September 29, 2017Issue No. 83

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THE WEEK IN REVIEW

Sunday, September 24

President Trump issues new travel restrictions for nationals of eight countries

President Donald Trump issued a presidential proclamation outlining new travel restrictions for individuals traveling from eight different countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.
According to the proclamation, the restrictions are the result of the national security reviews undertaken by the secretary of homeland security as directed by the March 6 executive order. As part of those reviews, the secretary determined what information is needed from each country to verify the identity of visa applicants and perform evaluations for potential national security threats. Seven of the countries that were included in the restrictions did not adequately supply such information. Somalia was deemed to have "generally satisfie[d] the information-sharing requirements," but was also included in the travel restrictions due to "its government's inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory."
The proclamation placed the following restrictions on the eight countries:
- Chad: Suspension of all immigrant visas and business (B-1), tourist (B-2), and business/tourist (B-1/B-2) nonimmigrant visas
- Iran: Suspension of all immigrant and nonimmigrant visas, with the exception of student (F and M) and exchange visitor (J) visas
- Libya: Suspension of all immigrant visas and business (B-1), tourist (B-2), and business/tourist (B-1/B-2) nonimmigrant visas
- North Korea: Suspension of all immigrant and nonimmigrant visas
- Syria: Suspension of all immigrant and nonimmigrant visas
- Venezuela: Suspension of business (B-1), tourist (B-2), and business/tourist (B-1/B-2) nonimmigrant visas for officials of government agencies of Venezuela involved in screening and vetting procedures
- Yemen: Suspension of all immigrant visas and business (B-1), tourist (B-2), and business/tourist (B-1/B-2) nonimmigrant visas
- Somalia: Suspension of all immigrant visas
The proclamation was issued on the same day that the president's March 6 executive order expired. The March 6 order temporarily suspended entry into the United States for individuals from Syria, Iran, Libya, Somalia, Sudan, and Yemen and suspended refugee admissions to the United States for 120 days. The new restrictions take effect on October 18, 2017.
- Click to read more on the new travel restrictions.

Monday, September 25

Former Trump advisor Roger Stone testifies before House Intelligence Committee

Roger Stone, a former Trump campaign advisor, testified before the House Intelligence Committee as part of the committee's investigations into Russian meddling in the 2016 presidential election. In August 2016, Stone announced that he had been in contact with WikiLeaks founder Julian Assange and promised an “October surprise.” He has also revealed contact with Guccifer 2.0, a hacker name believed to be responsible for hacking and releasing DNC emails last summer. Stone called the testimony “professional,” saying that he only refused to answer who acted as a go-between for his contacts with Assange. After the testimony, Stone added, “I expressed my view that I’m aware of no evidence whatsoever of collusion by the Russian state or anyone in the Trump campaign or anyone associated with Donald Trump.”

Pence and Bannon hold competing rallies for Alabama Senate candidates

Following in President Donald Trump’s footsteps, Vice President Mike Pence went to Alabama to campaign for incumbent Sen. Luther Strange in the Republican primary runoff for his seat against former Alabama Supreme Court Chief Justice Roy Moore. He emphasized Strange’s commitment to the Trump administration’s agenda, including repealing and replacing the Affordable Care Act and building a wall. On the same night, Trump’s former chief strategist, Steve Bannon, was campaigning at a rally for Moore. “Tomorrow is going to decide who has sovereignty in the United State of America. Is it the elites in Washington, D.C. with their money, or is it the people in Alabama with their muscle? … A vote for Judge Roy Moore is a vote for Donald J. Trump,” Bannon said.

Tuesday, September 26

Senate announced they would not vote on Graham-Cassidy healthcare proposal

Sen. Bill Cassidy (R-La.) said that there would not be a vote on the Graham-Cassidy Obamacare replacement plan. He said, "We don't have the votes. We made the decision since we don't have the votes, we're going to postpone it." Republicans Sens. Susan Collins (R-Maine), Rand Paul (R-Ky.), and John McCain (R-Ariz.) all said they would vote against the bill, which would have caused the bill to fail. Graham said that he and Cassidy would continue to push for a vote on the bill after Congress addresses a tax reform package, saying, "We're going to take our show on the road." For a timeline of the GOP’s efforts to repeal and replace the ACA, click here.

Moore defeats incumbent Strange in Alabama Senate Republican primary runoff

Former Alabama Supreme Court Chief Justice Roy Moore defeated incumbent Sen. Luther Strange in the Republican primary runoff for the U.S. Senate seat in Alabama. Although he received an endorsement from President Donald Trump and the majority of the $13.9 million spent on the race by political organizations not affiliated with the campaigns went to support his run—including backing from the Mitch McConnell-aligned Senate Leadership Fund super PAC—Strange was unable to pull ahead of Moore in every public opinion poll released since the August primary. Moore defeated Strange by 9.2 percentage points, making Strange the first incumbent senator to lose a primary since Indiana's Richard Lugar in 2012. Moore moves on to the general election against former U.S. attorney Doug Jones (D) and Arlester (Mac) McBride (I). Although Jones is considered a longshot candidate—a Democrat hasn't represented Alabama in the U.S. Senate since 1997—at least one national Democratic figure has pledged to campaign for him: former Vice President Joe Biden.

Wednesday, September 27

Republican tax framework released

The framework for President Donald Trump's tax plan have been released. President Donald Trump announced the rollout of the plan as part of a speech given in Indianapolis, Indiana. The plan, released by congressional Republicans and the White House, is not complete and leaves various figures and details for the tax-writing committees to work out in Congress, such as what income levels will fall into the proposed tax brackets. The plan called for the following changes in the tax code:
- Reduction of income tax brackets from seven to three, with proposed rates of 12 percent, 25 percent, and 35 percent. The plan proposed allowing for the possibility of a fourth bracket above 35 percent.
- Doubling of standard deduction from $6,000 to $12,000 for single filers ($12,000 to $24,000 for married couples).
- Increase in child tax credit.
- Elimination of state and local tax deductions, among other itemized deductions.
- Elimination of $4,050 personal exemption.
- Repeal of the Alternative Minimum Tax, a tax that typically affects those making between $200,000 and $1,000,000.
- Repeal of the estate tax.
- Reduction of the corporate tax rate from 35 percent to 20 percent.
- Reduction of small business tax from 39.6 percent to 25 percent.
- Changes to taxation of multinational firms. Currently, these firms pay 35 percent on overseas profits brought back to the United States. The framework called for no longer taxing the overseas profits in favor of a tax of the government where the profit was made.
- Addition of a minimum foreign tax on multinational firms.
- Addition of a one-time tax rate for corporate repatriation.

Trump administration limits number of refugees to be admitted to the U.S. to 45,000

The Trump administration notified Congress that it would allow no more than 45,000 refugees into the United States during fiscal year 2018. According to The Hill, it is "the lowest cap ever set for resettlement." Before the announcement, the number of refugee admissions had not been set below 67,000. A Trump administration official said that the number was chosen to make sure that all refugees are properly vetted. The official said, “The safety and the security of the American people is No. 1, and we want to make sure no one is allowed through who would endanger the safety of the American people."

Terrorist groups target Mattis in attack on Kabul airport; Mattis meets with Ghani

Terrorist groups launched an attack on Kabul’s airport meant to target the plane of Secretary of Defense James Mattis, but Mattis and his staff had already left the airport when the attack occurred. Both the Taliban and ISIS claimed responsibility for the attack. Afghan special police forces fought back against the terrorists, and the U.S. conducted an airstrike to support the Afghan forces on the ground. One of the missiles fired malfunctioned and struck several civilians. Mattis was in Kabul to meet with Afghan President Ashraf Ghani and NATO Secretary-General Jens Stoltenberg. Before he knew the details of the attack, Mattis commented on it, saying, “An attack on an international airport anywhere in the world is a criminal act by terrorists. It's designed to go after, generally, innocent people to make some sort of statement, and it's… this is a classic definition of what the Taliban are up to right now. It defines their approach to how they see their role here. And if in fact this is what they have done, they will find the Afghan security forces continuing on the offensive against them in every district of the country right now. So it is what it is, but it's also the reason why we band together and we don't question what we're doing here.”

Thursday, September 28

Trump nominee to Eighth Circuit confirmed by the U.S. Senate

On Thursday, Ralph Erickson, Donald Trump’s nominee to the United States Court of Appeals for the 8th Circuit, was confirmed on a recorded 95-1 vote of the U.S. Senate. Erickson was nominated by President Trump on June 7, 2017, to fill a vacancy created by Judge Kermit Bye’s decision to take senior status in 2015; Bye retired from judicial service in 2016. Erickson, currently a judge on the U.S. District Court for the District of North Dakota, will take his seat on the Eighth Circuit upon receipt of his judicial commission. Among the voting senators, only U.S. Sen. Elizabeth Warren (D-Mass.) voted against confirmation. Erickson is the fourth of Trump’s federal circuit court nominees to be confirmed this year, joining Amul Thapar, John K. Bush, and Kevin Newsom.

Federal judge in Philadelphia elects to take senior status, first of five federal judges to take senior status in the next week

Legrome Davis, a judge on the United States District Court for the Eastern District of Pennsylvania, elected to take senior status on the court. Davis’ decision created the fourth vacancy on the 22-member court which, along with the Northern District of Illinois, has the third largest number of authorized judgeships in the federal judiciary. Davis is the 30th federal district judge to take senior status this year and is the second judge on the Pennsylvania court to take senior status this year, joining Judge James Gardner, who elected to take senior status on April 3, 2017. Gardner later died on April 26, 2017. As an Article III judicial position, Davis’ successor must be nominated by the president, and that nomination is subject to the U.S. Senate's authority to advise and consent on judicial nominees. Since taking office, President Donald Trump (R) has not nominated any federal district judges in states represented by at least one Democratic senator. Pennsylvania is represented in the U.S. Senate by Pat Toomey (R) and Bob Casey(D).

Trump administration temporarily lifts Jones Act to help Puerto Rico recover from Hurricane Maria

The White House announced that President Donald Trump waived the Jones Act for ten days to help Puerto Rico recover from Hurricane Maria. According to NBC News, “The Jones Act, otherwise known as the Merchant Marine Act of 1920, requires goods shipped between American ports to be carried out exclusively by ships built primarily in the United States, and to have U.S. citizens as its owners and crews.” The lifting of the shipping restrictions will help residents of Puerto Rico receive necessary aid. Acting Homeland Security Department Secretary Elaine Duke commented on the waiver, saying, "It is intended to ensure we have enough fuel and commodities to support lifesaving efforts, respond to the storm, and restore critical services and critical infrastructure operations in the wake of these devastating storms.”

White House announces eighth wave of judicial nominees

On Thursday, President Donald Trump announced what the White House described as his eighth wave of judicial nominees. Trump signaled his intention to nominate nine individuals to positions in the federal judiciary. Two of the names on the list, Ryan Holte and Howard Nielson, were formally nominated on Thursday. Once the president announces his intention to nominate someone, the next step is a formal submission of that nomination to the U.S. Senate. The president will indicate, in writing, that he or she nominates a specific individual for a specific judicial position; the nomination cannot simply be to a position on a court. Trump intends to nominate seven individuals to Article III judicial positions in which a confirmed nominee would be commissioned to serve a life term on the court; the other two nominees would be commissioned to 15-year terms on their respective courts (the Court of Appeals for the Armed Forces and the Court of Federal Claims). The list of intended nominees released by the White House included two current judges, Don Willett of the Texas Supreme Court and Kurt Engelhardt of the Eastern District of Louisiana, as well as Gregory Maggs, who clerked for two U.S. Supreme Court justices (Justices Thomas and Kennedy), and Daniel Domenico who, if nominated formally, would be Trump’s first federal district court nominee in a state with at least one Democratic senator. The full list is here:
- Kyle Duncan, nominee to the U.S. Court of Appeals for the Fifth Circuit
- Kurt Engelhardt, nominee to the U.S. Court of Appeals for the Fifth Circuit
- James Ho, nominee to the U.S. Court of Appeals for the Fifth Circuit
- Don Willett, nominee to the U.S. Court of Appeals for the Fifth Circuit
- Gregory Maggs, nominee to the U.S. Court of Appeals for the Armed Forces
- Barry Ashe, nominee to the U.S. District Court for the Eastern District of Louisiana
- Howard Nielson, nominee to the U.S. District Court for the District of Utah
- Daniel Domenico, nominee to the U.S. District Court for the District of Colorado
- Ryan Holte, nominee to the U.S. Court of Federal Claims

Friday, September 29

Federal judge in Indiana takes senior status, creating new Article III vacancy

Joseph Van Bokkelen, a federal judge on the United States District Court for the Northern District of Indiana, elected to take senior status. Van Bokkelen’s decision created the second vacancy on the five-member court. Van Bokkelen’s decision set the court’s status to orange under Ballotpedia’s Federal Vacancy Warning System. An orange status designates the court as having a judicial vacancy percentage between 25-40%. Van Bokkelen was the second judge in as many days to modify his active status on the federal bench and will be the fifth judge to do so over a seven-day period, joining Legrome Davis, Gerald Bruce Lee, Linda Reade, and Grady Jolly.
- For more on federal judicial vacancies, read Ballotpedia’s Federal Vacancy Warning System.

Price resigns as HHS secretary

Tom Price resigned as secretary of health and human services “amid mounting outcry over his use of private jets and military aircraft for government business," according to Politico. A Politico report found that Price "had taken at least 26 charter flights since May to conduct official business in the United States, costing taxpayers more than $400,000. The White House had also approved his use of military aircraft for trips to Africa, Europe and Asia, which cost more than $500,000." In a statement, the White House said, "Secretary of Health and Human Services Thomas Price offered his resignation earlier today and the President accepted."
- Now that Price resigned, what happens next?: Trump will have to nominate someone to serve as secretary of health and human services. Before a presidential Cabinet nominee can be confirmed by the U.S. Senate, he or she must pass several rounds of investigation and review, beginning with the submission of a personal financial disclosure report and a background check. The nominee is then evaluated in a committee hearing, which allows for a close examination of the nominee and his or her views on public policy. Supporters and opponents of the nominee may also testify. Once committee hearings are closed, most committees have a set amount of time before a vote is taken on whether the nominee is reported to the Senate favorably, unfavorably, or without recommendation. The nomination will then go to the Senate floor for consideration. Once the nomination is considered by the Senate, unlimited debate is allowed until two-thirds of the Senate vote to invoke cloture, closing debate. Following a vote of cloture, the Senate conducts a simple majority vote on whether to confirm, reject, or take no action on the nomination. After a nominee is confirmed, he or she is sworn in.

Congress is in session

The Senate will be in session Monday through Friday. The House will be in session Monday through Thursday.

SCOTUS is IN session

The U.S. Supreme Court returns for oral arguments to begin its 2017 term. Under federal law, the court’s term begins on the first Monday in October, which is Monday, October 2, 2017. As of September 30, 2017, the Supreme Court has agreed to hear arguments in 41 cases. It has not yet heard arguments nor issued any opinions. The court is scheduled to hear arguments in eight cases this week. To learn more about the upcoming term, read our overview.

Verbatim Fact Checks

Donald Trump on NFL ratings

During a visit to Alabama on September 22, President Trump claimed that the ratings for National Football League (NFL) games are “down massively,” which he attributed, in part, to players kneeling during the national anthem. Are NFL ratings down massively? Average television ratings for NFL games fell 8.6 percent between the 2014 and 2016 seasons. The average viewership per game also decreased from 20.1 million to 18.9 million. In the two weeks since the start of the 2017 season—and prior to Trump’s comments—average ratings decreased 12.6 percent compared to the first two weeks of the 2016 season, from 10.5 to 9.2. Average viewership decreased from 18.2 million to 16.1 million.

WHAT'S ON TAP NEXT WEEK

Saturday, September 30

Federal judge in Virginia retires from judicial service

Gerald Bruce Lee, a federal judge on the United States District Court for the Eastern District of Virginia, retired from judicial service. Lee’s decision to retire from judicial service will create the only vacancy on the 11-member court. After Lee’s retirement, the court will be equally divided between Republican and Democratic-appointed judges. Lee was appointed to the court by President Bill Clinton (D) in 1998. Lee is the fifth federal judge to retire outright from federal judicial service since Donald Trump’s inauguration and is the sixth federal judge to retire this calendar year. Ballotpedia tracks all judicial nominations, confirmations, and vacancies in its monthly Federal Vacancy Count, which is released the last Wednesday of every month.
- For more, read our September federal vacancy count.

Sunday, October 1

Iowa federal judge elects to take senior status, creating Article III vacancy

Linda Reade, a federal judge on the United States District Court for the Northern District of Iowa, will elect to take senior status effective Sunday, October 1. Reade’s decision will create a vacancy on the two-member district court. The remaining active judge, Judge Leonard Strand, was appointed to the court in 2016 by President Barack Obama (D). Reade served as the district court’s chief judge from 2006 to 2017. Reade is the 33rd federal district judge to change from active judicial status since Donald Trump’s inauguration. By comparison, in 2016, 38 federal district court judges left or changed their active status. Only two federal district court judges have been confirmed this year: David C. Nye and Timothy J. Kelly.

Monday, October 2

U.S. Supreme Court returns for start of its October term

The U.S. Supreme Court will return for the start of its 2017 term, which, under federal law, convenes on the first Monday in October. The court will hear arguments in four cases on Monday, with three cases consolidated for oral argument.
- In the consolidated cases, the court will hear arguments on a similar question: can your employer require you to resolve employment disputes by yourself and not with a group of similarly-situated employees? In each of the cases, an employee sought to bring a class action lawsuit against their employer, but each of the employees was governed by an agreement compelling all work-related wage-and-hour claims to be individually arbitrated. The agreements had explicit language preventing class or collective action against the company in any judicial forum. The question is whether these agreements violate a worker’s right to engage in concerted activities under Section 7 of the National Labor Relations Act. The cases present appeals from three different federal appeals courts, the Fifth Circuit (NLRB v. Murphy Oil), the Seventh Circuit (Epic Systems Corporation v. Lewis), and the Ninth Circuit (Ernst and Young v. Morris).
- The court will also hear arguments in Sessions v. Dimaya, which was also argued during the previous term of the court. The case was first brought by Loretta Lynch in her capacity as U.S. attorney general. Jeff Sessions was named as the party to the case upon his confirmation as Lynch’s successor. The case centers on a question of how violent crimes are defined under immigration law. In 2015, the Supreme Court held in Johnson v. United States that the definition of a violent felony under the Armed Career Criminal Act’s residual clause was unconstitutionally vague. Here, Dimaya, a Filipino national, was convicted of first-degree burglary in California in both 2007 and 2009. The Department of Homeland Security sought to deport Dimaya because, in DHS’ view, the burglaries constituted crimes of violence as defined under a different federal law, 18 U.S.C. § 16. Dimaya argued that 18 U.S.C. § 16’s definition of crime of violence was too close to the unconstitutionally vague definition of violent felony that the Supreme Court struck down in Johnson v. United States. The Ninth Circuit agreed with Dimaya.

Tuesday, October 3

U.S. Supreme Court continues first week of arguments with arguments in two cases on Tuesday

The U.S. Supreme Court continues the first week of its 2017 term with arguments in two cases on Tuesday.
- In Gill v. Whitford, the court will review a decision from a three-judge panel of the United States District Court for the Western District of Wisconsin. In 2011, Wisconsin adopted a plan for state legislative district boundaries, Act 43, under which elections to the Wisconsin state legislature were held during the 2012, 2014, and 2016 election cycles. Beverly Gill, along with 11 other Wisconsin Democrats, filed a lawsuit against members of Wisconsin’s election commission, alleging that the redistricting plan intentionally and systematically diluted the voting strength of Democratic voters statewide in elections to the state legislature, resulting in an unconstitutional partisan gerrymander. A divided three-judge panel of the United States District Court for the Western District of Wisconsin agreed with Gill and invalidated Act 43. The Supreme Court of the United States prevented enforcement of that decision pending arguments before the court on the merits. If the Supreme Court upholds the district court's decision, it will mark the first time that the high court has struck down a redistricting plan on the grounds of illegal partisan gerrymandering. In contrast with racial gerrymandering, on which the Supreme Court has issued rulings in the past affirming that such practices violate federal law, the court has never issued a ruling establishing clear precedent on the question of partisan gerrymandering. In July of this year, Justice Ruth Bader Ginsburg suggested the case was perhaps the most important case the court would hear this term.
  - For more, see our coverage of redistricting in Wisconsin
- In Jennings v. Rodriguez, the court will hear arguments in the case for the second time. The case is one of two cases that was argued during the previous term of the court that will be reargued this term. Federal law provides that noncitizen aliens who are both detained by the federal government on civil, or non-criminal, charges and who are subject to deportation on those charges may still be released on bond if they neither present a flight risk nor a danger to the community. The question in this case is whether bond hearings must be provided under similar circumstances to noncitizen aliens accused of criminal charges. A federal district court and a three-judge panel of the Ninth Circuit held that bond hearings were required every six months for noncitizen aliens both in U.S. custody and subject to deportation, regardless of whether the charges against the accused were criminal or civil in nature. When the case was first argued before the U.S. Supreme Court in November 2016, a Bloomberg report indicated that 41,000 individuals at that time were being held in immigration detention facilities.

E. Grady Jolly, federal appeals court judge, will elect to take senior status

E. Grady Jolly, a judge on the United States Court of Appeals for the 5th Circuit, will elect to take senior status beginning on Tuesday. The Fifth Circuit has jurisdiction over federal courts in Louisiana, Mississippi, and Texas. Jolly’s decision will create the fourth vacancy on the 17-member court. The remaining balance on the court will feature eight Republican-nominated judges and five Democratic-nominated judges. Jolly is the eighth federal appeals court judge to vacate active status this year, which matches the number of federal appeals court judges who did so in 2016.

Wednesday, October 4

U.S. Supreme Court conclude first week of new term with arguments in two cases

The U.S. Supreme Court concludes the first week of its 2017 term with arguments in two cases on Tuesday. Both cases are appeals from the U.S. Court of Appeals for the District of Columbia Circuit.
- In District of Columbia v. Wesby, the court will hear arguments related to standards for probable cause used by police in the District of Columbia. Police officers in Washington, D.C., were directed to a house party at a vacant house in the District. During the investigation, some attendees stated that they had been invited to the house by a woman who claimed to be a legal occupant of the property. That claim was refuted by the lawful homeowner. At a supervisor's direction, the officers arrested the attendees for unlawful entry, a charge that was subsequently changed to disorderly conduct. 16 of those attendees later filed a civil suit against the District and the officers for false arrest and negligent supervision. A federal district court granted judgment in part as to the District's and the officers' liability, ruling in favor of the plaintiffs on the false arrest and negligent supervision charges. A divided three-judge panel of the D.C. Circuit upheld the ruling.
- In Class v. United States, the court will consider whether defendants who plead guilty under federal law waive the opportunity to challenge the constitutionality of that law on appeal. Rodney Class pleaded guilty to a violation of federal law in a Washington, D.C., federal district court. Class later appealed his conviction, arguing that the law under which he pleaded guilty was unconstitutional. A three-judge panel of the D.C. Circuit, citing the court's precedent in United States v. Delgado-Garcia, rejected Class' appeal. Under Delgado-Garcia, with only two exceptions, a defendant who pleaded guilty to violating a federal law is prevented from later raising a challenge to the constitutionality of the law on appeal. Not all federal appeals courts, however, treat post-plea constitutional challenges uniformly.

Where was the president last week?

On Tuesday, President Donald Trump met with members of the House Ways and Means Committee at the White House. He then met with Spanish Prime Minister Mariano Rajoy at the White House.
On Wednesday, Trump traveled to Indiana to speak about the GOP's tax plan.
On Thursday, Trump met with Sens. Bill Cassidy (R-La.) and Lindsey Graham (R-S.C.) at the White House to discuss their healthcare bill.
On Friday, Trump spoke about tax reform to the National Association of Manufacturers in Washington, D.C.

Federal Judiciary

141 judicial vacancies in life-term, Article III judicial positions
48 pending nominations to life-term, Article III judicial positions
18 future vacancies to life-term, Article III judicial positions

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