiki/index.php?title=The_Federal_Tap:_DC_Circuit_court_grants_lawsuit_by_15_Democratic_state_AGs&oldid=8441518"