Federal Legislation – Government Avoids Shutdown as Lame Duck Winds to a Close

DARRYL NIRENBERG
Partner
JASON ABEL
Of Counsel
EVA RIGAMONTI
Associate
CAMERON O’BRIEN
Legislative Assistant
Steptoe & Johnson LLP

Congressional Update

Narrowly avoiding a government shutdown, on December 10 President Obama signed into law a continuing resolution (CR) that will fund the government at last year’s levels through April 28, 2017. The House of Representatives voted 326-96 to approve the measure, and the Senate passed it by a 63-36 vote. Separate legislation that funds military construction projects and veterans programs through September 30, 2017, has already been enacted, but funding for all other aspects of the federal government was set to expire absent passage of this CR.

The CR’s passage in the Senate appeared uncertain as a number of Democrats, led by Senator Joe Manchin (W. Va.), raised concerns late in the process that the bill lacked a long-term extension of benefits for coal miners. Ultimately, the opponents opted not to force a government shutdown over the matter. Senate Majority Leader Mitch McConnell (R-Ky.), who represents thousands of coal miners, insisted that the matter could be addressed in the coming months. “I had hoped we’d get a year [extension]. But we’ve got until the end of April to get at it again,” McConnell said.

In addition to maintaining federal spending at current levels, the CR appropriates additional funding for a number of urgent needs such as overseas war operations, natural disaster relief and water infrastructure repairs in Flint, Michigan.

The House and Senate have adjourned and will resume session when the 115th Congress convenes on January 3, 2017.

President-Elect Trump Continues to Assemble Cabinet

With Inauguration Day just weeks away, President-elect Donald Trump has been busy building his team of top advisors. The nomination that will most directly impact law enforcement is that of Senator Jeff Sessions (R-Ala.) to be the next Attorney General of the United States. As Attorney General, Sessions would have the ability to shape federal policies and oversee the enforcement of federal laws.

Considered one of the more conservative members of Congress, Sessions was the first sitting Senator to endorse Trump for President and began advising the candidate on a number of justice-related issues after announcing his support for the billionaire businessman. In terms of policy, the two are most closely aligned on the issues of illegal immigration and border security. Both Trump and Sessions favor increasing deportations and building a wall on the U.S.-Mexico border to stem the influx of illegal immigrants, which Sessions recently called a crisis “that further undermines the integrity of our immigration system.” Many immigration activists fear that Sessions would exercise his discretion to ramp up enforcement of immigration laws that may not have been as strictly enforced under the Obama Department of Justice (DOJ).

In addition to immigration, surveillance is another policy area where a Sessions-led DOJ may look to take action. Sessions has long supported allowing law enforcement broad access to electronic data pertinent to criminal investigations. For example, when Apple refused to assist the Federal Bureau of Investigations in decrypting the mobile device used by the San Bernardino terrorists, Sessions chastised the company for not understanding the seriousness of the matter. Additionally, when the Senate was planning to consider updating the Electronic Communications Privacy Act (ECPA) this summer, Senator Sessions offered amendments to the legislation that would have required providers to turn over to law enforcement an individual’s electronic communications content (including emails, browsing histories, IP addresses and other information) if a government official declared that it was an emergency. PORAC did not support the overall bill to update ECPA, which ultimately was not voted on by the Senate, but expressed its strong support for the changes proposed by Senator Sessions and believes they would represent an important starting point in remedying the flaws in the bill.

An Attorney General Sessions might also revive enforcement of federal marijuana laws. Under President Obama, the DOJ has largely taken a hands-off approach when it comes to enforcing the Controlled Substances Act’s (CSA) prohibition on marijuana in states that have approved the medical or recreational use of the drug. An outspoken critic of marijuana and staunch opponent to legalization efforts, Sessions could abandon the current approach in favor of stricter CSA enforcement regardless of the decisions made by individual states.

The Attorney General has the authority to investigate accusations of misconduct by law enforcement agencies across the country, a tool that has been used regularly by the Obama DOJ. Through the DOJ’s Civil Rights Division, the administration has investigated incidents in cities such as Baltimore, Maryland, and Ferguson, Missouri. It is unclear whether Sessions would continue to prioritize similar investigations into police misconduct.

As a potential member of the president’s cabinet, Sessions must undergo Senate confirmation, a process with which he is very familiar. Sessions went through the process when he was nominated by President Ronald Reagan to a federal judgeship in 1986, but his confirmation was ultimately denied after lawyers testified that he had used racially charged language during his time as the United States Attorney for the Southern District of Alabama. Sessions has refuted those claims but will likely have to answer for those accusations again as he seeks confirmation as Attorney General.

Feinstein to Assume Judiciary Committee Leadership Post

Senator Dianne Feinstein (D-Calif.) will serve as Ranking Member on the Senate Judiciary Committee in the 115th Congress, becoming the first woman in history to hold the post. Senator Pat Leahy (D-Vt.), who has been the top Democrat on the committee since 2001, vacated the position when he decided to replace retiring Appropriations Committee Ranking Member Barbara Mikulski (D-Md.).

Feinstein’s appointment comes just as the Judiciary Committee is preparing to play a significant role in a range of matters in the coming Congress. The most prominent and pressing issues under the committee’s jurisdiction are the Attorney General and yet-to-be-determined Supreme Court nominations. The committee will also be tasked with any immigration, surveillance and criminal justice reform legislation, among other topics. PORAC has already reached out to Senator Feinstein’s office to discuss a variety of law enforcement matters that will be on the agenda in the next Congress.

Many Democrats are hoping that Feinstein will act as a check on the Trump Administration — a role that the Senator seems eager to embrace. “When President-elect Trump is willing to support responsible policies and nominees, I’ll hear him out, but this committee has a vital role to protect the Constitution and scrutinize policies, senior officials and judges very carefully, and that’s what we intend to do,” Feinstein said.

Becerra Leaving U.S. House to Be California AG

Following the election of outgoing California Attorney General Kamala Harris (D) to the U.S. Senate, Governor Jerry Brown (D) tapped U.S. Representative Xavier Becerra (D) to be the state’s next Attorney General. Becerra, who has served his district since 1993 and is the highest-ranking Hispanic member of Congress, was set to become the top Democrat on the House Ways and Means Committee.

In accepting the nomination, Becerra said that he could not refuse the opportunity to serve his home state. “As former Deputy Attorney General, I relished the chance to be our state’s chief law enforcement officer to protect consumers, advance criminal justice reform and, of course, keep our families safe,” Becerra said.

Shortly after Governor Brown named Becerra as Harris’s replacement, former state Assembly Speaker John Perez announced that he would pursue the seat and quickly earned a number of endorsements — including from Harris and Los Angeles Mayor Antonio Villaraigosa. Within a matter of days, however, Perez removed himself from the race due to a newly diagnosed health condition. State Assemblyman Jimmy Gomez (D) has officially entered the race and earned the endorsements of several Congressional Hispanic Caucus members. Former Bernie Sanders campaign strategist Arturo Carmona (D) and former aide to L.A. City Councilman Jose Huizar Sara Hernandez have also entered the race.

Becerra’s nomination is subject to confirmation by the California State Assembly and Senate. The special election to replace Becerra will likely not be held until spring 2017 and may coincide with already scheduled citywide elections in either March or May.