Steptoe & Johnson LLP
Senate Delays August Recess as Health Care Effort Stalls
On July 11, Senate Majority Leader Mitch McConnell (R-Ky.) announced that he was delaying the start of the Senate’s late-summer recess, which typically lasts for the entire month of August. McConnell stated that while he hoped to hold a vote on health care legislation before August 1, he would keep the Senate in session to act on other legislative priorities, including the National Defense Authorization Act and many of President Trump’s pending nominations.
McConnell had originally declared that the Senate would vote on a health care bill before the July 4 recess, but that was postponed after it became clear that Republicans could not secure the 50 votes necessary to approve the measure. Separately, House Majority Leader Kevin McCarthy (R-Calif.) said that the House would not be shortening its recess, but would be called back to Washington as needed if the Senate passed a health care bill.
House Passes Pair of Immigration Bills
On June 29, the House approved two immigration-related measures that now await consideration in the Senate.
The No Sanctuary for Criminals Act (H.R. 3003) would withhold certain Department of Justice (DOJ) and Department of Homeland Security (DHS) grants from jurisdictions that violate federal law by prohibiting their officers from communicating with Immigration and Customs Enforcement (ICE).
The bill would require jurisdictions to comply with detainers requested by ICE to hold suspected undocumented immigrants for 48 hours following an arrest for possible deportation.
In addition, the bill would protect jurisdictions that comply with detainers from being sued, while allowing victims of crimes committed by illegal aliens to sue jurisdictions that refuse to comply and subsequently release criminal aliens back into the general population.
Furthermore, H.R. 3003 contains Sarah and Grant’s Law, which ensures that unlawful immigrants convicted of drunk driving or arrested for other dangerous crimes are detained during their removal proceedings. The bill passed largely along party lines on a 228–195 vote.
The House also passed Kate’s Law (H.R. 3004) — legislation that PORAC supports — which enhances the current maximum sentences for illegal reentry into the United States. The bill is named after Kate Steinle, who was murdered in San Francisco by an unlawful immigrant who had previously been deported five times and convicted of seven felonies. The bill passed 257–167, with 24 Democrats — including Representatives Eric Swalwell (15th District) and Jackie Speier (12th District) — joining all Republicans to vote in favor.
The Senate has not yet indicated when it plans to consider the two bills.
Judiciary Hearings Examine
Data Stored Abroad, Immigration-Related Gang Violence
In late June, the House Judiciary Committee held a hearing titled “Data Stored Abroad: Ensuring Lawful Access and Privacy Protection in the Digital Era.” The hearing focused on the problems arising from the Second Circuit’s 2016 decision in Microsoft v. United States, which found that the Stored Communications Act (which constitutes Title II of the Electronic Communications Privacy Act [ECPA]) “does not authorize courts to issue and enforce against U.S.-based service providers warrants for the seizure of customer email content that is stored exclusively on foreign servers.” In the case, Microsoft had refused to comply with a search warrant for email content on the basis that the data was stored on a server in Ireland rather than the United States.
Chairman Bob Goodlatte (R-Va.) called for a legislative fix and for Congress to take steps to resolve the international conflict of laws issues, noting that lawmakers “must ensure that any solution to this issue protects both Americans’ civil liberties and helps law enforcement do their jobs.” PORAC will continue to closely follow this debate, as ECPA reform has been an issue the group has prioritized and discussed in meetings with members of Congress.
Also in late June, the Senate Judiciary Committee held a hearing titled “The MS-13 Problem: Investigating Gang Membership, its Nexus to Illegal Immigration, and Federal Efforts to End the Threat.” The hearing focused on the growing problem of violent criminal gangs, MS-13 in particular, and their recruiting of unaccompanied alien children (UACs). Chairman Chuck Grassley (R-Iowa) called for better post-release oversight and stronger sponsor programs. Once UACs are apprehended, the Customs and Border Patrol is supposed to find them an appropriate sponsor, but oftentimes the sponsors are in the country illegally themselves or have a criminal record. Additionally, a large number of sponsored UACs never appear at their required hearings.
Grassley admonished the DOJ, DHS and the Department of Health and Human Services (DHHS) for allowing these minors to fall through the cracks and for not having any statistics about how many of the 10,000-plus MS-13 gang members in the U.S. today entered the country as UACs.
Sessions Announces DOJ
Crackdown on Fraudulent Prescribing With Focus on
On July 13, U.S. Attorney General Jeff Sessions announced the launch of a DOJ effort aimed at preventing fraudulent prescribing practices and punishing those who have committed federal health care fraud. Sessions was joined by DHHS Secretary Tom Price and acting Federal Bureau of Investigation Director Andrew McCabe, whose agencies collaborated with the DOJ’s Criminal Division in the massive investigation.
Sessions stated that DOJ has charged 412 people, including 56 physicians, with defrauding the federal government. Of this total, 120 of the defendants have been charged with opioid-related crimes, which Sessions said represents the largest opioid-related fraud takedown in American history. He added that 295 health care providers are now in the process of being suspended or banned from participating in federal health programs as a result of the effort. In all, the defendants charged in this operation defrauded the government of approximately $1.3 billion.
Supreme Court Rules on Criminal Forfeiture Case
In early June, the Supreme Court unanimously held in Honeycutt v. United States that a criminal defendant can be held liable to forfeit only proceeds from a crime the defendant personally obtained, and cannot be made jointly and severally liable for proceeds acquired by a co-conspirator.
The decision reverses decades of federal appeals court precedent and will likely have a wide-ranging impact on the government’s ability to obtain criminal forfeiture. Prior to this case, courts regularly ordered criminal defendants to forfeit the value of assets obtained from the entire criminal activity — regardless of whether the defendant personally obtained the illegal proceeds — and prosecutors often sought criminal forfeiture from parties with the resources to pay the forfeiture judgement (such as corporate defendants or wealthy co-conspirators).
Spotlight on Legislation
PORAC has been actively monitoring legislation that impacts law enforcement and has taken a position on a number of bills. Below are two bills that PORAC supports.
The Lifesaving Gear for Police Act (S. 1087) was introduced by Senator Pat Toomey (R-Pa.) and would reverse the Obama administration’s directive that state and local police organizations not be permitted to obtain surplus or previously used equipment from the federal government. In May 2015, President Obama issued an executive order that placed restrictions on the 1033 Program, which helps facilitate the transfer of surplus federal equipment to local law enforcement agencies. The order prohibited certain items, such as armored vehicles, from being transferred and placed other items, such as riot gear, on a controlled equipment list for very limited distribution.
- 1087 would roll back the limitations imposed by the executive order on the types of equipment that can be made available to law enforcement. The bill would also require property recalled or seized from a state or local law enforcement agency as the result of the executive order to be returned to the agency at no cost.
The Back the Blue Act (S. 1134/H.R. 2437) was recently re-introduced by Majority Whip John Cornyn (R-Texas) in the Senate and by Representative Ted Poe (R-Texas) in the House. The legislation was originally introduced last Congress in the wake of the killing of five police officers in Dallas in July 2016.
S. 1134/H.R. 2437 would create new federal crimes that increase penalties for actions targeting a federal judge, federal law enforcement officer or any public safety officer from an agency that receives federal funds. The bill would establish new crimes and minimum penalties for killing, attempting to kill, conspiring to kill or assaulting anyone in those categories. In addition, the bill would create a new aggravating factor in federal death penalty cases when anyone in those categories is killed and also expand the rights of law enforcement officers to carry firearms on federal property.