Biden selects defense, health nominees for his administration

• President-elect Joe Biden (D) announced retired Gen. Lloyd Austin III as his nominee for secretary of defense on Dec. 9. Biden also wrote an op-ed in The Atlantic about his selection.
  • Austin began his military service in 1975 as an infantry second lieutenant and advanced to a four-star general. He was involved in several major operations, including Iraqi Freedom, Enduring Freedom, and New Dawn. He served as commander of the U.S. Central Command from 2013 to 2016, where he led the campaign against the Islamic State.
  • If nominated, Austin would require a congressional waiver to serve as secretary of defense. Federal law prohibits a commissioned officer from filling this position if he or she is appointed within seven years of active duty.
  • If confirmed, Austin will be the first Black secretary of defense in U.S. history. 
• Biden also announced several key health and COVID-19-related positions on Dec. 7:
  • Xavier Becerra, secretary of health and human services: Becerra is the attorney general of California. He served in the U.S. House of Representatives for 12 terms, where he was a member of the Committee on Ways and Means, ranking member of the Subcommittee on Social Security, and chairman of the House Democratic Caucus.
  • Vivek Murthy, U.S. surgeon general: Murthy previously served as U.S. surgeon general during the Obama administration from 2014 to 2017 after being confirmed 51-43 by the U.S. Senate. He is a physician and former vice admiral in the Public Health Service Commissioned Corps.
  • Rochelle Walensky, director of the Centers for Disease Control and Prevention: Walensky is the chief of the Division of Infectious Diseases at Massachusetts General Hospital and a professor of medicine at Harvard Medical School, where her research has focused on HIV/AIDS.
  • Marcella Nunez-Smith, chairwoman of the COVID-19 Equity Task Force
  • Anthony Fauci, chief medical adviser on COVID-19 and director of the National Institute of Allergy and Infectious Diseases
  • Jeff Zients, coordinator of the COVID-19 response and counselor to the president
  • Natalie Quillian, deputy coordinator of the COVID-19 response

Supreme Court releases opinions on judicial selection, preemption, statute of limitations

The U.S. Supreme Court released four opinions for cases heard during the 2020-2021 term on Dec. 10. Including three opinions in cases decided without argument, the court has issued seven total opinions this term. Justice Amy Coney Barrett took no part in the following cases, which were argued before she joined the court.

• FNU Tanzin v. Tanvir concerned whether the Religious Freedom Restoration Act's provision allowing individuals to "obtain appropriate relief against a government" includes money damages against federal employees sued in their individual capacities. In an 8-0 opinion, the court held that it does. Justice Clarence Thomas delivered the opinion. 
• Carney v. Adams concerned whether the respondent, lawyer James Adams, had the legal right (or standing) to sue the governor of Delaware. Adams had claimed a provision of Article IV, Section 3 of the Delaware Constitution was unconstitutional. In an 8-0 opinion, the court held Adams did not have standing. Justice Stephen Breyer delivered the opinion, and Justice Sonia Sotomayor filed a concurring opinion.
• Rutledge v. Pharmaceutical Care Management Association concerned whether the U.S. Court of Appeals for the 8th Circuit erred in its ruling that Arkansas’ state law regulating the drug-reimbursement rates of pharmacy benefit managers is preempted, or displaced in authority, by the Employee Retirement Income Security Act of 1974 (ERISA), in violation of the Supreme Court’s precedent that ERISA does not preempt rate regulation. In a unanimous decision, the court held that Arkansas’ state law is not preempted by ERISA. Justice Sotomayor delivered the opinion.
• United States v. Briggs concerned whether the U.S. Court of Appeals for the Armed Forces was in error in holding that the Uniform Code of Military Justice (UCMJ) allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years. In an 8-0 ruling, the court held that the respondents' prosecutions for rape were timely under the UCMJ. Justice Samuel Alito delivered the opinion of the court.

Republican declared winner in California’s 25th District, one U.S. House race remains too close to call

• Since our last update on Dec. 5, one more U.S. House race was called. One election remains too close to call, and the results of a second will be challenged before the U.S. House Administration Committee.
• Incumbent Mike Garcia (R) defeated challenger Christy Smith (D) to win a full term in California’s 25th Congressional District. Garcia defeated Smith by a margin of 333 votes out of more than 330,000 cast. Garcia was elected to represent the district in May, filling the vacancy opened by Katie Hill’s (D) resignation last year. He also faced Smith in that election, defeating her 56%-44%.
• The only election that remains too close to call is in New York’s 22nd Congressional District. Incumbent Anthony Brindisi (D) faced three challengers, including former Rep. Claudia Tenney (R), whom Brindisi defeated in 2018. The two campaigns have been involved in a legal dispute before the Oswego County Supreme Court over ballot-counting procedures since Nov. 4.

Biden selects Vilsack for secretary of agriculture, Fudge for housing and urban development

• President-elect Joe Biden (D) announced five top domestic administration appointments on Dec. 10— Susan Rice for director of the White House Domestic Policy Council and four Cabinet-level positions.
  • Tom Vilsack, secretary of agriculture: Vilsack previously served as secretary of agriculture during the Obama administration for eight years. He was confirmed by unanimous consent in the U.S. Senate in 2009. Vilsack was also the chairman of the White House Rural Council and the 40th governor of Iowa.
  • Marcia Fudge, secretary of housing and urban development: Fudge has served in Congress since 2008. She is a former chairwoman of the Congressional Black Caucus and has served on the committees for house administration, agriculture, and education and labor. Fudge’s district, Ohio's 11th, is rated Safe Democratic. House vacancies are filled by special elections.
  • Denis McDonough, secretary of veterans affairs: McDonough held several roles in the Obama White House, including as chief of staff from 2013 to 2017 and principal deputy national security advisor from 2010 to 2013. He worked in the U.S. House of Representatives in policy and leadership positions, including as a professional staff member on the International Relations Committee. If confirmed, he would be the second non-veteran in this office.
  • Katherine Tai, U.S. trade representative: Tai is the chief trade counsel to the chairman and Democratic members of the House Committee on Ways and Means. She served as associate general counsel and chief counsel for China trade enforcement at the Office of the United States Trade Representative. She previously practiced law in Washington, D.C., with a focus on international trade issues.

Supreme Court declines to block certification of Pennsylvania’s election results

• The U.S. Supreme Court declined on Dec. 8 to intervene and block certification of Pennsylvania's election results. The court announced its decision in an unsigned order. There was no noted dissent. 
  • Background: On Nov. 21, a group of state Republican officials, candidates, and voters filed suit in the Pennsylvania Commonwealth Court, alleging the state law allowing all voters to cast their ballots by mail was unconstitutional. The plaintiffs asked the court either to order election officials "to certify the results of the election based solely on the legal votes" or to direct "that the Pennsylvania General Assembly choose Pennsylvania's [presidential] electors."
• On Nov. 25, Judge Patricia McCullough ordered election officials to temporarily halt "any further action to perfect the certification of the results of the 2020 general election ... for the offices of President and Vice President," pending an evidentiary hearing.
• State officials appealed McCullough's order to the state supreme court. On Nov. 28, the state supreme court unanimously ruled to vacate McCullough's order and dismiss the case with prejudice.

U.S. Senate confirms Schwartz to U.S. Court of Federal Claims

• The U.S. Senate confirmed Stephen Schwartz to the U.S. Court of Federal Claims on Dec. 8. The Court of Federal Claims is an Article I tribunal—a federal court organized under Article I of the U.S. Constitution.
• President Donald Trump (R) nominated Schwartz to the court on June 7, 2017. The U.S. Senate confirmed Schwartz on a 49-47 vote.
• After Schwartz receives his judicial commission and takes his judicial oath, the court will have three judges appointed by President Barack Obama (D), seven judges appointed by President Trump, and six vacancies.

Supreme Court hears five hours of oral argument

The Supreme Court heard five hours of arguments this week via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19.

• Dec. 7
  • Republic of Hungary v. Simon concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act. The expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving "property taken in violation of international law." International comity means that U.S. courts defer to another nation's laws when legal action is brought under those laws.
  • Federal Republic of Germany v. Philipp also concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act.
• Dec. 8
  • Facebook v. Duguid concerns the definition of an automated telephone dialing system in the Telephone Consumer Protection Act.
  • Henry Schein Inc. v. Archer and White Sales Inc. concerns arbitration agreements.
• Dec. 9 
  • Collins v. Mnuchin, consolidated with Mnuchin v. Collins, concerns the extent of the president’s appointment and removal powers and control of independent federal agencies.

Republican and Democratic national party committees raised $467 million between Oct. 15 and Nov. 23

• Six national party committees raised a combined $467 million between Oct. 15 and Nov. 23 this year, according to post-general election campaign finance reports filed with the Federal Election Commission. One more campaign finance report is due this cycle, covering fundraising and spending through Dec. 31.
• Democrats and Republicans each have three party committees; a national committee to coordinate overall party objectives and one committee each dedicated to electing members to the Senate and House. The latter two are referred to as Hill committees. During the 2018 campaign cycle, the six committees spent a combined $1.3 billion. So far in the 2020 cycle, they have spent a combined $2.37 billion out of $2.49 billion in fundraising.

U.S. Senate confirms three to Federal Election Commission

• The U.S. Senate confirmed three new members of the Federal Election Commission (FEC) on Dec. 9, filling the remaining vacancies on the six-member commission. The new commissioners are Shana Broussard (D), Allen Dickerson (R), and Sean Cooksey (R). They join current commissioners James "Trey" Trainor (R), Steven T. Walther (I), and Ellen L. Weintraub (D). Trainor chairs the commission, and Walther is vice chair.
• The Senate confirmed Broussard 92 to 4, Dickerson 49 to 47, and Cooksey 50 to 46. All Republican Senators who voted were in favor of Dickerson’s and Cooksey’s nominations, and all Democratic Senators—as well as Sen. Bernie Sanders (Vt.-I)—voted against. Sen. Angus King (Maine-I) voted in favor of Cooksey’s nomination and against Dickerson’s.