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The Federal Tap: Trump’s endorsement and new polling in Tuesday’s Alabama Senate race

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August 11, 2017Issue No. 76

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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.

Saturday, August 5

UN passes U.S.-drafted resolution imposing largest economic sanctions package ever on North Korea

  • The United Nations unanimously passed a resolution placing sanctions on North Korea for its efforts to develop nuclear weapons. The resolution banned North Korean exports of coal, iron, iron ore, lead, lead ore, and seafood, which could cost North Korea $3 billion in annual export revenue, according to Reuters. After the vote, U.S. Ambassador to the UN Nikki Haley thanked her UN colleagues for "sending a strong message to the North Korean regime." Part of her statement can be viewed here.

Monday, August 7

Federal Circuit holds that process for creating and disseminating podcasts cannot be patented

  • On Monday, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld a judgment of the Patent Trial and Appeal Board (Board) that a patent held by Personal Audio LLC entitled “System for Disseminating Media Content Representing Episodes in a Serialized Sequence” was unpatentable. The patent is often referred to as the podcasting patent. The suit was brought by the Electronic Frontier Foundation, who argued that the patent was unenforceable because claims were anticipated prior to Personal Audio securing the patent—thus preventing Personal Audio from making a patentable claim on a technology they did not invent—and that the claimed invention was too obvious in the marketplace to warrant patent protection. Writing for the panel, Judge Pauline Newman upheld the Board’s judgment, holding that the Board correctly constructed the terms of the patent under review and that the Board’s decision to render the patent unenforceable was merited under federal law.

Moore tops Republican field in new U.S. Senate special election in Alabama poll

Tuesday, August 8

Federal court strikes down EPA ban on hydrofluorocarbons (HFCs)

  • The D.C. Circuit Court of Appeals, in a 2-1 decision, said the Environmental Protection Agency does not have the authority to ban the use of hydrofluorocarbons (HFCs). The ban was enacted as part of a 2015 rule prohibiting the use of HFCs, which are commonly found in aerosol cans, air conditioners, and refrigerators, following research indicating they might contribute to climate change. The court ruled that since HFCs are not ozone-depleting, the EPA cannot use the Clean Air Act to ban their use. The rule was passed under the Obama administration to comply with the 1987 Montreal Protocol, an agreement aimed at stopping ozone depletion. The Trump administration defended the EPA’s decision during oral arguments in the case in February. The EPA is reviewing the decision before deciding whether or not to appeal the court's ruling.

Tenth Circuit holds Native Americans cannot be tried in state court for offenses on Indian lands

  • On Tuesday, a three-judge panel of the United States Court of Appeals for the 10th Circuit held that Patrick Dwayne Murphy’s 2000 conviction and capital sentence for a homicide committed on Indian lands in Oklahoma must be invalidated. Murphy was convicted and sentenced in an Oklahoma state court for first degree murder, but raised a point on appeal that, as the crime occurred on the Creek Reservation in Oklahoma, Murphy should have been tried in federal court. A federal district court upheld Murphy’s conviction, but the Tenth Circuit reversed. Writing for the panel, Judge Scott Matheson held that, “because...Murphy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked jurisdiction.” The panel sent the case back to the lower court. It was not yet known if federal authorities would prosecute Murphy for the murder.

First Circuit upholds constitutionality of Maine's noise ordinance provision

  • A three-judge panel of the United States Court of Appeals for the 1st Circuit upheld the constitutionality of a provision of Maine's Civil Rights Act (MCRA) making it a violation to, among other things, make noise in a certain way and for certain reasons. The conduct identified under the MCRA that may give rise to a violation includes, "intentionally making noise that can be heard within a building and with the further intent either: (1) To jeopardize the health of persons receiving health services within the building; or (2) To interfere with the safe and effective delivery of those services within the building." The case came about after an abortion protester, Andrew March, filed a lawsuit alleging the ordinance violated his First Amendment rights of free expression. In a unanimous opinion for the panel, Judge David Barron rejected March's argument that the provision unconstitutionally restricted the content of one's speech, noting that the provision made no references to the content of speech and that Maine's asserted interest in protecting patients receiving health services, coupled with the time, place, and manner of regulating speech provided under the noise provision, satisfied the First Amendment.

Trump endorses Strange in U.S. Senate special election in Alabama

  • President Donald Trump endorsed incumbent Sen. Luther Strange in the U.S. Senate special election in Alabama on Tuesday night. He tweeted, "Senator Luther Strange has done a great job representing the people of the Great State of Alabama. He has my complete and total endorsement!" One of Strange’s Republican primary rivals, Rep. Mo Brooks, responded to the endorsement on Wednesday, saying, “Perhaps President Trump is unaware that Luther Strange wants to keep the Senate's 60 percent rule that empowers Chuck Schumer and the Democrats to kill the entire conservative, Republican, and President Trump legislative agendas. ... In any event, while Mitch McConnell and the Swamp managed to mislead the President last night, I still support the America First Agenda, and all the polls show we have momentum." Last month, Brooks was endorsed by seven Trump delegates. He and Strange have both aligned themselves with the Trump administration’s immigration agenda and America First policy in recent campaign ads.

Wednesday, August 9

Tillerson: No imminent threat to Guam from North Korea

  • During a press conference while en route to Guam, Secretary of State Rex Tillerson was asked if he had considered re-routing after North Korea said it would direct missiles on the island. Tillerson said, "Well, the North Korean missile capability can point in many directions, so Guam is not the only place that would be under threat. No, I never considered re-routing the trip back, and I do not believe that there is any imminent threat, in my own view." Tillerson was then asked if Americans should be scared by North Korea’s threat of a nuclear attack. Tillerson said, “I think Americans should sleep well at night, have no concerns about this particular rhetoric of the last few days. I think that the President, again, as commander-in-chief, I think he felt it necessary to issue a very strong statement directly to North Korea. But I think what the President was just reaffirming is the United States has the capability to fully defend itself with any attack, will defend our allies, and we will do so. So the American people should sleep well at night.” On August 8, 2017, President Donald Trump said, “North Korea best not make any more threats to the United States. He [Kim Jong Un] has been very threatening beyond a normal state, and as I said they will be met with fire, fury and frankly power, the likes of which this world has never seen before.” In response, North Korea threatened to attack Guam.

Mattis warns North Korea that pursuit of nuclear weapons will lead to its destruction

  • Secretary of Defense James Mattis warned North Korean leader Kim Jong Un that if his country continues its pursuit of nuclear weapons it "would lead to the end of its regime and the destruction of its people." He added, “While our State Department is making every effort to resolve this global threat through diplomatic means, it must be noted that the combined allied militaries now possess the most precise, rehearsed and robust defensive and offensive capabilities on Earth. The DPRK regime's actions will continue to be grossly overmatched by ours and would lose any arms race or conflict it initiates.” Mattis’ full statement can be viewed here.

Rep. Rokita announces U.S. Senate bid

  • Rep. Todd Rokita (IN-04) announced that he was challenging incumbent Joe Donnelly (D) in Indiana’s 2018 Senate race. Rokita made his announcement at the Indiana statehouse, stating, “Hoosiers want a commonsense senator willing to take on tough fights. Hoosiers want a conservative senator who shares our values and works with President Trump and Vice President Pence to turn the country around. Hoosiers want a senator who votes the interests of Hoosiers, not the Washington elite. We don’t have that in Joe Donnelly, and too much is at stake to accept it.” Rokita joins an already crowded Republican primary field. Among those who have already announced bids are fellow U.S. Rep. Luke Messer and State Rep. Mike Braun. Indiana’s Senate race is expected to be a battleground in 2018, as it is one of 10 states with a Democratic incumbent senator that President Donald Trump won in 2016.

Rep. Tsongas announces her retirement

  • Rep. Niki Tsongas (MA-03) announced that she will not seek re-election to her House seat in 2018. Tsongas said in a statement, “I have learned in life that there is a time for endings and for new beginnings. After much thought, I have decided that this is one of those times. The time feels right most especially because of my desire to spend more time enjoying and celebrating my wonderful and growing family.” Massachusetts’ 3rd District is expected to be a safe Democratic hold in 2018, as Tsongas has won re-election with margins of at least 20 percent in the past three election cycles.

Trump donor giving $300,000 to challenge Flake in 2018

  • Robert Mercer, CEO of Renaissance Technologies and a top donor to groups supportive of President Trump, is donating $300,000 to KelliPAC, a super PAC that is supporting Kelli Ward in a primary challenge to Sen. Jeff Flake next year. Flake, a Republican from Arizona, declined to endorse Trump in 2016 and has been critical of the president in Trump's first months in office. The Mercer contribution came a day after President Trump endorsed Luther Strange in a Republican U.S. Senate primary in Alabama; the two events together potentially signal a willingness on the part of Trump and his close allies to involve themselves in internal Republican fights as the 2018 U.S. Senate primary season looms. Mercer and his daughter Rebekah were the biggest funders of Make America Number 1, a super PAC that spent $16,117,769 supporting Trump in 2016. They were also instrumental in changes Trump made to his campaign staff last summer, as they suggested that both Kellyanne Conway and Steve Bannon take on leadership roles.

ACLU, PETA, Milo Yiannopoulos file First Amendment lawsuit against D.C. rules on bus and subway ads

  • The American Civil Liberties Union, the People for the Ethical Treatment of Animals, Milo Worldwide LLC, and FemHealth USA, Inc., filed a federal lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) arguing that, in their words, WMATA's 2015 advertising guidelines "sanitize its advertising spaces from messages that might give offense." Milo Worldwide LLC is a limited liability corporation of Milo Yiannopoulos, a former senior editor at Breitbart News. Relying on the U.S. Supreme Court's ruling in Matal v. Tam, in which the court held that "[g]iving offense is a viewpoint," the lawsuit alleges that WMATA violated the groups' First Amendment rights by discriminating against the plaintiffs' viewpoints in refusing to accept advertisements the plaintiffs submitted. Proceedings in the suit will take place in the U.S. District Court for the District of Columbia.

Brooks asks President Trump to reconsider Strange endorsement for Senate

  • Following President Trump’s endorsement of Luther Strange for the U.S. Senate special election in Alabama, Mo Brooks asked Trump to reconsider in a tweet. "I agree completely, Mr. President. McConnell & Strange don't support your agenda. I do. Reconsider endorsement" He also said in a statement, “I respect President Trump, but I am baffled and disappointed Mitch McConnell and the Swamp somehow misled the President into endorsing Luther Strange,” he said in a statement. “Perhaps the President is unaware that Luther Strange corruptly and unethically held a criminal investigation over the head of disgraced Governor Bentley to obtain the senate appointment.” Brooks is one of the top three candidates competing in the primary election, according to public opinion polls.

Moore and Strange lead another poll in U.S. Senate special election race in Alabama

Thursday, August 10

North Korean military finalizes plans for potential attack on Guam

  • North Korea announced that it was finalizing a plan to launch four missiles over Japan towards the U.S. territory of Guam. Expected to be completed within a week, these plans would then be sent to Kim Jong Un for possible approval. Earlier this week, President Donald Trump said that the U.S. would use military action against North Korea if it continued to threaten the United States. "North Korea best not make any more threats to the United States. They will be met with fire and fury like the world has never seen," he said. Secretary of State Rex Tillerson indicated on Wednesday that U.S.-North Korea relations had not significantly changed. He told reporters, "Americans should sleep well at night. Nothing that I have seen and nothing that I know of would indicate that the situation has dramatically changed in the last 24 hours."

Outside spending in U.S. Senate race in Alabama crosses $4 million mark

  • Ten organizations have collectively spent more than $4.4 million on the U.S. Senate special election in Alabama. Approximately 90 percent of that spending came from the Senate Leadership Fund to back incumbent Sen. Luther Strange, with more than $4 million spent on online advertising and radio and television ad buys. By comparison, four organizations spent less than $530,000 on the Senate race in the state in 2016. No groups have spent money on the Democratic primary this year. Voters head to the polls on Tuesday, August 15.

President Trump says he will declare a national emergency over the opioid epidemic

  • President Trump stated that he would be working with officials to develop paperwork declaring that the opioid epidemic is a national emergency. “The opioid crisis is an emergency, and I’m saying officially right now it is an emergency,” Trump stated. Declaring a national emergency was recommended in July by the White House opioids commission, and three states—Florida, Arizona, and Maryland—have declared states of emergency to address the issue. The commission’s report stated that a national emergency declaration “would force Congress to focus on funding and empowering the Executive Branch even further to deal with this loss of life.”
  • President Trump’s statement came two days after a briefing on the opioid crisis delivered by Trump and Health and Human Services Secretary Tom Price. At the briefing, Price said, “The resources that we need, or the focus that we need to bring to bear to the opioid crisis at this point can be addressed without the declaration of an emergency, although all things are on the table for the President.”

EPA to review emission standards

  • The Environmental Protection Agency announced it would consider whether to loosen emission standards for cars, as well as whether to apply new standards to cars produced in 2021. The current plan, passed under the Obama administration, requires an industry-wide fuel economy standard of 54.5 miles per gallon by 2025, and is planned to affect cars between 2022 and 2025. The EPA said it is taking comments regarding the proposed changes, and will decide by April 1, 2018, whether the standards passed by the Obama administration are appropriate. In March 2017, President Trump said he would roll back fuel economy goals finalized by the Obama administration.

Friday, August 11

Curtis holds narrow lead over Herrod in Utah special election

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.

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.

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 12

Federal judge in West Virginia to take senior status, creating vacancy

Tuesday, August 15

Two congressional special elections

Wednesday, August 16

U.S. diplomats in Cuba possibly subject to acoustic attack

  • The U.S. is investigating what caused unexplained hearing loss and other physical problems resembling concussions in several U.S. diplomats who were in Cuba during the fall of 2016. Some of the diplomats ended their tours early and returned to the U.S. for medical care. According to the Associated Press, "U.S. officials concluded that the diplomats had been exposed to an advanced device that operated outside the range of audible sound and had been deployed either inside or outside their residences. It was not immediately clear if the device was a weapon used in a deliberate attack, or had some other purpose." During a press conference, State Department Spokesperson Heather Nauert discussed the matter, saying, "We don’t have any definitive answers about the source or the cause of what we consider to be incidents.” She also said that the U.S. asked two Cuban officials to leave the U.S. Cuba has allowed Federal Bureau of Investigation (FBI) agents on the island to investigate the incidents. The AP noted that investigators were examining whether "the incidents were carried out by a third country such as Russia, possibly operating without the knowledge of Cuba’s formal chain of command."

Where was the president last week?

  • President Donald Trump is on a 17-day working vacation in Bedminster, N.J., at Trump National Golf Club.
  • On Tuesday, Trump held a briefing with Health and Human Services Secretary Tom Price on the opioid crisis.
  • On Thursday, Trump and Vice President Mike Pence received a security briefing on North Korea.

Federal Judiciary

  • 134 judicial vacancies in life-term, Article III judicial positions
  • 32 pending nominations to life-term, Article III judicial positions
  • 20 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.

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