The Federal Tap: SCOTUS issues 12 opinions this week

June 22, 2019Issue No. 165

Week in review

On tap next week

THE WEEK IN REVIEW

Here's what happened in Federal politics last week.

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• Saturday
• Sunday
• Monday
• Tuesday
• Wednesday
• Thursday
• Friday

Saturday, June 15

Buttigieg receives most Ballotpedia pageviews among Democratic candidates this week, followed by Biden and Yang

• South Bend, Indiana, Mayor Pete Buttigieg received 3,771 pageviews on Ballotpedia, the most of any Democratic presidential candidate during this past week. This number represents 8.1% of the pageviews of all Democratic campaigns during the week. Former Vice President Joe Biden had 7.2% of the campaign pageviews for the week, while entrepreneur Andrew Yang had 7.1%.
• Former Alaska Sen. Mike Gravel had the largest increase of all the campaigns last week, with a 3.8% increase over his previous total.
• The top three Democratic campaigns in lifetime pageviews are those of Buttigieg with 68,395, Yang with 55,707, and California Sen. Kamala Harris with 49,969.
• On the Republican side, former Massachusetts Gov. Bill Weld had 8,102 pageviews to President Trump's 1,393 during the past week.

Monday, June 17

SCOTUS releases opinions on free speech, uranium mining, double jeopardy, and gerrymandering

• Manhattan Community Access Corp. v. Halleck was argued before the court on February 25, 2019.
  • A public access station operated by the Manhattan Neighborhood Network (MNN) in New York City suspended two contributors from using the station's services and facilities for allegedly harassing and inciting violence against other MNN employees. The contributors then filed a lawsuit claiming MNN was violating their First Amendment rights. The First Amendment only applies to state actors, and the U.S. District Court ruled MNN was not a state actor. The Second Circuit Court disagreed, ruling MNN was a state actor.
  • The outcome: The U.S. Supreme Court ruled 5-4 that MNN "is not a state actor subject to the First Amendment."
  • Justice Kavanaugh wrote the 5-4 opinion. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.
• Virginia Uranium v. Warren was argued before the court on November 5, 2018.
  • The Commonwealth of Virginia banned the mining of uranium in 1981, following the discovery of a uranium deposit in Pittsylvania County. Virginia Uranium, the owner of the uranium mine, filed suit, asking the court to declare that the federal Atomic Energy Act (AEA) preempted the state ban and to compel the state to grant uranium mining permits. The U.S. District Court granted the Commonwealth's motion to dismiss the complaint, finding the AEA does not "regulate nonfederal uranium deposits or their conventional mining." Virginia Uranium appealed, and the 4th Circuit Court of Appeals affirmed the lower court's ruling.
  • The outcome: The court affirmed the 4th Circuit in a 6-3 opinion, holding "while the AEA affords the [Nuclear Regulatory Commission] considerable authority over the nuclear fuel life cycle, it offers no hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders."
  • Justice Gorsuch wrote the opinion. Justice Ginsburg filed a concurring opinion, joined by Justices Sotomayor and Kagan. Chief Justice Roberts dissented, joined by Justices Breyer and Alito.
• Gamble v. United States was argued before the court on December 6, 2018.
  • Terance Martez Gamble was convicted of possession of a firearm by a convicted felon in Alabama. The federal government also charged him for the same crime. The district court dismissed Gamble's motion that the charges violated his Fifth Amendment right against double jeopardy. Gamble appealed, arguing the court was wrong in its ruling. The 11th Circuit Court of Appeals affirmed the lower court's judgment.
  • The outcome: The court issued a 7-2 opinion upholding the judgment of the 11th Circuit. The court held that if two different sovereigns charge an individual for the same crime, they are not violating the double jeopardy clause of the Fifth Amendment.
  • Justice Alito wrote the opinion. Justice Thomas concurred. Justices Ginsburg and Gorsuch both filed dissenting opinions.
• Virginia House of Delegates v. Bethune-Hill was argued before the court on March 18, 2019.
  • This was the second time the Supreme Court heard arguments in the case, having first heard it in 2017 as Bethune-Hill v. Virginia Board of Elections.
  • At issue were 11 state legislative districts that a federal district court struck down in 2018 as illegal racial gerrymanders. The plaintiffs (the Virginia House of Delegates, the state board of elections, and other state officials) contested this, arguing instead that the district court applied improper standards in making its ruling.
  • The outcome: The court found that the House of Delegates lacked standing to appeal a lower court order striking down the original legislative district plan as a racial gerrymander. The high court ruled 5-4, with Justice Ginsburg penning the majority opinion. Justice Alito dissented, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh. As a result of the high court's ruling, the lower court order implementing a remedial district plan was upheld.

Tuesday, June 18

Bullock becomes 21st Democrat to qualify for July presidential debates

• Montana Governor Steve Bullock's campaign announced that he met the polling threshold to participate in the second set of Democratic presidential primary debates. The two CNN-hosted debates will take place July 30 and 31 in Detroit, Michigan.
• Bullock is the 21st candidate to meet at least one of the two criteria to qualify, but the DNC has said that no more than 20 candidates—10 per night—can participate. His qualification will trigger tie-breakers to determine the list of candidates.
• The thresholds to qualify for this debate are:
  • Receive 1% support or more in three national or early state polls—Iowa, New Hampshire, South Carolina, and/or Nevada—publicly released between January 1, 2019, and 14 days prior to the date of the debate.
  • Receive donations from at least 65,000 unique donors and a minimum of 200 unique donors per state in at least 20 states.
• The DNC has announced that the following tiebreakers will be used, in order of preference:
  • Candidates who have reached both the polling and grassroots thresholds;
  • Candidates with the highest polling averages; and
  • Candidates with the highest number of contributions.
• Four noteworthy Democratic candidates have not yet met either the polling or fundraising criteria for the July 30 and 31 debates: Michael Bennet, Mike Gravel, Seth Moulton, and Wayne Messam.
• Bullock is one of four noteworthy Democratic primary candidates who did not qualify for the first set of debates taking place June 26 and 27 in Miami, Florida. The others are Gravel, Moulton, and Messam.

Wednesday, June 19

Early voting begins in NC-3 Republican runoff

• Early voting began for the July 9 Republican runoff in North Carolina's 3rd Congressional District. The runoff election features State Rep. Greg Murphy and Dr. Joan Perry, who advanced from the Republican primary on April 30. The GOP nominee will face Allen Thomas (D) and Tim Harris (L) in a special election September 10.
• Murphy was endorsed by Rep. Mark Meadows (NC-11), chair of the House Freedom Caucus, after the primary. Perry was endorsed by the Winning for Women Action Fund ahead of the primary, and the group reiterated their endorsement after the primary. Both the House Freedom Fund political action committee and the Winning for Women Action Fund have made ad buys in the race opposing the other candidate.
• The special election will fill the vacancy left by Walter Jones (R), who died on February 10, 2019. Jones, who was first elected in 1994, did not face a general election challenger in 2018, and he won re-election in 2016, 2014, and 2012 by about 30 percentage points. In the 2016 presidential election, the district voted for Donald Trump (R) over Hillary Clinton (D) by more than 23 percentage points.

Senate confirms four judges to U.S. District Courts

• The U.S. Senate confirmed four judges to U.S. District Courts, which are the general trial courts of the U.S. federal court system.
  • Greg Guidry was confirmed to the Eastern District of Louisiana. After he receives his judicial commission and takes his judicial oath, the court will have:
    • No vacancies.
    • Six Republican and six Democratic presidential appointees.
  • James Cain, Jr. was confirmed to the Western District of Louisiana. After he receives his judicial commission and takes his judicial oath, the court will have:
    • One vacancy.
    • Five Republican presidential appointees and one Democratic presidential appointee.
  • Matthew Kacsmaryk was confirmed to the Northern District of Texas. After he receives his judicial commission and takes his judicial oath, the court will have:
    • Four vacancies.
    • Six Republican and two Democratic presidential appointees.
  • Allen Winsor was confirmed to the Northern District of Florida. After he receives his judicial commission and takes his judicial oath, the court will have:
    • One vacancy.
    • Two Republican presidential appointees and one Democratic appointee.
• The Senate has confirmed 123 of President Trump’s Article III judicial nominees—78 district court judges, 41 appeals court judges, and two Supreme Court justices—since January 2017.

Thursday, June 20

SCOTUS releases opinions on the nondelegation doctrine, statutes of limitations, religious symbols, and federal agency rulemaking

• Gundy v. United States was argued before the court on October 2, 2018.
  • Herman Gundy was convicted of failing to register as a sex offender as required by the Sex Offender Notification and Registration Act (SORNA) after traveling by bus from Pennsylvania to New York as part of his transfer from federal custody to a halfway house. Gundy appealed his conviction and argued that his case predated SORNA and that Congress had violated the nondelegation doctrine by delegating the interpretation and regulation of SORNA's application to preexisting cases to the U.S. attorney general.
  • The outcome: In a 5-3 decision, the U.S. Supreme Court affirmed the decision of the lower courts, upholding the provision of SORNA that empowered the U.S. Attorney General to decide how the law applied to sex offenders who were convicted before the law passed. The court ruled that the law did not violate the nondelegation doctrine.
  • Justice Kagan penned the majority opinion. Justice Alito filed an opinion concurring in judgment. Justice Gorsuch dissented, joined by Chief Justice Roberts and Justice Thomas. Justice Kavanaugh did not participate in the case.
• McDonough v. Smith was argued before the court on April 17, 2019.
  • Edward McDonough, an election official in New York, was indicted on 74 felony counts of ballot forgery. Special district attorney Youel Smith prosecuted McDonough. A first trial ended in a mistrial. McDonough was acquitted in a second trial in 2012. McDonough filed a lawsuit in 2015 under 42 U.S.C. § 1983 claiming Smith fabricated evidence and used it against him in the previous trials. The Northern District of New York ruled McDonough filed the lawsuit too late, holding the statute of limitations begins when the plaintiff has "reason to know of the injury which is the basis of his action." The 2nd Circuit of Appeals upheld the district court's ruling, disagreeing with decisions the 3rd Circuit, 9th Circuit, and 10th Circuit made in other cases.
  • The outcome: The U.S. Supreme Court reversed the 2nd Circuit's judgment and remanded the case. The court's decision upheld a majority of circuit courts, holding that a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant's favor.
  • Justice Sotomayor wrote the opinion. Justice Thomas dissented, joined by Justices Kagan and Gorsuch.
• The American Legion v. American Humanist Association was argued before the court on February 27, 2019.
  • In 1961, a government planning commission in Maryland purchased land that contains a cross honoring World War I veterans. The American Humanist Association and some non-Christian residents of Prince George’s County, Maryland, said they were offended by the cross. They argued the government's maintenance of the memorial was an endorsement of Christianity and a violation of the Establishment Clause of the First Amendment.
  • The outcome: The U.S. Supreme Court reversed the 4th Circuit's ruling and remanded the case in a 7-2 ruling. The court held the cross did not violate the Establishment Clause because (1) it was significant as a secular World War I symbol and (2) it acquired historical importance.
  • Justice Alito wrote the majority opinion. Justice Ginsburg dissented, joined by Justice Sotomayor.
• PDR Network, LLC v. Carlton & Harris Chiropractic Inc. was argued before the court on March 25, 2019.
  • In 2013, PDR Network, LLC sent a fax to Carlton & Harris, a West Virginia chiropractor, offering the company a free copy of the Physicians Desk Reference. Carlton & Harris then sued PDR in federal court under the Telephone Consumer Protection Act (TCPA). The TCPA prohibits companies from using fax machines to send unsolicited advertisements and allows the recipient of an unsolicited fax advertisement to sue the sender. The district court granted PDR Network’s motion to dismiss. On appeal, the 4th Circuit vacated the district court's ruling.
  • The outcome: In a unanimous opinion, the U.S. Supreme Court vacated the 4th Circuit's ruling and remanded the case for the 4th Circuit to consider two questions: (1) whether the FCC order was a legislative rule with the force of law or an interpretive rule and (2) did PDR have prior adequate opportunity to seek judicial review of the order.
  • Justice Breyer wrote the majority opinion. Justice Thomas wrote a concurring opinion, joined by Justice Gorsuch. Justice Kavanaugh also wrote a concurring opinion, joined by Justices Thomas, Alito, and Gorsuch.

Friday, June 21

SCOTUS releases opinions on jury selection, state taxation, firearm possession, and the takings clause

• Flowers v. Mississippi was argued before the court on March 20, 2019.
  • Curtis Flowers was sentenced to death for a quadruple murder in Winona, Mississippi, in 1996. He was tried six times for the crime. In two of the trials, the prosecutor was found to have violated the ban on racial discrimination in selecting jurors. After the sixth trial, Flowers challenged the prosecutor's rejection of black jurors, but the Mississippi Supreme Court rejected his challenge. The U.S. Supreme Court then ordered the Mississippi Supreme Court to reconsider the ruling, and the court reinstated and affirmed Flowers' convictions and death sentence.
  • The outcome: In a 7-2 opinion, the U.S. Supreme Court reversed the judgment of the Supreme Court of Mississippi and remanded the case. The court held that the trial court at Flowers' sixth trial was wrong to conclude the State's peremptory strike of a black prospective juror was not racially motivated.
  • Justice Kavanaugh wrote the majority opinion. Justice Alito filed a concurring opinion. Justice Thomas dissented, joined by Justice Gorsuch.
• North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust was argued before the court on April 16, 2019.
  • In 1992, Joseph Lee Rice III established a trust in New York for the benefit of his descendants. In 2002, the trust was divided into three sub-trusts, including the Kimberley Rice Kaestner 1992 Family Trust ("the Trust"), which benefited Rice's daughter Kimberley Rice Kaestner, then a North Carolina resident.
  • In 2009, Trust representatives filed a claim for a refund of taxes paid to the North Carolina Department of Revenue between 2005 and 2008. The department denied the request. The representatives then sued in state court. The state court ruled the state statute enabling the department of revenue to collect taxes from the trust was unconstitutional. The state appellate and supreme courts upheld the lower state court's decision. The department of revenue appealed to the U.S. Supreme Court, asking the court to decide whether the due process clause prohibits states from taxing trusts based on trust beneficiaries' in-state residency.
  • According to Oyez, the "Due Process Clause of the Fourteenth Amendment requires 'minimum contacts' connecting a state and the property it seeks to tax."
  • The outcome: In a unanimous opinion, the U.S. Supreme Court affirmed the judgment of the North Carolina Supreme Court. The court held a state is not authorized to tax trust income of an in-state beneficiary if the income has not been distributed to the beneficiary during the years in question.
  • Justice Sotomayor wrote the majority opinion. Justice Alito filed a concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch.
• Rehaif v. United States was argued before the court on April 23, 2019.
  • Hamid Mohamed Ahmed Ali Rehaif was in the U.S. on a nonimmigrant student visa. After he was no longer enrolled at the university, Rehaif's immigration status was terminated in February 2015. Rehaif remained in the U.S. and, in December 2015, purchased ammunition and rented a firearm at a shooting range. A grand jury charged Rehaif with violating 18 U.S.C. § 922(g)(5)(A), which prohibits a person who is illegally in the United States from possessing firearms or ammunition.
  • 18 U.S.C. § 924(a)(2) defines punishment for § 922(g) crimes: "Whoever knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both."
  • At trial, the government and Rehaif requested different jury instructions. The district court instructed the jury as requested by the government and overruled an objection from Rehaif. On appeal, the 11th Circuit affirmed the convictions.
  • The outcome: The U.S. Supreme court issued a 7-2 ruling to reverse the 11th Circuit Court of Appeal's judgment and remand the case. The court held that in order to secure a conviction for illegal possession of firearms, prosecutors must show that the defendant knowingly possessed and firearm and knew that they were barred from doing so.
  • Justice Breyer wrote the opinion. Justice Alito filed a dissenting opinion, joined by Justice Thomas.
• Knick v. Township of Scott, Pennsylvania was argued before the court on October 3, 2018, and reargued on January 16, 2019.
  • Mary Rose Knick challenged an ordinance passed by the Township of Scott in Pennsylvania, arguing it violated the Fifth Amendment’s Takings Clause. Under an earlier Supreme Court case, Williamson County Regional Planning Commission v. Hamilton Bank, plaintiffs are required to exhaust all state court remedies before filing a takings claim in federal court. A U.S. District Court, citing Williamson, dismissed Knick's lawsuit, ruling that Knick had failed to exhaust her state remedies. The Third Circuit affirmed.
  • The outcome: The U.S. Supreme Court ruled 5-4 to vacate the ruling of the 3rd Circuit and remand the case. The court overturned the exhaustion requirement established in Williamson, holding that a Fifth Amendment violation occurred when the government takes property without providing due compensation, and therefore the property owner can take their case before a federal court.
  • Chief Justice Roberts wrote the majority opinion. Justice Thomas filed a concurring opinion. Justice Kagan dissented, joined by Justices Ginsburg, Breyer, and Sotomayor.

Congress is in session

The Senate will be in session June 24-28, and the House will be in session June 24-27. Click here to see the full calendar for the first session of the 116th Congress.

SCOTUS is in session

The Supreme Court finished hearing arguments for the October 2018-2019 term on April 24. 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.

• Skip to:
• Saturday
• Sunday
• Monday
• Tuesday
• Wednesday
• Thursday
• Friday

Where was the president last week?

• On Monday, Trump had lunch with the vice president.
• On Tuesday, Trump launched his 2020 re-election campaign with a Make America Great Again rally in Orlando.
• On Wednesday, Trump took part in a roundtable with supporters and attended a fundraising committee luncheon.
• On Thursday, Trump met with the Prime Minister of Canada.
• On Friday, Trump received a briefing on the 2019 hurricane season

Federal Judiciary

• 131 federal judicial vacancies
• 60 pending nominations
• 15 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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