Federal Legislation – More Executive Orders; Rumored Cuts Worry Law Enforcement

Darryl Nirenberg
Eva Rigamonti
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

President’s Preliminary Budget Plan Targets COPS Funding for Elimination

While President Trump has yet to announce a complete budget for consideration by Congress, his administration has reportedly identified a number of programs that it suggested could be eliminated to reduce the national debt. While many of the programs named — such as the National Endowment for the Arts and National Public Radio — have long been Democratic priorities and thus are unsurprising targets for Republicans, many from both parties did not expect to see law enforcement programs among those proposed to be abolished.

For law enforcement, the most troublesome item on the elimination list is the Community Oriented Policing Services (COPS) Office. COPS grants have been instrumental to the operations of countless police departments across the country. This grant funding, which constitutes the majority of federal support that local departments receive, can assist with technical training, the development of policing strategies, applied research, guidebooks, the hiring of officers (both new and rehired laid-off officers) and the maintenance of officers scheduled to be laid off. In fiscal year 2015 alone, California agencies received $13 million in COPS Hiring Program grants and another 40 various COPS grants totaling $26 million.

The potential elimination of the COPS program is at odds with the pro-law-enforcement tone that President Trump took during his campaign, oftentimes referring to himself as the “law and order candidate.” It also does not seem to align with the priorities that new Attorney General Jeff Sessions pursued while in Congress.

Preserving and increasing COPS Program funding will be a primary topic of discussion during PORAC’s meetings on Capitol Hill this month.

House Expeditiously Passes ECPA Reform Bill, Action in
Senate Uncertain

On February 6, the House of Representatives approved by voice vote the Email Privacy Act (H.R. 387) — a bill to reform the Electronic Communications Privacy Act (ECPA), which extended certain protections for telephone data and electronic data stored on computers. Representative Kevin Yoder (R-Kan.) reintroduced the legislation, which is identical to the bill (H.R. 699) that passed the House 419–0 last year but was not voted on by the Senate. In an unusual procedural move, House leadership brought H.R. 387 directly to the floor without processing it through the Judiciary Committee, the committee with jurisdiction over ECPA, or allowing amendments to be offered. Representative Eric Swalwell (D-Calif.) supported the bill’s passage, but expressed his disappointment in the process by which the legislation was considered — including the failure of the House to address concerns raised by law enforcement.

“Going through the committee process and allowing amendments on the floor would have enabled us to address some of the concerns raised by law enforcement about H.R. 387, such as its view that the bill fails to enable personnel to expediently obtain evidence,” said Swalwell in a speech prior to the bill’s passage. “As a former prosecutor, I share [law enforcement’s] interest in making sure that while we improve privacy protections we do not impede the ability to bring people swiftly to justice.”

Swalwell’s statement echoes remarks he gave when the House passed similar legislation during the last Congress. He called on the Senate to address the points raised by law enforcement in order to improve H.R. 387.

Debate on the issue of updating the Electronic Communications Privacy Act stalled in the Senate last summer as law enforcement organizations raised concerns with certain provisions contained within (as well as omitted from) H.R. 699 and a similar Senate bill, the ECPA Amendments Act (S. 356) sponsored by Senator Mike Lee (R-Utah).

The markup of S. 356 was indefinitely postponed after then Senator Jeff Sessions (R-Ala.) offered a pair of controversial amendments that would have addressed some of law enforcement’s concerns but raised concerns among privacy advocates. The amendments would have 1) required service providers to provide content to law enforcement without a warrant in cases of emergencies and 2) required service providers to provide content without a warrant when the consumer gives consent to access that content. Senator Lee has not reintroduced the ECPA Amendments Act this Congress, and the Senate has not indicated whether it plans to consider H.R. 387 or pursue its own legislation to update ECPA.

ECPA reform will be a key issue that PORAC members will discuss with lawmakers this month during the fly-in.

President’s Executive Orders on Immigration, Travel Restrictions

Less than a week into his presidency, President Trump signed a number of executive orders regarding U.S. immigration policy. The first executive order pertains to border security and immigration enforcement. It notes that the recent surge of illegal immigrants across the U.S.–Mexico border has strained federal resources and overwhelmed agencies tasked with manning the border and enforcing immigration laws. In addition to outlining a policy to end “catch and release” practices, eliminate asylum fraud, and bolster staffing at the Customs and Border Patrol, the order directs the Secretary of Homeland Security to “take all appropriate steps to immediately plan, design and construct a physical wall along the southern border.”

The second executive order aims to end sanctuary cities by suspending federal funding for such municipalities; increase staffing levels at Immigration and Customs Enforcement while empowering those agents to enforce immigration laws; more effectively identify illegal aliens; and create a victim’s advocacy office for victims of crime by illegal aliens. The order notes that “sanctuary cities across the United States willfully violate federal law” and “have caused immeasurable harm to the American people.”

Notably, the order seeks to permit “state and local law enforcement agencies across the country to perform the functions of an immigration officer” within the U.S. to the maximum extent permitted by law. Such authorized actions would include investigating, apprehending and detaining illegal aliens and would support (rather than replace) federal performance of these duties.

The third immigration-related order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” was perhaps the most controversial. The order prohibits people from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the country for 90 days, halts the U.S. refugee program for four months and bans refugees from Syria indefinitely.

The Trump administration noted that it did not provide advance notice of the order to avoid prompting expedited travel by potential terrorists before the new rules took effect. The lack of warning, however, caused significant confusion at airports as border agents tried to implement the new rule. Announcement of the order, which many view as a Muslim ban similar to what Trump promised on the campaign trail, and the ensuing confusion spurred protests across the country and at airports where foreign travelers had been detained.

Not long after the order was issued, a U.S. District Court judge declared a temporary nationwide stay on the order, which was met by an immediate appeal from the Trump administration. At the time this issue went to print, the Ninth Circuit Court of Appeals had upheld the lower court’s stay and the Trump administration announced it would not appeal the decision to the Supreme Court.