January 28, 2022

Volume XII, Number 28


January 28, 2022

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“Buy American” Provisions Could Impact Pentagon; Federal Judge Bars Government From Withholding Funds to Sanctuary Jurisdictions

Local Officials Meet With Attorney General, Senior ICE Official To Discuss Sanctuary Policies

Legislative Activity

“Buy American” Provisions Could Impact Pentagon

Former Defense officials are concerned that tightening “Buy American” provisions might affect the Pentagon’s ability to procure the best technology, following President Donald Trump’s April 18 Executive Order (EO) calling for an expansive review of existing federal procurement programs to increase government procurement of U.S.-made products.

During a House Armed Services subcommittee hearing on information technology management and acquisitions last week, former Undersecretary of Defense for Personnel and Readiness Peter Levine noted that there has “always been concern in the acquisition community that if we have ‘Buy American’ provisions that become too restrictive, it will limit our ability to get the best weapons systems for our warfighters.”

Former Defense Chief Information Officer Terry Halvorsen agreed, explaining that “[t]here are some cases where unfortunately we can’t buy American in much of the technical side.” Halvorsen recommended that the Pentagon should instead restrict purchases of technology manufactured by certain countries, but did not specify any countries by name.

Lawmakers have previously raised concerns about vulnerabilities in the Department of Defense’s supply chain and the risk of purchasing compromised materials. Ed Greer, former Deputy Assistant Secretary of Defense for Developmental Test and Evaluation, also mentioned cybersecurity risks posed by procuring technology from foreign suppliers.

This Week’s Hearings:

  • On Tuesday, May 2, the House Armed Services Subcommittee on Military Personnel has scheduled a hearing titled “Overview of the Annual Report on Sexual Harassment and Violence at the Military Service Academies.”

  • On Tuesday, May 2, the Senate Armed Services Committee has scheduled a hearing titled “United States Transportation Command.”

  • On Wednesday, May 3, the Senate Appropriations Subcommittee on Defense has scheduled a hearing titled “A Review of Defense Innovation and Research Funding.”

  • On Wednesday, May 3, the House Armed Services Subcommittee on Seapower and Projection Forces has scheduled a hearing titled “Littoral Combat Ships and the Transition to Frigate Class.”

  • On Wednesday, May 3, the Senate Armed Services Subcommittee on Emerging Threats and Capabilities has scheduled a hearing titled “Department of Defense Laboratories and Their Contributions to Military Operations and Readiness.”

  • On Wednesday, May 3, the Senate Armed Services Subcommittee on Personnel has scheduled a hearing titled “Building a F.A.S.T. Force: A Flexible Personnel System for a Modern Military.”

  • On Wednesday, May 3, the House Homeland Security Subcommittee on Counterterrorism has scheduled a hearing titled “Denying Terrorists Entry to the United States: Examining Visa Security.”

Executive Branch Activity

Federal Judge Bars Government From Withholding Funds to Sanctuary Jurisdictions; Local Officials Meet With Attorney General, Senior ICE Official To Discuss Sanctuary Policies

On Tuesday, April 25, U.S. District Court Judge William Orrick issued a preliminary injunction barring U.S. Immigration and Customs Enforcement (ICE) from implementing provisions in President Trump’s January 25 Executive Order (EO) titled “Enhancing Public Safety In The Interior Of The United States” that would withhold federal grant funding from so-called sanctuary jurisdictions.

The injunction was issued in response to complaints filed by the City and County of San Francisco and the County of Santa Clara, CA, arguing the EO violates the Tenth Amendment and coerces local jurisdictions to enforce federal law.  Judge Orrick’s injunction cites comments from President Trump and Attorney General Jeff Sessions that indicate the scope of the EO exceeds ensuring local jurisdictions comply with existing federal law.

In a statement, Attorney General Sessions stated his intent to fight the injunction, stating “The Department of Justice (DOJ) cannot accept such a result, and as the President has made clear, we will continue to litigate this case to vindicate the rule of law.” Similarly, White House Press Secretary Sean Spicer issued a statement in response to the injunction accusing Judge Orrick of ignoring federal immigration law and calling the case “yet one more example of egregious overreach by a single, unelected district judge.” He also expressed the Administration’s intent to take the case to the Supreme Court.

This week’s ruling came amid meetings between Attorney General Sessions and Acting ICE Director Tom Homan with local leaders from the U.S. Conference of Mayors to discuss sanctuary policy issues. Local officials reported that the Department of Homeland Security had finally reached a determination regarding the official definition of a sanctuary jurisdiction, which they noted is limited only to jurisdictions in willful violation of 8 U.S.C. 1373 of the Immigration and Nationalities Act. Sec. 1373 prohibits local jurisdictions from implementing policies that limit communication with the federal government regarding an individual’s immigration or citizenship information.

Following Attorney General Sessions’ meeting with local officials, DOJ released a statement assuring that the mayors who participated in the meeting “want to be in compliance with the law.” He noted, however, that local compliance with Sec. 1373 is the “minimum the American people should expect” and emphasized the importance of all jurisdictions enthusiastically supporting “the laws of the United States that require the removal of criminal aliens.”

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume VII, Number 121

About this Author

Ludmilla L. Savelieff, Policy Attorney, Squire Patton Boggs Law Firm

Ludmilla Savelieff draws on her experience in both domestic and international policy to assist clients on a variety of regulatory, legislative, and legal matters.

Prior to law school, Ms. Savelieff was the Special Assistant to the Chairman of the White House Council on Environmental Quality, where she gained first-hand experience in the daily operations of the Executive Branch. While at the Council, she worked closely with the Chairman and his team of policy advisors in the development and management of significant Administration policies and...

Clark K. Ervin Government Investigations & White Collar Attorney Squire Patton Boggs Washington DC

As a member of the Government Investigations & White Collar Practice, Clark K. Ervin helps clients under investigation, or facing the prospect of investigation, by federal Offices of Inspector General, to craft, coordinate and implement strategic defenses. An integral member of the firm’s Homeland Security, Defense and Technology Transfer team, as well as our International Public Policy Practice, Clark also provides invaluable counsel to clients, both corporations and foreign sovereigns, on issues of national security and foreign policy.

Having served as Inspector General of...

Kameron Simmons, Squire Patton Boggs, Transportation Infrastructure Lawyer, Local Government Public Policy
Public Policy Specialist

Kameron Simmons is a member of the firm’s Transportation, Infrastructure & Local Government Public Policy Practice. Prior to joining the firm, Kam was selected through a competitive process to participate in the firm’s public policy intern program and assisted attorneys and senior policy professionals with legislative and regulatory research, as well as hearing and event coverage and reports. In addition, Kam participated in advocacy efforts for the passage of the Collegiate Housing and Infrastructure Act and sexual assault legislations on Capitol Hill.

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