July 14, 2016

Capitol Hill was bustling with activity this week as lawmakers looked to tie up a number of loose ends in advance of an extended summer recess.  With the Republican and Democratic national conventions scheduled to convene the week of July 18th and 25th, respectively, members of Congress were aiming to wrap up legislative business by the weekend.  The House and Senate are not scheduled to be back in session until after Labor Day.

Faced with a July 15th deadline to pass legislation extending operational authority for the Federal Aviation Administration (FAA), both the House and Senate cleared this week a new short-term continuation of current aviation law.  The latest extension (H Res 818), which became necessary after Congress failed to approve a new long-term aviation reauthorization bill, would continue FAA programs through September of 2017.  The White House has signaled that President Obama will sign the measure before Friday’s deadline.

While H Res 818 is largely a “clean extension” of existing authority, the legislation contains several policy reforms, including provisions that would streamline the air traffic control hiring process and language that would tighten airport security in the wake of recent international terror attacks.  As expected, the extension does not include a controversial proposal to privatize the nation’s air traffic control system.

In addition to considering the FAA measure, lawmakers in the House spent time this week debating portions of the fiscal year 2017 budget.  On the docket was legislation (HR 5538) that provides funds for the Department of the Interior, the Environmental Protection Agency (EPA), and other agencies.  The Interior measure has, in recent years, been a lightning rod for controversy as GOP lawmakers have used the spending bill – with varying degrees of success – as a vehicle to thwart the Obama administration’s environmental agenda.

This year’s House measure includes more than 20 policy riders, including provisions that would block a number of regulations promulgated by the EPA.  Incidentally, the White House has threatened to veto the House legislation due, in part, to opposition to several of the environmental riders.

In other developments, the House Appropriations Committee began consideration this week of a draft fiscal year 2017 Labor-Health and Human Services (HHS) Appropriations measure.  The spending bill for HHS, like the Interior legislation, is typically one of the more contentious funding bills in Congress.

True to form, Wednesday’s committee markup of the Labor-HHS package saw its share of partisan bickering as lawmakers spent considerable time debating the merits of several gun-control measures.  Upset about not getting a full House vote on gun-control legislation, Democrats pushed amendments that would strip from the bill longstanding language that prevents the Centers for Disease Control from researching gun violence as a disease.

Lawmakers also fought over a number of other issues, including the topline spending level for the bill, provisions that would eliminate funding for existing Affordable Care Act programs, and language that would block certain Labor Department regulations.

Child Welfare Financing Reform

As the Legislative Bulletin went to press, California’s counties and the State Department of Social Services were working cooperatively in an effort to prevent the Family First Prevention Services Act (S 3065/HR 5456) from reaching the floor of the Senate.  Pursuant to concerns that the bill, as currently drafted, would harm the state’s most vulnerable children, CSAC, CWDA, and the State are urging Senators Dianne Feinstein (D-CA) and Barbara Boxer (D-CA) to block consideration of the measure until such time that it can be modified to address California’s concerns.  At the time of this writing, a legislative hold had been placed on the bill, preventing the measure from advancing.

For their part, Senate Finance Committee leadership on both sides of the aisle are currently unwilling to accept any amendments to S 3065.  They argue that this year’s truncated legislative calendar will not allow modifications because of the time involved in obtaining new cost estimates from the Congressional Budget Office and the uncertainty of whether the House would even consider an amended bill (the lower chamber approved its version of the child welfare legislation on June 21).  Instead, the Finance Committee staff has committed to work in future years to address California’s numerous concerns.

The Family First Prevention Services Act has been on a legislative fast track since mid-June.  The bill was adopted by the House without an opportunity to amend it within two weeks of introduction, with the Senate looking to follow suit shortly thereafter.  However, serious concerns raised by stakeholders in California and New York has slowed the bill’s advancement in the upper chamber.

While California and New York have offered joint legislative language maintaining the spirit and intent of the bill, the Senate Finance Committee has rejected the proposed revisions.  In response, the committee is offering to urge the U.S. Department of Health and Human Services to provide administrative flexibility when drafting guidance and rules implementing the bill.  The committee staff also has also indicated that, if federal funds are identified in the future, such funding could be used to address the provisions that contradict some of California’s innovative programs to serve at-risk children.

It should be noted that the current bill will likely make it more difficult and expensive for California and its counties to implement the Continuum of Care Reform law (AB 403). Moreover, some children under the state’s CCR program would not be eligible under the new federal provisions, which were portrayed originally as being modeled after the state’s landmark efforts.  Additionally, the bill’s federal entitlement for a limited set of prevention services to keep children from entering foster care in the first place runs counter to counties’ efforts to place children in kinship arrangements until their family of origin is more stable.  Under the legislation, if a child does not return to the home of his/her parents within six months, he/she loses eligibility for federal foster care assistance if such a placement is necessary in the future.  Members on both sides of the aisle recognize that the bill has an unintended consequence of denying federal support in the future if a child needs foster care.

Senate leaders are continuing to exert a tremendous amount of pressure aimed at securing passage of the bill – without amendments – prior to the summer recess.  If the legislation does not pass within the next 24 hours, Senate Finance Committee leaders argue that the bill will die.

DOJ Cuts Off Funds to Certain Sanctuary Cities
Broader Sanctuary Bill Fails to Advance in Senate

The U.S. Department of Justice (DOJ) released on July 7 Guidance that prohibits certain jurisdictions from receiving two types of DOJ grant funds.  Pursuant to the Guidance – which was released by DOJ’s Office of Justice Programs (OJP) – state and local governments that have policies or practices that in any way prohibit or restrict government officials from sending to, or receiving from, federal immigration officers information concerning an individuals’ citizenship or immigration status are ineligible to receive State Criminal Alien Assistance Program (SCAAP) and Edward Byrne Memorial Justice Assistance Grant (JAG) funds.  Although the information-sharing requirement (found at 8 USC § 1373) has been on the books since 1996, it has never been fully enforced by the federal government.

DOJ’s administrative action was taken at the urging of several members of Congress, including Representative John Culberson (R-TX), who pressed the Department to cut off grant dollars to jurisdictions that do not comply with the 1996 law.  The effort to strip federal funds from so-called “sanctuary jurisdictions” has gained widespread attention in recent months as the issue has been debated in Congress and raised in several high-profile congressional races.

It should be noted that while Section 1373 does not impose on jurisdictions an affirmative obligation to collect information from individuals regarding their immigration status, it does forbid State and local agencies from restricting the maintenance or intergovernmental exchange of such information.  In California, as well as other states, certain localities have in place policies and/or practices that will likely disqualify them from receiving SCAAP and JAG funding in light of DOJ’s new Guidance.

It should be further noted that compliance with the requirements of California’s TRUST Act (AB 4) does not appear to automatically put counties in noncompliance with Section 1373.  Nevertheless, pursuant to DOJ’s new Guidance, counties are urged to review their own immigration policies and practices to determine their eligibility to receive federal SCAAP/JAG funding.

In related legislative action, the Senate on July 6 rejected a measure – the Stop Dangerous Sanctuary Cities Act (S 3100) – that would bar sanctuary jurisdictions from receiving federal Community Development Block Grant (CDBG) and Economic Development Assistance (EDA) program funding.  As anticipated, the legislation was ultimately blocked from consideration, as Republican leaders were unable to secure the 60 votes needed to invoke cloture.

It should be noted that S 3100 includes a broadened, two-part definition of “sanctuary jurisdiction.”  While language similar to what is codified at 8 USC § 1373 is included in the bill, S 3100 also defines as a sanctuary jurisdiction any State or locality that has in effect a policy or practice that prohibits or restricts any government entity or official from complying with a detainer issued by U.S. Immigration and Customs Enforcement (ICE).

Senate Set to Conference with House on Energy Policy Bill

On July 12, the Senate agreed to go to conference with the House on a wide-ranging energy policy measure (S 2012).  The upper chamber cleared its version of the bill in April with broad, bipartisan support.  The House, on the other hand, approved a competing energy package that included the text of more than three-dozen separate pieces of legislation opposed by Democrats.  It should be noted that the majority of the controversial bills have drawn veto threats from the Obama administration. 

Of particular interest to California, the House-passed energy bill includes a provision that would allow additional water to be pumped from the Sacramento-San Joaquin Delta to the Central Valley.  The language – which largely tracks drought-relief legislation that passed the lower chamber in 2015 (HR 2898, Representative David Valadao (R-CA)) – would require the Interior Department to increase Delta water exports under certain conditions.  In addition, the bill includes the text of divisive forestry legislation – the Resilient Federal Forests Act (HR 2647) – which aims to increase timber production on National Forest System land.

For their part, Senate Democrats refused to enter into formal conference negotiations until they were given assurances that the most contentious provisions would be dropped from the final product.  After weeks of informal talks, both sides recently agreed to drop the most objectionable measures and work toward a compromise package.  Looking ahead, if House and Senate negotiators are able to reconcile the differences between the two competing bills, the final conference report will still need to pass both chambers of Congress and be signed into law by President Obama.