January 11, 2018

Fresh off a victory on tax reform, GOP leaders entered 2018 eager to begin work on their party’s other priorities, including an infrastructure package and entitlement reform.  Congressional leaders instead returned to the nation’s capital facing a number of looming deadlines and unresolved issues leftover from the previous year.  The first and most daunting obstacle they need to overcome is the fiscal year 2018 budget.  With the most recent stopgap funding measure set to expire on January 19, Congress will need to act before then to avoid a partial government shutdown.

Over the past several weeks, House and Senate negotiators have worked to strike a year-end budget deal that would accomplish two key objectives: (1) raise the Budget Control Act’s (BCA) limits on discretionary spending, and; (2) fund the government through the end of the current fiscal year.  However, a deal has thus far proven elusive.

While both parties recognize the need to lift the current budget caps, negotiations have stalled over disputes about the size of the increase and how to distribute the funding between defense and non-defense programs.  For their part, Republicans want to increase defense spending by $54 billion in each of the next two fiscal years, while providing non-defense programs with $37 billion.  Democrats, on the other hand, have proposed increasing spending by $108 billion, equally split between defense and non-defense discretionary funding. 

The spending debate may have became even more challenging after Attorney General Jeff Sessions last week announced that he will rescind an Obama administration policy, often referred to as the Cole memo, regarding federal cannabis enforcement.  The new Sessions memo will instead allow federal prosecutors to decide how aggressively to enforce federal law.  In response, a number of lawmakers – including House Minority Leader Nancy Pelosi (D-CA) – are demanding that a potential spending agreement include additional protections for states where cannabis is legal or in areas where possession has been decriminalized. 

It should be noted that Congress has previously approved policy riders – sponsored by Representatives Dana Rohrabacher (R-CA) and Earl Blumenauer (D-OR) – barring the Department of Justice from using federal resources to prosecute individuals and businesses who comply with state-legal medical marijuana laws.  Like the CR, the Rohrabacher-Blumenauer spending rider expires on January 19.  Its pending termination likely creates a natural trigger point that may force Congress to act in the coming weeks.

However, even if congressional leaders are able to reach a budget deal before the January deadline, it is unlikely there will be sufficient time to craft a detailed spending plan for the remainder of the fiscal year.  This lack of progress makes it increasingly likely that Congress will be forced to approve a fourth short-term funding measure.

House Republicans Unveil Major Immigration Package

In other developments, roughly two dozen bipartisan members of the House and Senate visited the White House this week to meet with President Trump to discuss immigration reform.  While Republicans and Democrats alike emerged from the meeting claiming that significant progress had been made, it remains unclear if the discussion – and subsequent negotiations – will ultimately yield a legislative agreement on what has been one of the most highly contentious issues in Congress in recent years.

For their part, congressional Democrats are continuing to aggressively push for a permanent legislative solution for Deferred Action for Childhood Arrivals (DACA) recipients.  In the wake of President Trump’s recent decision to rescind the program beginning March 5, Democrats have been urging passage of a statutory framework that would extend legal protections for children of undocumented individuals who arrived in the United States before age 16.

Congressional Republicans, along with the White House, have signaled their willingness to find a legislative fix for DACA recipients.  At the same time, President Trump has continued to insist that Congress provide funding for a wall along the U.S.-Mexico border as part of any immigration deal.  Incidentally, funding for the wall has been a nonstarter for Democrats, which suggests that the recent sense of optimism expressed by members of both parties may be short-lived.

On a related matter, a group of key House Republicans on Wednesday unveiled a major immigration package that would, among other things, allow DACA beneficiaries to receive a three-year renewable legal status.  The legislation (HR 4760) also includes a number of border-security measures, including authorization for the construction of a border wall.  Additionally, the bill calls for investments in new border security technology, and would authorize funds for modernizing and expanding border ports of entry.

The legislation also includes language designed to crack down on so-called sanctuary jurisdictions.  Specifically, the bill would seek to compel states and localities to carry out federal immigration enforcement activities by withholding federal funding from noncompliant jurisdictions.  Under the measure, such jurisdictions would be ineligible to receive funding from the following federal grant programs: SCAAP; COPS; Byrne/JAG; and, “any other grant administered by the Department of Justice or Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization.”

HR 4760 also includes language that would “clarify” ICE detainer authority.  Under the bill, the secretary of DHS would be authorized to issue a detainer to state/local law enforcement if the secretary has probable cause to believe the individual in question is an inadmissible or deportable alien.  The legislation also would protect jurisdictions that comply with ICE detainers from the threat of lawsuits.  Federal courts have ruled that detainers – which are civil holds and not criminal warrants – violate the Fourth Amendment and thereby open local governments to civil liability.

While HR 4760 may be able to pass the Republican-controlled House, it would likely not advance in the Senate, as 60 votes would be needed to break a Democratic filibuster.

Interior Department Proposes to Expand Offshore Drilling

The Trump administration recently announced its intention to greatly expand the areas available for offshore oil and natural gas drilling.  Specifically, the Interior Department is proposing to auction off drilling rights in more than 90 percent of the Outer Continental Shelf, including Pacific waters along the California coast.  The Draft Proposed Program (DPP), which represents the initial step in assembling a new five-year schedule for selling offshore leases, includes seven potential lease sales in the Pacific Region.  Among the seven potential lease sales, two are proposed for Northern California, two for Central California, and two for Southern California.

In conjunction with the announcement of the DPP, Interior is also publishing a Notice of Intent (NOI) to prepare a Draft Programmatic Environmental Impact Statement (EIS), a step that is required by the National Environmental Policy Act (NEPA).  Once the DPP and NOI are published in the Federal Register, it will start the clock on a 60-day public comment period. It should be noted that Interior Secretary Ryan Zinke has acknowledged that the DPP could be narrowed in response to feedback from the public.  In fact, the plan has already been scaled back to exempt the waters off Florida’s Gulf coast, although this decision may have been politically motivated.