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The Federal Tap: The dusky gopher frog got its day in court
From Ballotpedia
November 30, 2018Issue No. 139
THE WEEK IN REVIEW
Tuesday, November 27
SCOTUS vacates and remands Weyerhaeuser Company v. United States Fish and Wildlife Service
- The U.S. Supreme Court held 8-0 on Tuesday in Weyerhaeuser Company v. United States Fish and Wildlife Service (FWS) to vacate the decision from the United States Court of Appeals for the 5th Circuit and remand the case—directing the Fifth Circuit to consider in the first instance whether the FWS' critical habitat designation was arbitrary, capricious, or an abuse of discretion.
- The case involved FWS' designation of private land in Louisiana as critical habitat for the dusky gopher frog. Landowners challenged the designation, which would have required them to take a variety of actions including replacing existing trees with different species, halting timber management activities, and allowing the land to be managed and populated with frogs. The Fifth Circuit affirmed the district court's ruling and applied Chevron deference—a principle in which federal courts yield to agency interpretations of the statutes that they administer—to defer to FWS' interpretation of the ESA and uphold the critical habitat designation.
- The Court instructed the Fifth Circuit to consider in the first instance whether the FWS' critical habitat designation was arbitrary, capricious, or an abuse of discretion. The court did not address broader questions of judicial deference, including the Fifth Circuit's application of Chevron deference in the case. Though the court held that FWS' action to designate critical habitat was reviewable, it relied on a narrow reading of the relevant statute and did not define the limits of what constitutes discretionary agency actions, which are not subject to judicial review.
- A lawyer with the Center for Biological Diversity, an environment-focused interest group, who opposed the ruling, stated that, "While we're disappointed, the ruling doesn't weaken the mandate to protect habitat for endangered wildlife.”
- An attorney for the Pacific Legal Foundation, a public interest law firm that represents property owners involved in the case, supported the decision, stating that, "The nation's hardworking property owners can rest easier tonight knowing government-sponsored land grabs just became a lot more difficult.”
Hyde-Smith wins in MS; Republicans will hold 53-47 majority in Senate in 2019
- Incumbent Sen. Cindy Hyde-Smith (R) defeated former U.S. Secretary of Agriculture Mike Espy (D) in the special election runoff for U.S. Senate in Mississippi. Hyde-Smith, who won the runoff 54-46, will serve the remainder of retired Sen. Thad Cochran's (R) term until January 3, 2021. Republicans have held both U.S. Senate seats from Mississippi since 1989.
- Republicans will hold a 53-47 majority in the U.S. Senate in the 116th Congress.
- In the 17 special elections called to fill vacancies in the 115th Congress in 2017 and 2018, nine Republicans and eight Democrats won. Four races resulted in a partisan flip—all from Republican to Democratic—for U.S. Senate in Alabama and the old 7th, 15th, and 18th Congressional Districts in Pennsylvania.
North Carolina State Board of Elections declines to certify 9th CD election results
- The North Carolina State Board of Elections, which is composed of four Democrats, four Republicans, and one independent member, voted unanimously not to certify the results in the state’s 9th Congressional District. Pastor Mark Harris (R) led businessman Dan McCready (D) by 905 votes, according to the unofficial tally.
- Vice Chairman Joshua Malcolm, who made the motion to delay certification, cited a law saying the board could "take any other action necessary to assure that an election is determined without taint of fraud or corruption and without irregularities that may have changed the result of an election."
- On Wednesday, Bobby Ludlum, the chairman of the Bladen County Board of Elections, said that the chief investigator for the state board collected absentee by mail ballot request forms and their return envelopes from Bladen County, which partially sits in the 9th District.
- On Friday, the board reconvened and voted, 7-2, for an evidentiary hearing on voting irregularities before December 21, 2018.
Wednesday, November 28
Who chose the judges sitting on the federal court benches?
- As of November 28, there were 782 judges serving in the federal courts. Eight different presidents have appointed at least one of these judges. Eighty-six (11.0%) have been appointed by Donald Trump, 334 (42.7%) by Barack Obama, 217 (27.8%) by George W. Bush, 103 (13.2%) by Bill Clinton, 18 (2.3%) by George H.W. Bush, 21 (2.7%) by Ronald Reagan, one (0.1%) by Jimmy Carter, and two (0.3%) by Gerald Ford. Overall, Republican presidents have appointed 344 (44.0%) and Democratic presidents appointed 438 (56.0%).
- What if you break it down by the type of federal court?
- There are nine Supreme Court justices. Democratic presidents appointed four (44.4%) and Republican presidents appointed five (55.6%) of them.
- There are currently 564 District Court judges. Democratic presidents appointed 328 (58.2%) and Republican presidents appointed 236 (41.8%) of them.
- There are currently 167 Circuit Court judges. Democratic presidents appointed 83 (49.7%) and Republican presidents appointed 84 (50.3%) of them.
- There are currently 42 subject-matter jurisdiction court judges, such as those who serve on the United States Tax Court or the Foreign Intelligence Surveillance Court. Democratic presidents appointed 23 (54.8%) and Republican presidents appointed 19 (45.2%) of them.
- What if you break it down by the type of federal court?
Thursday, November 29
Twenty-four of 38 2016 split-ticket U.S. House seats flipped
- Heading into the midterms, there were 38 U.S. House districts held by the party opposite from the presidential candidate who won the district in 2016.
- At least 21 of the 25 Republican-held districts that Hillary Clinton (D) won flipped, with voters electing a Democratic representative. Seven of the 25 split-ticket districts that had backed Clinton were in California. Six of them flipped and results in the seventh, California's 21st Congressional District, are still pending.
- Three of the 13 Democratic-held districts that Donald Trump (R) won flipped, with voters electing a Republican representative. Although they were scattered across the country, nine of the 13 split-ticket districts that had backed Trump were located in the midwest or the northeast, with five being in Minnesota or Pennsylvania.
Congress is in session
The Senate will be in session Monday through Friday. The House will be in session Tuesday through Friday.
SCOTUS is in session
The Supreme Court will hear arguments on December 3, December 4, and December 5. To learn more about this term, read our review.
WHAT'S ON TAP NEXT WEEK
Wednesday, December 5
SCOTUS hears Gamble v. U.S.
- The Supreme Court will hear oral argument in Gamble v. U.S. Terance Martez Gamble was convicted of possession of a firearm by a convicted felon. He appealed, arguing that the court was wrong in its ruling that the double jeopardy clause of the Fifth Amendment did not prohibit the federal government from prosecuting him for a crime that the state of Alabama had already prosecuted him for. At issue in the case is whether the court should overrule the "separate sovereigns" exception to the Double Jeopardy Clause.
Friday, December 7
U.S., Canada, and Mexico sign new trade agreement
- President Donald Trump took one step closer to fulfilling his campaign promise to renegotiate the North American Free Trade Agreement (NAFTA) when he, Canada's Prime Minister Justin Trudeau, and Mexico's President Enrique Peña Nieto signed the U.S.-Mexico-Canada Agreement (USMCA). The updated version of NAFTA must be ratified by all three countries before it can take effect. The USMCA is expected to be approved by the Canadian and Mexican legislatures, but it is unclear if the incoming Democrat-controlled U.S. House of Representatives will approve the new trade agreement, according to The Wall Street Journal. The Republican-controlled Senate is expected to approve the deal. Here are some of the provisions in the revised deal:
- Automobiles: Seventy-five percent of the value of a vehicle would have to be produced in the United States or Mexico, an increase from 62.5 percent required by NAFTA.
- Sunset clause: The deal would have a 16-year lifespan with a review every six years.
- Labor provisions: Members would have to follow the International Labor Organization labor rights standards. Among other provisions, the deal would require that 40 percent to 45 percent of automobile parts be made by workers earning at least $16 an hour. The deal would also protect the right to strike.
- Exchange-rate curbs: The deal would prevent members from artificially weakening their exchange rates.
- Dairy: The U.S. would have greater access to Canada’s dairy market.
- Pharmaceuticals: The patent life for biologic drugs would be 10 years instead of five.
- Dispute settlement: The investor-state dispute settlement system (ISDS) outlined in NAFTA would remain.
- Steel and aluminum: Tariffs on steel and aluminum would remain. They would be addressed separately from the USMCA.
Where was the president last week?
- On Monday, President Donald Trump held two campaign rallies in Mississippi for Sen. Cindy Hyde-Smith.
- On Tuesday, Trump had lunch with Secretary of State Mike Pompeo and Defense Secretary Jim Mattis. He also met with House Republican leadership.
- On Wednesday, Trump had lunch with Gov. Andrew Cuomo at the White House to discuss a program to build a new rail tunnel under the Hudson River. In the evening, Trump and first lady Melania Trump participated in the 96th National Christmas Tree Lighting ceremony outside the White House.
- On Thursday, Trump and Melania flew to Argentina for the Group of 20 summit.
- On Friday, Trump attended the G-20 summit in Argentina. While at the summit, Trump, Canada's Prime Minister Justin Trudeau, and Mexico's President Enrique Peña Nieto signed the U.S.-Mexico-Canada Agreement (USMCA), a revised version of NAFTA.
Federal Judiciary
- 136 federal judicial vacancies
- 69 pending nominations
- 23 future federal judicial vacancies
About
The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.
