Overnight Regulation: Appeals court upholds injunction on Trump travel ban | GOP bill would scrap 'micro-unions'

Overnight Regulation: Appeals court upholds injunction on Trump travel ban | GOP bill would scrap 'micro-unions'
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Welcome to Overnight Regulation, your daily run down of news from the federal agencies, Capitol Hill, the courts and beyond. It's Thursday evening here in Washington where everyone is talking about the Montana GOP hopeful who has been charged with attacking a reporter. Find that story here. And check back at TheHill.com for more on the vote tonight for the Montana House seat.



Trump travel ban: A Richmond, Va.-based federal appeals court on Thursday refused to reinstate President Trump's ban on nationals from six majority-Muslim countries from entering the U.S., delivering a major blow to the Trump administration.

The 4th Circuit Court of Appeals said in a 10-3 ruling that Trump's executive order "speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination."

In delivering the opinion of the court, Judge Roger Gregory wrote that Congress granted the president broad power to deny entry to aliens, but that power is not absolute.


"It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation," he wrote.

In addition to being discriminatory, the court found that the order would delay and disrupt pending visa applications.

The court's decision keeps a Maryland court's order blocking the ban in place. 

The government's appeal of that order was heard by the court's full panel of 13 judges.

Though Judge Stephanie Thacker concurred with the court's decision to keep the stay in place, she said she would not have considered the remarks Trump made about banning Muslims while on the campaign trail. Those comments took centerstage during oral arguments earlier this month as the judges grappled with whether they should be considered.

"While on the campaign trail, a non-incumbent presidential candidate has not yet taken the oath to 'preserve, protect and defend the Constitution' and may speak to a host of promises merely to curry favor with the electorate," she said. 

"Once a candidate becomes President, however, the Constitution vests that individual with the awesome power of the executive office while simultaneously imposing constraints on that power."

But Gregory said Trump's order can't be separated from the narrative linking it to the animus that inspired it.

"In light of this, we find that the reasonable observer would likely conclude that EO-2's primary purpose is to exclude persons from the United States on the basis of their religious beliefs," he wrote.

He said the government has repeatedly asked the court to ignore evidence, circumscribe its own review and blindly defer to executive action, all in the name of the Constitution's separation of powers.

"We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review," he wrote. 

"The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution."

In a dissenting opinion which Judges Dennis Shedd and Steven Agee joined, Judge Paul Niemeyer said the lower court "fabricated a new proposition of law -- indeed, a new rule -- that provides for the consideration of campaign statements to recast a later-issued executive order."

Find the full story here


Micro-unions: Republicans are reigniting efforts to scrap a National Labor Relations Board (NLRB) ruling that allows unions to organize employees in so-called micro-unions.

Sen. Johnny IsaksonJohnny IsaksonTrump and Biden tied in Georgia: poll Biden campaign staffs up in Georgia Doug Collins questions Loeffler's trustworthiness in first TV ad MORE (R-Ga.) re-introduced the Representation Fairness Restoration Act this week to reverse the board's 2011 ruling that adopted a new standard for determining appropriate bargaining units.

In the case of allowing a group of certified assistants at a nursing home to form a union, the board found that such unions are appropriate so long as they consist of a clearly identifiable group of employees who share a common interest. 

Isakson's bill, which has 11 GOP co-sponsors including Senate Health, Education, Labor and Pensions Committee Chairman Sen. Lamar AlexanderAndrew (Lamar) Lamar AlexanderChamber of Commerce endorses Ernst for reelection Pelosi huddles with chairmen on surprise billing but deal elusive Senate GOP opens door to smaller coronavirus deal as talks lag MORE (R-Tenn.), would reinstate the long-established standard that unions should represent all workers in a class or craft.

Critics claim the NLRB ruling encourages small groups of employees within a store, restaurant or company to organize, complicating management.

Click here for more.



Keep an eye on these rules in Friday's edition of the Federal Register:

--The Department of Housing and Urban Development (HUD) will propose a new way of measuring "fair market rents." 

The fair market numbers establish rent ceilings for affordable housing complexes, among other things.

The public will have 30 days to comment on the proposal.

--The Federal Motor Carrier Safety Administration (FMCSA) will allow 20 truck drivers who suffer from seizures, but are taking medication to get behind the wheel.

The FMCSA will exempt these drivers from rules that would otherwise prohibit them from driving commercial motor vehicles between states.

The agency has determined these drivers do not present any additional danger to other drivers on the road.

The exemptions are already in effect.

--The Federal Motor Carrier Safety Administration (FMCSA) will also allow more than 140 truck drivers who suffer from poor vision in one eye to hit the road.

In two separate rule makings, the FMCSA will renew the exemptions for 66 truck drivers and 75 truck drivers. Without these exemptions, federal law would prohibit them from operating a commercial motor vehicle between states.

These truck drivers may be considered legally blind in one eye, but can see well enough in the other eye that they can safely operate a commercial motor vehicle, the agency says.

The exemptions are already in effect.

Meanwhile, the FMCSA will consider exempting another 10 truck drivers from the same vision requirement.

The public has 30 days to comment.



Trump is gutting regulations that corporate America hates (Bloomberg) 

Trump administration stands by three Obama-era energy rules

FCC asked to remove fake comments on net neutrality

House votes to roll back pesticide restrictions

TSA testing enhanced screening for carry-on bags

Sanders, Mulvaney clash over Trump budget

Trump budget chief: Medicaid cuts won't affect anyone now on program

Top GOP senators tell Trump to ditch Paris climate deal

Canada proposes methane pollution standards for oil and gas drilling



10: Proposed rules

18: Final rules

(Friday's Federal Register)



"The National Labor Relations Board's decision to allow micro-unions fractures workplaces, and makes it harder and more expensive for employers to manage their workplace," -- Sen. Lamar Alexander (R-Tenn.), said Thursday. Republicans are working to scrap the micro-unions ruling. Click here for more.


(And a final note, this is Tim's last overnight before he heads out to Silicon Valley. We wish him the best.)