Federal Legislation – Congress Passes Budget Legislation After Brief Government Shutdown

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

On February 9, President Trump signed into law a sweeping package of federal spending legislation consisting of (1) a six-week stopgap bill to fund federal government operations at prior levels until March 23, 2018, and (2) a wide-ranging, two-year bipartisan budget agreement that:

  • Raises government spending limits by $296 billion for FY 2018 (the current fiscal year) and FY 2019 (which begins October 1, 2018)
  • Suspends the debt limit through March 1, 2019 (allowing the federal government to borrow what it needs until then to finance government operations)
  • Specifically directs $6 billion to programs aimed at addressing the opioid epidemic and mental health issues
  • Provides $89.3 billion in disaster aid for areas affected by last year’s wildfires in California; hurricanes in Texas, Florida, Puerto Rico and the U.S. Virgin Islands; and other natural disasters
  • Extends a number of temporary tax breaks for certain industries

The legislation, titled the Bipartisan Budget Act of 2018 (H.R. 1892), passed the Senate by a vote of 71–28, and then the House 240–186, early February 9. It ended a brief government shutdown that began at midnight Thursday, February 8, when temporary funding provided under a previous spending resolution ran out. Overall the budget agreement increased discretionary spending caps by $165 billion for defense and $131 billion for non-defense.

Support for the bill was bipartisan — as was the opposition. A group of conservative Republicans voted against the bill because of its high price tag. (The Congressional Budget Office [CBO] estimates the bill will increase federal deficits by approximately $320 billion over 10 years.) Many Democrats, led by House Minority Leader Nancy Pelosi (D-Calif.), voted against the legislation because it failed to include provisions to shield from deportation so-called DACA immigrants brought into the United States illegally as children. While Speaker of the House Paul Ryan (R-Wisc.) pledged to address the immigration issue before an Obama administration policy to defer enforcement action against such immigrants expires in March, Ryan also said he would not bring up a bill for a vote in the House unless it had the support of President Trump and a majority of House Republicans.

The budget agreement clears the way for the House and Senate Appropriations Committees to begin divvying up funds to specific federal programs for FY 2018 in appropriations legislation. Because the budget agreement specifies that the $6 billion it directs to combat the opioid crisis ($3 billion in FY 2018, $3 billion in FY 2019) is for both law enforcement and public health programming, a significant proportion of the funding is likely to be allocated in appropriations bills developed by members of the House and Senate Commerce–Justice-Science (CJS) appropriations subcommittees. The CJS Appropriations Subcommittee in the House is chaired by Representative John Culberson (R-Texas). The Senate CJS subcommittee is chaired by Senator Richard Shelby (R-Ala.). Senator Dianne Feinstein (D-Calif.) is the second-highest-ranking Democrat on the Senate subcommittee.

Congress Passes PORAC-Supported “Kari’s Law” Requiring Multi-Line Telephones to Give Users Direct Access to 9-1-1

On February 9, the House passed H.R. 582, the “Kari’s Law Act of 2017,” by voice vote. Kari’s Law will require multi-line telephone systems (often found in hotels and offices) to have a configuration that permits users to directly call 9-1-1 without having to dial any additional digit, code, prefix or postfix.

PORAC has vocally supported Kari’s Law since it was introduced in prior Congresses and has advocated for its passage in meetings with congressional offices on Capitol Hill during its 2016 and 2017 fly-ins. The legislation was prompted by the murder of Kari Hunt, which took place in a hotel that required users of the hotel’s telephone system to dial an additional number to gain access to an outside line. Despite repeated attempts by Kari’s young daughter to call the police from the hotel room where her mother was being murdered, the child was unable to reach police because she did not know she had to dial “9” to get an outside line.

When this issue went to print, Kari’s Law was at the White House awaiting the president’s signature — which is expected. It will apply to all multi-line telephone systems that are manufactured, imported, installed, offered for first sale or lease, or first sold or leased beginning two years after the date of enactment.

Supreme Court Rules for Law Enforcement in Case Testing Probable Cause and Qualified Immunity Standards

On January 22, the U.S. Supreme Court held in District of Columbia v. Wesby that two D.C. police officers had probable cause to arrest a group of people partying inside a vacant house for trespassing. Considering the “totality of the circumstances,” it was reasonable for the officers to infer that the partygoers knew or should have known they were not authorized to be in the house, the court said. In addition, the court addressed the related question of whether the officers were entitled to immunity from a lawsuit by one of the arrestees (Wesby). Per the opinion, even if the officers did not have probable cause, they were entitled to qualified immunity because, for a lawsuit to proceed against officers in such circumstances, it must be “clearly established” that their conduct was wrong.

On the probable cause question, Justice Clarence Thomas wrote in the opinion for the court that, considered as a whole, the circumstances surrounding the arrests (specifically “the condition of the house and the conduct of the partygoers”) supported a reasonable belief by the officers that the partiers knew they were trespassing. Justice Thomas emphasized that the house was “near-barren” and reasoned that “most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside and to leave their floors filthy.” He added that the partiers’ vague and unconvincing answers to the officers’ questions provided further support for a finding of probable cause. For example, Thomas pointed out that “some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.”

Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Kagan and Gorsuch joined Justice Thomas’ opinion, with Justice Sotomayor concurring in the judgment and Justice Ginsburg concurring in the judgment in part. While Justice Ginsburg agreed with the ultimate outcome of the case, she voiced concern over whether the court’s holding weighed “too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” She noted that one of the officers proceeded with the arrests based on his mistaken belief that the law allowed him to arrest the partiers just because they did not have the homeowner’s consent (even if they believed they were permitted to be in the home).

Department of Justice Threatens 23 “Sanctuary Jurisdictions” With Subpoenas, Loss of Federal Funding

On January 24, the Office of Justice Programs (OJP) at the Department of Justice (DOJ) sent letters threatening 23 state and local jurisdictions with subpoenas if they fail to produce “all documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees … regarding whether and how these employees may, or may not, communicate with the Department of Justice, the Department of Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether directly or indirectly.”

In the letters, the DOJ explains that it is requesting the documents because it “remains concerned” that the laws, policies, or practices of the jurisdictions may violate a federal law that prohibits state and local government entities from enacting laws or policies that restrict communication with the Department of Homeland Security (DHS) about “information regarding the immigration or citizenship status” of any individual. The letters state that compliance with this law is a precondition for eligibility to receive Byrne Justice Assistance Grant (Byrne JAG) funds. They caution that if a jurisdiction is determined to be out of compliance, DOJ may try to take back FY 2016 Byrne JAG funds or restrict access to FY 2017 funds. Among the jurisdictions that received a letter were the State of California and the following jurisdictions within California: Berkeley, Fremont, the City of Los Angeles, Monterey County, Sacramento County, the City and County of San Francisco, Sonoma County and Watsonville.

Previously, federal courts blocked a Trump administration executive order (EO) that would have denied all federal funding to “sanctuary” localities after the localities successfully argued that the EO was an unconstitutional attempt to coerce state and local governments to administer a federal regulatory program. The wide range of programs and the large amounts of funding that the EO threatened was a factor that federal judges took into account in finding the EO unconstitutionally coercive. The threats in the January 24 letters were comparatively narrow: While Byrne JAG funding is very significant, its loss would not be as devastating to localities as a loss of all federal funding. Thus, the withdrawal of funding threatened in the January 24 letters may survive a legal challenge alleging unconstitutional coercion of localities by the federal government.

Federal Legislation – Congress Struggles to Reach a Government Funding Deal

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

Congress started off 2018 with yet another showdown over government funding. Lawmakers returned from their holiday recess with just a few weeks to negotiate a compromise spending bill by January 19 (the date when appropriations would run out). To avoid a shutdown, Republican leadership in Congress proposed a short-term bill to fund the government at current levels until February 16. To garner support from rank-and-file GOP members and make it difficult for Democrats to vote against the funding package, Republican leadership attached legislation that would delay certain Affordable Care Act-related taxes and reauthorize the Children’s Health Insurance Program (CHIP) for six years.

Complicating the funding fight is an increasingly contentious debate over immigration policy, and the fate of Deferred Action for Childhood Arrivals (DACA) policy beneficiaries in particular. The DACA policy — established by the Obama administration on June 15, 2012, and rescinded by the Trump administration on June 16, 2017 — has allowed certain individuals who were brought to the United States illegally as children to request a renewable two-year period of (1) prosecutorial discretion postponing deportation action against them, and (2) temporary work authorization.

Democrats have threatened to oppose any spending deal that does not include a legislative fix allowing DACA beneficiaries to pursue permanent lawful immigration status. Many Democrats’ preferred solution is to include a bipartisan bill called the Dream Act, which would provide a path to citizenship for DACA beneficiaries, in spending legislation.

The White House and conservative congressional Republicans, while generally in favor of legalizing DACA beneficiaries at least temporarily, have demanded that any legislative DACA fix include funding for increased border security (including a border wall), new limitations on the ability of immigrants to bring members of their extended family to the United States (existing immigration laws allow legal immigrants to sponsor certain family members for faster immigration processing) and an end to the Diversity Visa lottery program, under which the State Department uses a lottery system to grant 50,000 visas per year to immigrants from countries that have historically low rates of immigration to the United States.

At the time this issue went to print, it was still unclear whether lawmakers and the White House would be able to strike a bipartisan deal to keep the government open.

Supreme Court Hears Fourth Amendment Case Concerning Warrantless Searches of Vehicles Parked on Private Property

On January 9, the U.S. Supreme Court heard oral arguments in Collins v. Virginia, a case concerning the scope of the “automobile exception” to the general search warrant requirement imposed by the Fourth Amendment. The automobile exception permits police to perform a warrantless search of a vehicle if (1) the vehicle is readily mobile and (2) the police have probable cause to believe the vehicle contains evidence of a crime.

The central question in Collins is whether a motorcycle parked in the defendant’s driveway is covered by the less stringent warrantless search rules applicable to vehicles (subject to the “automobile exception”), or the more stringent warrantless search rules applicable to the home and the area surrounding the home (called the “curtilage”). The case arose when two law enforcement officers walked up the defendant’s driveway to inspect a motorcycle that they believed had been used to evade them by traveling at dangerous speeds (over 140 miles per hour at times). The officers removed the motorcycle’s cover and inspected its license plate and VIN, from which they learned that the motorcycle was listed as stolen.

The defendant, Ryan Collins, argued at his trial that the license place and VIN should be excluded from evidence because the officers’ inspection of the motorcycle was an unconstitutional warrantless search. He argued that the “automobile exception” did not apply to the search of the motorcycle because it was parked in the curtilage surrounding his home. To support his position, he mentioned Supreme Court precedent establishing that searches of one’s home or the curtilage surrounding one’s home are subject to stricter Fourth Amendment limits than searches of one’s vehicle, because of the stronger expectation of privacy in one’s home than in one’s vehicle.

During oral argument, the justices expressed skepticism of both the rule proposed by Collins (searches of vehicles parked on private property near the home should be subject to the same strict Fourth Amendment protections as searches of the curtilage surrounding the home) and the rule proposed by the State of Virginia (searches of vehicles parked on private property near the home should be subject to the same relatively lax Fourth Amendment protections as searches of vehicles on the road, and thus may be conducted without a warrant under the “automobile exception”).

Justice Alito, for example, said he saw “the invasion of privacy that’s involved in walking a few feet up the driveway” as relatively insignificant, and not much different than the invasion of privacy that would have been involved “if [the] motorcycle had been parked on the street.” Justices Gorsuch and Sotomayor, on the other hand, expressed concern that the State of Virginia’s proposed rule would amount to a large expansion of the automobile exception, and could create an overly broad exception to warrant requirements for searches very close to — or even inside of — the home, which would be inconsistent with a core purpose of the Fourth Amendment. The court is expected to announce its decision in Collins v. Virginia by June.

Law Enforcement Mental Health and Wellness Legislation Signed Into Law

On January 10, President Trump signed into law the Law Enforcement Mental Health and Wellness Act of 2017. The legislation boosts federal support for law enforcement mental health and wellness programs by (1) adjusting certain Department of Justice (DOJ) funding parameters and (2) directing DOJ to report on and develop effective mental health services and practices for adoption by law enforcement agencies. The legislation, which PORAC supported, had broad bipartisan support and passed the House by voice vote on November 28 before passing the Senate on December 21.

Specifically, the legislation frees up additional funding for mental health programs by expanding the scope of allowable uses for DOJ Community Oriented Policing Services (COPS) Office grants to include the creation of peer mentoring mental health and wellness pilot programs at state, local and tribal law enforcement agencies. The new law also directs DOJ to produce reports on mental health practices and services aimed at law enforcement officers. For example, DOJ is required to report on Department of Defense and Department of Veterans Affairs mental health practices and services that law enforcement agencies could adopt.

Under the legislation, DOJ is also required to coordinate with the Department of Health and Human Services (HHS) to produce educational resources for mental health care providers detailing (1) treatments for mental health issues common to law enforcement personnel, and (2) law enforcement agency culture. Finally, DOJ must study and recommend improvements to existing practices and services including crisis hotlines, resources specifically geared to federal officer mental health and wellness, and privacy protections for officers using mental health and wellness services.

FCC Votes to Add “Blue Alerts” to the Country’s Emergency Alerting System

On December 14, the Federal Communications Commission (FCC) issued an order adding a new alert option — a “Blue Alert” — to nationwide emergency alerting systems. The Blue Alerts will be similar to AMBER Alerts (which alert the public to child abductions) and will use the same notification system, except they are intended for use by state and local authorities to alert the public to threats to law enforcement as quickly as possible, and to help apprehend dangerous suspects.

Specifically, according to the FCC, Blue Alerts will notify the public when there is “actionable information related to a law enforcement officer who is missing, seriously injured, or killed in the line of duty, or when there is an imminent credible threat to an officer.” In addition, Blue Alerts will warn members of the public of violent suspects in their communities and provide instructions on what people should do if they encounter such a suspect.

All five FCC commissioners approved of the order, although one, Jessica Rosenworcel, approved in part and dissented in part. Specifically, Commissioner Rosenworcel agreed with the overall decision to create the Blue Alert program, but disagreed with the FCC’s use of an economic metric known as the “value of preventing a fatality” (VPF) in its cost–benefit analysis of the program. The VPF metric is an estimate of the dollar value of the average police officer’s life, which was compared to the average costs borne by the telecom industry to implement the Blue Alert program. Commissioner Rosenworcel wrote in her partial dissent that the “cold calculus” of weighing the cost of telecom industry compliance against the statistically determined dollar value of a police officer’s life “is neither needed nor smart,” and that “there is a way to do cost–benefit analysis thoughtfully and with dignity for those who wear the shield.” Her position is in line with her longstanding commitment to law enforcement. As an FCC commissioner, Rosenworcel has been a vocal advocate for reforming the 9-1-1 system. In fact, PORAC met with her office to discuss 9-1-1 reform in the spring of 2016.