Sept. 20, 2018

Senate Holds Brief Legislative Session; House Members Hit the Campaign Trail

With the pivotal midterm elections looming on the not-too-distant horizon, House lawmakers spent the week of September 17 campaigning in their home districts. For their part, Senate leaders convened a truncated session, holding a handful of votes before adjourning for the week on Tuesday, September 18.

On Monday, the Senate overwhelmingly approved legislation designed to combat the nation’s opioid epidemic. Cleared on a 99-1 vote, the Opioid Crisis Response Act would authorize roughly $8 billion for various enforcement, response, and treatment programs under the purview of the Centers for Disease Control, the Department of Health and Human Services, and other key agencies. The bill includes, among other things, enhanced resources and training for first responders, as well as additional tools for local communities to combat opioid abuse.

The House passed a similar opioid package in June. According to congressional leaders, they intend to hammer out a final version of the legislation prior to the November 6 elections.

In other developments this week, the Senate Judiciary Committee delayed its planned confirmation vote on the nomination of Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy on the U.S. Supreme Court. The decision to defer the vote was made amid allegations that Judge Kavanaugh sexually assaulted a high school classmate in the 1980s. While committee action on the nomination has not been officially rescheduled, it is possible that the panel will vote on Kavanaugh’s nomination the week of September 24.

Appropriations Update

Prior to adjourning this week, the Senate voted 93-7 to approve a fiscal year 2019 spending package for the Departments of Defense, Labor, Education, and Health and Human Services (HHS). The House is slated to consider the legislation next week.

It should be noted that the bill includes a continuing resolution (CR) that would fund the rest of the federal government at current levels through December 7 (minus the Departments of Energy and Veterans Affairs, as well as several other agencies, which are expected to receive a full year’s appropriation prior to October 1). While President Trump has not made any definitive statements regarding the CR, he is expected to sign the legislation into law, thus averting the prospect of a pre-election government shutdown.

All told, the Labor-HHS-Education title of the bill would provide approximately $178 billion in discretionary funding, or a $1 billion increase over fiscal year 2018 spending levels. While a number of HHS programs are slated to receive funding increases, the Department of Labor is in line for a cut of over $94 million.

The defense portion of the bill would provide over $674 billion for the nation’s military, including nearly $607 billion in base funding and $68 billion in Overseas Contingency Operations (OCO) funds. It should be noted that OCO account is not subject to discretionary spending caps.  The combined total is nearly $20 billion more than the fiscal year 2018 appropriation.

House Panel Approves “Tax Reform 2.0”

Last week, the House Ways and Means Committee approved a package of bills that GOP leaders characterize as a necessary follow-up to last year’s major tax reform overhaul (PL 115-97).  The first measure – the Protecting Family and Small Business Tax Cuts Act of 2018 (HR 6760) – would permanently lower the tax rates for individuals.  Pursuant to the 2017 tax law, individual tax cuts are set to expire in 2025. In addition, the legislation would permanently extend a number of other individual benefits, including a larger child tax credit and estate tax exemption. HR 6760 also would expand the medical expense deduction for an additional two years.

Of particular interest to California’s counties, the bill would make permanent the $10,000 cap on state and local tax (SALT) deductions.  For their part, Democrats on the panel offered a number of amendments during committee consideration, including one to repeal the SALT deduction cap. However, all of the amendments were defeated along party lines.

Two other bills were considered as part of the renewed reform package.  The Family Savings Act of 2018 (HR 6757) focuses on expanding the use of retirement and education savings accounts. Additionally, the bill would create a new tax-deferred savings account.  The third and final measure – the American Innovation Act (HR 6756) – would allow businesses to write off more of their initial start-up costs.

Despite continued opposition from Democrats, GOP leaders have indicated that all three measures will be considered on the House floor before the month is over. While the package is expected to clear the lower chamber, it is unlikely to be given floor time in the Senate.  With the November elections quickly approaching, these bills are largely being used as a campaign messaging tool meant to highlight the GOP’s signature economic policy achievement.

Congress Inching Closer to Compromise FAA Reauthorization

House and Senate negotiators indicated this week that they are close to reaching agreement on compromise legislation that would provide a long-term reauthorization of the Federal Aviation Administration (FAA).  In fact, transportation committee leaders have indicated that the text of a final bill could be released as early as Friday. With the current FAA authorization set to expire on September 30, the measure is expected to be considered in the both chambers next week.

DOJ Opens FY18 SCAAP Funding Application; Significant Program Changes Announced

This week, the U.S. Department of Justice (DOJ) announced the opening of the fiscal year 2018 application period for the State Criminal Alien Assistance Program (SCAAP). Administrated by DOJ in conjunction with the U.S. Department of Homeland Security, SCAAP provides federal payments to states and local governments that incurred correctional officer salary costs for incarcerating undocumented criminals with at least one felony or two misdemeanor convictions for violations of state or local law.

According to DOJ’s announcement, the Department “plans to add certain immigration-laws-related eligibility requirements to SCAAP, beginning with the FY 2020 application cycle.” DOJ further indicates that because the annual reporting period for the FY 2020 cycle will begin on July 1, 2018, States and units of local government that intend to apply to the FY 2020 program are advised to take note of these program changes now.

Starting with the FY 2020 cycle, DOJ intends to require each applicant government to submit a specific formal certification that encompasses the applicant’s law enforcement agency, corrections agency, and the correctional facility in which the applicant incarcerates inmates. As currently contemplated, that certification – to be executed by the applicant government’s chief legal officer – would need to represent to DOJ, among other things, that:

• the chief legal officer has carefully reviewed certain sections of Title 8 of the United States Code; and
• throughout the pertinent reporting period, neither the jurisdiction nor any entity, agency, or official of the jurisdiction has in effect, purports to have in effect, or is subject to or bound by, any law, rule, policy, or practice that would or does violate or run counter to certain key provisions of federal immigration law (including 8 USC Sec. 1373, which addresses intergovernmental information sharing regarding the citizenship or immigration status of inmates).

Furthermore, and starting with the FY 2020 cycle, DOJ intends to require each applicant to submit a specific formal certification representing to the Department that the application seeks payment with respect to the incarceration of no eligible inmates other than those about whom, respectively, the applicant government notified DHS of:

(a) the name,

(b) the release date (updated, as appropriate, from time to time), and

© the home and work addresses, before the later of 1) The end of the fourth consecutive day of the inmate’s incarceration; or 2) October 1, 2018.

Given recent changes in state immigration laws, counties are encouraged to carefully review DOJ’s FY 2018 Program Requirements and Application Instructions, found here.

Applications for this year’s SCAAP funding cycle are due on October 29.

WRDA Reauthorization

The leaders of the House Transportation & Infrastructure Committee and the Senate Environment & Public Works Committee recently announced that they arrived at a bipartisan deal to reauthorize the Water Resources Development Act (WRDA). The House subsequently approved the final legislative text, with the Senate expected to clear the measure next week.

Among other things, the legislation would direct the U.S. Army Corps of Engineers to engage with non-federal stakeholders when finalizing implementation guidance for water resources development laws.  The bill also would allow non-federal interests to contribute funds to advance water resources projects through the feasibility process and includes provisions designed to accelerate project construction. In addition, the legislation directs the Corps to allow local communities to participate in feasibility studies to help advance the goals of local or regional water management plans.

The bill also would reauthorize the Environmental Protection Agency’s Water Infrastructure Finance and Innovation Act (WIFIA) program, and would allow the Corps and other federal agencies with federal credit instruments to enter into an agreement with EPA to service loans for their respective programs.