The Final Push Before the Recess

DARRYL NIRENBERG
Partner
JASON ABEL
Of Counsel
EVA RIGAMONTI
Associate
Steptoe & Johnson LLP

 

Appropriations

Earlier this year, Senate Majority Leader Mitch McConnell (R-Ky.) and Speaker of the House Paul Ryan (R-Wis.) expressed their intent to pass all 12 appropriations bills — legislation that funds the individual government agencies and their programs — before the end of the fiscal year (September 30). That is increasingly unlikely to occur, however, as negotiations have stalled due to a number of factors, including recent tragic events.

In the wake of the mass shooting in Orlando, a group of House Democrats staged a “sit-in” on the floor of the chamber in an attempt to force the Republican leadership to hold a vote on gun control legislation. After 15 hours, Speaker Ryan announced that the House would not consider any firearms legislation and would instead adjourn for the scheduled July 4 recess. After the House returned from the holiday break, Speaker Ryan reaffirmed his decision not to bring up any such bills, delaying any possible action on the matter until members return in September from the seven-week-long congressional recess.

Appropriations legislation has also been delayed in the Senate over gun control concerns. The Commerce, Justice, and Science spending bill — which funds the Department of Justice (DOJ), among other agencies — was set to be voted on in June, but Senate Democrats prevented consideration of the bill with demands that the chamber first consider gun control legislation.

The Majority Leader eventually scheduled votes on June 20 for four such measures, including measures to prevent persons on the terror watch list from purchasing guns. All of these failed to pass. Three days later, on June 23, the Senate considered a bill offered by Senator Susan Collins (R-Maine) to allow the DOJ to prohibit people on the federal “no-fly” list and so-called “selectee” list from buying a firearm. Although the bill did not pass, it did receive enough votes under the Senate’s procedural rules to permit it to be brought up again for a vote at any time.

Given all of these detours, it is likely that Congress will be not able to pass all 12 spending bills, and instead will have to craft a short-term funding bill before government funding expires on September 30 in order to avert a government shutdown, after which it will probably fold any spending bill not already passed into an omnibus appropriations bill.

Legislation

Despite the impasse on appropriations, there was progress made regarding the heroin and opioid abuse epidemic in the weeks before Congress left for its long summer recess. On July 6, the House and Senate Conference Committee, tasked with resolving the differences between the two chambers’ versions of the Comprehensive Addiction and Recovery Act (CARA), produced a reconciled measure that, among other things, establishes federal grant programs to help states train first responders to treat opioid overdose victims, creates a task force on pain management, expands drug take-back programs and increases access to medication-assisted treatments. The Conference Report passed the House two days later on an overwhelming 407–5 vote. On July 13, the Senate followed suit when it voted 92–2 to pass the measure. After passage, the White House indicated that the President was fully prepared to sign the bill into law, even though the Administration retains serious concerns that the bill does not include sufficient funding to carry out its ambitious initiatives.

In other law enforcement news, the House of Representatives rejected on a 158–229 vote the Kelsey Smith Act (H.R. 4167), which would have required wireless carriers to provide customers’ location information to law enforcement in emergency situations. Democrats largely objected to the bill, citing privacy concerns.

Presidential Conventions

At the time this article went to print, both parties were about to hold their national conventions and formally nominate their candidates for president and vice president. The Republicans were slated to convene in Cleveland July 18–21, and the Democrats in Philadelphia July 25–28. For many decades, the national conventions have served as a forum for the parties to select their presidential and vice presidential nominees, but in recent years they have grown into massive media events designed to showcase and “sell” a party’s candidate to the electorate.

Both Hillary Clinton (D) and Donald Trump (R) have earned a vast majority of delegates over their primary challengers heading into the conventions. Roughly 4,000 Democratic delegates and 2,500 Republican delegates from the 50 states and the U.S. territories will participate in the conventions to vote for their party’s presidential and vice presidential nominees. The delegates will also vote on their party’s proposed policy platform, a document outlining the party’s general policies and principles. The nominees are not obligated to use the platform as a basis for their presidential run or even endorse it.

As expected, Trump named Indiana Governor Mike Pence as his vice presidential running mate a few days before the convention. Pence served in the U.S. House of Representatives from 2001 to 2013, where he rose through the ranks to become chairman of the House Republican Conference. Many political experts view Pence as a stabilizing force on the Trump ticket — one who would add conservative credibility on a range of policy issues. Others rumored to be on the top of Trump’s potential VP list included former House Speaker Newt Gingrich, Connecticut Governor Chris Christie, and first-term Arkansas Senator and Iraq War veteran Tom Cotton.

Democratic nominee Hillary Clinton is expected to select her running mate after Trump but before her party’s national convention in Philadelphia. Among the frontrunners to be her VP are Virginia Senator Tim Kaine, Department of Labor Secretary Thomas Perez and Housing Secretary Julian Castro. Notably, all three are fluent Spanish speakers who many believe could garner strong support from the Hispanic community.

Supreme Court Update

Voisine v. United States: In a 6–2 decision announced on June 27, the Supreme Court held that a person convicted of domestic assault can be prohibited from possessing firearms. The case stems from two incidents in Maine where, in each instance, a man convicted of misdemeanor domestic assault was later found to be in possession of a firearm and consequently prosecuted under 18 U.S.C. §922(g), a federal law prohibiting individuals convicted of misdemeanor domestic assault from possessing firearms.

The petitioners, Stephen Voisine and William Armstrong, argued that their state convictions did not qualify as misdemeanor domestic assault because the Maine law could have been violated by merely reckless conduct, rather than knowing or intentional conduct. At a prior appeal before the First Circuit, the court ruled that a reckless assault could qualify under federal law and thus disqualify the plaintiffs from owning a firearm. The Supreme Court agreed with the lower court’s ruling, finding that “recklessness” in a domestic violence case is far from unintentional — and therefore would qualify as a misdemeanor crime of domestic violence under federal law.

Taylor v. United States: On June 20, the Supreme Court ruled in a 7–1 decision that it was proper for the federal government to prosecute a defendant charged with robbery under the Hobbs Act, which applies to robberies and extortion cases where the defendant’s conduct “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” In other words, if a defendant commits a robbery that can be found to have affected “interstate commerce” — a very broad standard — he or she can be prosecuted under the Hobbs Act.

The defendant in this case, David Taylor, was charged with carrying out two Virginia home invasions where he intentionally tried to rob drug dealers, because those individuals tend to avoid reporting crimes to law enforcement. Taylor argued that because the houses he robbed belonged to drug dealers selling locally grown marijuana within state lines, the interstate commerce clause could not apply. The Supreme Court disagreed, finding that proof that the defendant robbed or attempted to rob a drug dealer of drugs or proceeds is enough to prove that the crime affected interstate commerce. By targeting a drug dealer in this way, said the court, a robber necessarily affects or attempts to affect commerce over which the federal government has jurisdiction.