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The Federal Tap: Supreme Court issues 11 rulings, concluding its 2018-19 term

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June 29, 2019Issue No. 166

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Week in review
On tap next week

THE WEEK IN REVIEW

Here's what happened in Federal politics last week.

Saturday, June 22

Biden’s campaign page leads Democrats in weekly pageviews on Ballotpedia

  • Each week, we report the number of pageviews received by each of the 2020 presidential campaigns on Ballotpedia. These numbers show which candidates are getting our readers' attention.
  • Former Vice President Joe Biden's (D) campaign page on Ballotpedia received 4,624 pageviews from June 16 to 22. His pageviews represented 8.4% of the pageviews for all Democratic candidates during the week. South Bend, Indiana, Mayor Pete Buttigieg (D) had 7.6% of the campaign pageviews for the week, while Sen. Elizabeth Warren (D-Mass.) had 7.0%.
  • Biden also had the largest increase in pageviews of all campaigns last week, increasing 37.6% over the previous week. The only other candidates with pageview increases of 25% or greater were Sen. Bernie Sanders (I-Vt.) with a 37.3% increase and Sen. Michael Bennet (D-Colo.) with a 26.3% increase.
  • The top three candidates in lifetime pageviews are Buttigieg with 72,598, entrepreneur Andrew Yang (D) with 59,440, and Sen. Kamala Harris (D-Calif.) with 53,693.
  • On the GOP side, former Massachusetts Gov. Bill Weld had 9,895 pageviews to President Trump's 1,706.

Sunday, June 23

Sestak becomes 25th notable Democrat to announce presidential run

  • Former Rep. Joe Sestak (D-Pa.) announced he was running for president, becoming the 25th notable Democrat to enter the race. In his announcement video, Sestak said, "We must convene the world for two primary objectives: Putting a brake on climate change and putting an end to an illiberal world order’s injustices." Sestak is a retired three-star admiral who served in the U.S. Navy. He also acted as director for defense policy in the Clinton administration.

Monday, June 24

Supreme Court issues opinions on the meaning of ‘crime of violence’, the Freedom of Information Act, trademarks, FOIA, and punitive damages

  • United States v. Davis was argued before the court on April 17, 2019.
    • A jury found defendants Maurice Lamont Davis and Andre Levon Glover guilty of illegally carrying a firearm while committing a crime of violence and of illegally using or carrying a firearm to aid and abet conspiracy to commit a crime of violence. The defendants challenged their sentences, which the 5th Circuit denied.
    • After the defendants petitioned the U.S. Supreme Court for review, SCOTUS remanded the case to the 5th Circuit. The 5th Circuit vacated its decision about the count to aid and abet conspiracy, holding it rested on a clause with a "crime of violence" definition that could be considered unconstitutionally vague. The government appealed the vacating of that decision to SCOTUS.
    • The outcome: The court issued a 5-4 decision that affirmed in part and vacated in part the 5th Circuit's ruling. The court also remanded the case. The court held that the clause in question was unconstitutionally vague.
    • Justice Neil Gorsuch wrote the majority opinion. Justice Brett Kavanaugh filed a dissenting opinion, joined by Justices Clarence Thomas and Samuel Alito and partially joined by Chief Justice John Roberts.
  • Food Marketing Institute v. Argus Leader Media was argued before the court on April 22, 2019.
    • Argus Leader Media filed a Freedom of Information Act (FOIA) request asking the U.S. Department of Agriculture (USDA) how much money retailers receive from taxpayers each year. The USDA would not release the information, citing numerous FOIA exemptions. Argus filed a lawsuit against the USDA in federal district court, which ruled in the USDA’s favor. On appeal, the 8th Circuit remanded the case.
    • On remand, the district court considered whether FOIA Exemption 4 applied to the information Argus was requesting. Exemption 4 is used to withhold "trade secrets and commercial or financial information obtained from a person and privileged or confidential."
    • The court ruled in favor of Argus and the USDA did not appeal the judgment. Instead, the petitioner Food Marketing Institute (FMI)—who was not named in the original lawsuit—filed the appeal. On appeal, the 8th Circuit affirmed the district court's decision.
    • The outcome: In a 6-3 decision, the court reversed the 8th Circuit's ruling and remanded the case. The court held that when an owner of commercial or financial information treats the information as private and shares that information with the government with an understanding of continued privacy, the information is confidential within the meaning of FOIA Exemption 4.
    • Justice Gorsuch wrote the majority opinion. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, filed an opinion concurring in part and dissenting in part.
  • Iancu v. Brunetti was argued before the court on April 15, 2019.
    • The case concerned the First Amendment and the registration of vulgar trademarks. Erik Brunetti tried to register his clothing brand's trademark "FUCT," but the U.S. Patent and Trademark Office denied the application. Brunetti appealed the decision, and the U.S. Court of Appeals for the Federal Circuit found that preventing him from trademarking "FUCT" violated his First Amendment rights.
    • Part of the Lanham Act (15 U.S.C. § 1052(a)) says a trademark application shall be refused if it "comprises immoral, deceptive, or scandalous matter."
    • The outcome: The U.S. Supreme Court affirmed the Federal Circuit's ruling in a 6-3 decision. The court held the "Lanham Act’s prohibition on registration of 'immoral[ ] or scandalous' trademarks violates the First Amendment."
    • Justice Elena Kagan wrote the majority opinion. Justice Alito filed a concurring opinion. Chief Justice Roberts and Justice Breyer filed opinions concurring in part and dissenting in part. Justice Sotomayor, joined by Justice Breyer, also filed an opinion concurring in part and dissenting in part.
  • The Dutra Group v. Batterton was argued before the court on March 25, 2019.
    • The case concerned maritime law. Christopher Batterton was injured while working on a vessel owned and operated by The Dutra Group. A hatch cover blew open and crushed his hand because the vessel was missing a safety feature, making the vessel unseaworthy. Batterton sued Dutra for punitive damages. The 9th Circuit ruled Batterton could receive punitive damages under claims for vessel unseaworthiness. According to the American Bar Association, the 9th Circuit differed from the 5th Circuit on the recovery of punitive damages based on an unseaworthiness claim. The Supreme Court agreed to resolve the split.
    • The outcome: The court reversed the 9th Circuit's ruling and remanded the case in a 6-3 decision, holding a "plaintiff may not recover punitive damages on a claim of unseaworthiness."
    • Justice Alito wrote the majority opinion. Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented.

Tuesday, June 25

Trump picks First Lady’s spokeswoman to be new press secretary

  • Donald Trump chose Melania Trump’s spokeswoman—Stephanie Grisham—to serve as the new White House press secretary. Grisham replaces Sarah Huckabee Sanders, who has held that position since July 2017.
  • The First Lady said in a tweet: “I am pleased to announce @StephGrisham45 will be the next @PressSec & Comms Director! She has been with us since 2015 – @potus & I can think of no better person to serve the Administration & our country. Excited to have Stephanie working for both sides of the @WhiteHouse.”
  • Grisham is Melania Trump’s deputy chief of staff for communications and will continue to serve in that role when she becomes press secretary. She was a member of Trump’s presidential transition team and worked on former presidential candidate Mitt Romney’s campaign.

Wednesday, June 26

Democratic debates in Miami - Night #1

  • The first set of 10 Democratic presidential candidates took the stage in Miami in the first debate of the 2020 presidential campaign. The participants, in alphabetical order, were: Cory Booker, Julián Castro, Bill de Blasio, John Delaney, Tulsi Gabbard, Jay Inslee, Amy Klobuchar, Beto O'Rourke, Tim Ryan, and Elizabeth Warren.
  • José Diaz-Balart, Savannah Guthrie, Lester Holt, Rachel Maddow, and Chuck Todd moderated the event, which was hosted by NBC News, MSNBC, and Telemundo.
  • The candidates primarily discussed healthcare, immigration, corporate consolidation and taxation, and other domestic policy issues.
  • For an overview of the debate, including candidate highlights and participation numbers, click here.

Supreme Court issues rulings on Auer deference, supervised prison release, and state requirements for liquor licenses

  • Kisor v. Wilkie was argued before the court on March 27, 2019.
    • The case was about whether courts should defer to an agency's interpretation of its own regulations. It involved whether the court should overturn Bowles v. Seminole Rock & Sand Co. (1945) and Auer v. Robbins (1997).
    • The U.S. Department of Veterans Affairs (VA) denied a Marine's initial claim of disability benefits in 1983. In 2006, the agency re-opened his case and awarded benefits, but he disputed when the effective date of those benefits should be. The Marine, James Kisor, disagreed with the VA's interpretation of the term "relevant" in one of the regulations under which the agency denied him retroactive benefits. The Federal Circuit Court of Appeals upheld the VA interpretation under Auer deference.
    • Deference is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. Click here for more information.
    • The outcome: The court unanimously ruled to vacate the Federal Circuit's judgment and remand the case, but the justices disagreed about the future of judicial deference in general. The court instructed the Federal Circuit to redo the case and decide whether Auer deference was appropriate under the criteria laid out in Kisor.
  • United States v. Haymond was argued before the court on February 26, 2019.
    • Andre Ralph Haymond was convicted of possession and attempted possession of child pornography in 2010. He was on supervised release in 2015 when probation officers seized a phone and four computers during a surprise search of his apartment. Following a forensic search of the devices, officers found Haymond had committed five violations of the conditions of his supervised release. Haymond was sentenced to five years in jail. Haymond appealed, arguing the court did not have sufficient evidence to convict him of one of the five violations and that he had been deprived of due process.
    • The outcome: In a 5-4 decision, the court vacated and remanded the 10th Circuit's judgment. The court held that federal law violated Haymond's Fifth and Sixth Amendment rights.
    • Justice Gorsuch wrote the majority opinion. Justice Breyer concurred in judgment. Justice Alito dissented, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh.
  • Tennessee Wine & Spirits Retailers Association v. Byrd was argued before the court on January 16, 2019.
    • The Tennessee Alcoholic Beverage Commission (TABC) deferred voting on two liquor license applications due to state residency requirements for obtaining a liquor license. The Tennessee Wine and Spirits Retailers Association told the TABC that it would likely file suit in representation of the two businesses in question. The state attorney general then sought a declaratory judgment on whether the residency rules were constitutional.
    • The outcome: In a 7-2 opinion, the court affirmed the 6th Circuit's ruling. The court held the state's two-year durational-residency requirement for retail liquor license applicants was unconstitutional.
    • Justice Alito wrote the majority opinion. Justice Gorsuch filed a dissenting opinion, joined Justices Thomas.

Thursday, June 27

Supreme Court rules on redistricting, a citizenship question on the 2020 Census, and warrantless searches and seizures

  • Rucho v. Common Cause was argued before the court on March 26, 2019.
    • Common Cause filed suit on August 5, 2016, in the U.S. District Court for the Middle District of North Carolina, arguing North Carolina's congressional district plan was an illegal partisan gerrymander. On August 22, 2016, the League of Women Voters of North Carolina filed a similar suit in the same court. The two cases were consolidated. On August 27, 2018, a U.S. district court ruled in favor of the plaintiffs. The defendants appealed to the U.S. Supreme Court.
    • The outcome: See the outcome for Lamone v. Benisek below.
  • Lamone v. Benisek was argued before the court on March 26, 2019.
    • The case was a continuation of a case originally brought before the high court as Benisek v. Lamone in the 2017-2018 term.
    • Seven Republicans, all of whom lived and voted in Maryland's 6th Congressional District before its reconfiguration in the 2010 redistricting cycle, claimed state lawmakers altered the 6th District’s boundaries in order to dilute the influence of Republican votes. The plaintiffs alleged this action violated their First Amendment associational rights. The U.S. District Court for the District of Maryland ruled in favor of the plaintiffs on November 7, 2018.
    • The outcome: In a joint ruling for Rucho v. Common Cause and Lamone v. Benisek, the court ruled 5-4 that partisan gerrymandering claims present political questions that fall beyond the jurisdiction of the federal judiciary. The high court remanded the case to the lower court with instructions to dismiss for lack of jurisdiction.
    • Chief Justice Roberts penned the majority opinion. Justice Kagan dissented, joined by Justices Ginsburg, Breyer, and Sotomayor.
  • Department of Commerce v. New York was argued before the court on April 23, 2019.
    • The case concerned a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census.
    • In March 2018, Commerce Secretary Wilbur Ross announced the 2020 census would include a question about citizenship to help the U.S. Department of Justice (DOJ) enforce voting rights. Some states and civil rights groups then challenged the question's addition. They argued households with individuals residing in the country illegally would be less likely to respond to the census, resulting in an inaccurate count.
    • Judge Jesse Furman of the U.S. District Court for the Southern District of New York issued a ruling in a consolidated case on January 15, 2019, holding Ross violated the Administrative Procedure Act (APA) by not properly following APA procedure when including the citizenship question in the 2020 census.
    • The DOJ appealed to the U.S. Supreme Court and requested the court bypass an appellate court decision in order to issue a ruling in time for the 2020 census.
    • The outcome: The court held 5-4 to affirm in part, reverse in part, and remand the case to the district court for further review. The justices ruled that the Trump administration's decision to add the citizenship question to the census did not violate the Enumeration Clause or the Census Act, but that Commerce Secretary Ross' rationale for the decision was inconsistent with the administrative record.
  • Mitchell v. Wisconsin was argued before the court on April 23, 2019.
    • A Sheboygan police officer arrested Gerald P. Mitchell for operating a vehicle while intoxicated and subsequently determined Mitchell needed to be taken to the hospital. The police officer read Mitchell a statutorily mandated form regarding the state implied consent law, but Mitchell was incapacitated and did not indicate understanding or consent. The officer instructed the hospital staff to conduct a blood test, which revealed a blood alcohol content above the legal limit.
    • Mitchell was charged with operating while intoxicated and with a prohibited alcohol concentration. He moved to suppress the blood test, arguing it was taken without a warrant. The state argued that under implied consent laws, Mitchell gave his permission to the blood test by operating the vehicle on a state road. A jury convicted him of the charges.
    • Mitchell appealed the conviction and the court of appeals certified his case to the Wisconsin Supreme Court with respect to the issue "whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law...violates the Fourth Amendment." In a 5-2 ruling with two justices writing a concurring decision, the state Supreme Court upheld the blood draw but did not have a majority for the rationale upholding it.
    • The outcome: The court issued a 5-4 opinion holding that "when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant."
    • Justice Alito wrote the majority opinion. Justice Thomas filed a concurring opinion. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan. Justice Gorsuch also filed a dissenting opinion.

Democratic debates in Miami - Night #2

  • The second set of 10 Democratic presidential candidates debated in Miami. The participants, in alphabetical order, were: Michael Bennet, Joe Biden, Pete Buttigieg, Kirsten Gillibrand, Kamala Harris, John Hickenlooper, Bernie Sanders, Eric Swalwell, Marianne Williamson, and Andrew Yang.
  • The candidates discussed Medicare for All, healthcare for individuals residing in the U.S. without legal permission, family separations at the border, abortion, and racial discrimination, among other issues.
  • For an overview of the debate, including candidate highlights and participation numbers, click here.

Congress is out of session

The Senate and the House will be out of session next week. Click here to see the full calendar for the first session of the 116th Congress.

SCOTUS is out of session

The Supreme Court finished hearing arguments for the October 2018-2019 term on April 24. It released the final opinions of the term on June 27. 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.

Friday, July 5

Early voting scheduled to end in NC-03 Republican primary runoff

  • Early voting in the Republican primary runoff for North Carolina's 3rd Congressional District is scheduled to end. State Rep. Greg Murphy and Dr. Joan Perry are competing for the Republican nomination, and the winner will face Allen Thomas (D) and Tim Harris (L) in the September 10 general election. The general election will fill the vacancy left by Walter Jones (R), who died on February 10, 2019.
  • Joe Anne Jones, the widow of Walter Jones, held a press conference last week where she did not endorse either candidate. Both candidates have drawn support from lawmakers and outside groups, however. Murphy has the backing of Rep. Mark Meadows, the House Freedom Caucus, and the National Rifle Association. Perry is endorsed by the 13 female Republican members of the U.S. House, Winning for Women Action Fund, and FreedomWorks for America.
  • Perry has focused her campaign on abortion, highlighting her experience as a pediatrician. She says that life begins at conception and that she opposes abortion. Murphy's campaign has focused on fiscal issues, with him calling for a reduction in the size of the federal government and saying he supports a balanced budget amendment.
  • So far, four special elections have been called during the 116th Congress. Three of those are for seats in the U.S. House, and one is for a seat in the U.S. Senate.

Where was the president last week?

  • On Monday, Trump signed an Executive Order on improving price and quality transparency in healthcare.
  • On Tuesday, Trump spoke at a joint fundraising committee reception in Washington, D.C.
  • On Wednesday, Trump delivered remarks at the Faith & Freedom Coalition 2019 Road To Majority Policy Conference.
  • On Thursday, Trump participated in meetings with the Prime Minister of Australia, the Prime Minister of Japan, and the Prime Minister of the Republic of India during his visit to Japan.
  • On Friday, Trump participated in the G20 cultural program in Japan.

Federal Judiciary

  • 127 federal judicial vacancies
  • 61 pending nominations
  • 17 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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