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This Week in Congress – May 11, 2015 re: Waters of the United States, NDAA, USA Freedom Act and more

The House returns this week from a district work period, set to focus on legislation related to law enforcement, defense and national security matters, while the Senate will begin debate on trade promotion authority.

The House will begin the week on Tuesday by completing consideration of H.R. 1732, the Regulatory Integrity Protection Act of 2015, a bill to prevent implementation of the so-called “Waters of the United States”  (WOTUS) regulation that would bring within the jurisdiction of the Army Corps of Engineers a much wider array of property deemed to be wetlands under federal authority than under current regulation.  The bill will be sent to the President for signature after House passage.

Members are then scheduled to consider several suspensions related to fallen law enforcement and public safety officials.  S. 665, the Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015, will assist with the establishment of a nationwide Blue Alert system to apprehend violent criminals who have injured or killed police officers.  This bill is named in honor of two New York City Police Detectives who were assassinated while sitting in their police patrol car in December 2014.  H.R. 606, Don’t Tax Our Fallen Public Safety Heroes Act, would amend the IRS Code to exempt death benefits paid to surviving dependents of public servants who died in the line of duty from being considered taxable gross income. H.R. 723, the Fallen Heroes Flag Act of 2015, would provide Capitol-flown flags to the immediate family of fire fighters, law enforcement officers, and other public safety officers who are killed in the line of duty.  Also related to law enforcement and public safety officials is H.R. 2146, which would allow federal law enforcement officers and firefighters to access money in their Thrift Savings Plan accounts without the 10 percent tax penalty when they are eligible to retire.

From Wednesday through the remainder of the week, a bulk of legislative activity is expected to be focused on H.R. 1735, the Fiscal Year 2016 National Defense Authorization Act, which is the annual congressional budget authorization for defense activities.  Reported out of the House Armed Services Committee (HASC) on April 30, by a vote of 60-2, the bill contains $612 billion in funding levels and major policy changes and renewals.  While the bill does not actually spend any money, it provides authorization for funding levels for later appropriations bills.  The White House has not gone so far as to issue a veto threat but has stated that it does not support the bill in its current form.  Controversy has already erupted over an amendment adopted during HASC markup regarding illegal immigrants and may threaten Republican support necessary for final passage.  Rep. Ruben Gallego (D-AZ) secured enough committee votes to approve his amendment that would encourage the Secretary of Defense to consider allowing illegal immigrants granted executive amnesty to serve in the military.  While the provision would have no force of law, 25 House conservatives have threatened to withdraw support for the entire bill because they view the provision as support for an amnesty for illegal immigrants.

After taking action on the NDAA, the House will then move to consider H.R. 36, the Pain-Capable Unborn Child Protection Act.  The bill would prohibit most abortions after 20 weeks of pregnancy.  This bill was scheduled for consideration by the House in January but pulled from the floor before a vote could take place due to a revolt from members of the Republican caucus, many of them women.  The opposition stemmed from language that would permit an exception for victims of rape and incest to have a late-term abortion if they reported the assault to law enforcement authorities.  The reporting requirement was removed from the bill and replaced with a provision that allows the victims to have a late-term abortion if the doctor has ensured the individual has received counseling or medical treatment at least 48 hours before the procedure.

Another item on the House agenda is H.R. 2048, the USA Freedom Act, which would make reforms to surveillance programs. The legislation would end the NSA’s bulk collection of Americans’ communications records, which was largely thought to have been authorized under Section 215 of the USA PATRIOT Act.  The bill also aims to increase transparency and accountability in government surveillance programs.  The bill was reported out of the House Judiciary Committee 25-2, and a companion bill has been introduced in the Senate.  While there is bipartisan support for reform, some lawmakers, including Senate Majority Leader Mitch McConnell, support the program and have called for  clean extension of the current authorization.  Complicating that notion is a decision last Thursday by the U.S. Court of Appeals for the Second Circuit, which ruled that the NSA bulk collection of phone records is illegal.  The panel unanimously ruled that Section 215 of the USA PATRIOT Act does not authorize the bulk collection of phone records.  In the majority ruling, the judges noted the current legislative debate surrounding the program as well as the looming June 1 expiration date of the program, unless extended by congressional action.

Should the House work through this already ambitious agenda, there is potential for the consideration of H.R. 1191, the Iran Nuclear Agreement Review Act of 2015, which passed the Senate last Thursday 98-1.  The bill ensures a congressional role in the review of any international agreement on Iran’s nuclear program.  The bill would require the President to submit any such agreement to Congress within five days of its conclusion and would prohibit the Administration from lifting any sanctions on Iran for a set amount of time while Congress reviews the agreement.  During this period, Congress could approve, disapprove or take no action on the agreement.  Enactment of a joint resolution of disapproval (which would be subject to a presidential veto) within the review period would block the President from implementing relief from U.S. sanctions.  The language of H.R. 1191 remains unchanged from the version unanimously reported out of the Senate Foreign Relations Committee on April 14, because no amendments were agreed to during Senate debate.

On the Senate side this week, senators will begin consideration of the Hatch-Wyden trade promotion authority (TPA) legislation, which allows for trade deals negotiated by the Administration to be submitted to Congress for a straight up-or-down vote within a limited period of time.  Last Wednesday, Majority Leader Mitch McConnell filed a motion to proceed to the legislative vehicle for the “fast-track” legislation, H.R. 1314, and then filed a cloture motion on the motion to proceed.  Press reports indicate that President Obama has been lobbying Democratic members over the last two weeks to encourage their support of the “fast-track” legislation because a majority of Democrats have come out in opposition.  Minority Leader Harry Reid, a vociferous opponent of TPA, has been trying to derail Senate consideration of the bill by lobbying his colleagues to block the measure until the Senate considers two other pressing items: an extension of the surface transportation authorization (which expires May 31) and the USA Freedom Act, the bill to reform and extend intelligence surveillance authorities.  Passage of TPA is seen as critical for the Obama Administration to expedite the conclusion of the Trans-Pacific Partnership (TPP) agreement, which would liberalize trade among 12 countries.  Japan and other TPP countries have expressed reluctance to close TPP without TPA’s procedural protections and expedited process.  The TPA measure includes other trade-related provisions, which include the Africa Growth and Opportunity Act and the more controversial Trade Adjustment Assistance program (TAA), which provides assistance to U.S. workers whose jobs are affected by international trade.  While an amendment is likely from Republicans to strike the extension of TAA, if such an amendment were to succeed, Democratic support for the TPA bill would likely evaporate, so expect event most opponents of TAA to oppose an amendment to remove it from the bill.

Before adjourning for the Memorial Day recess, scheduled for the week of May 25, in addition to renewing the expiring surveillance authorities, both chambers will need to act on the impending expiration of the authorities under the Highway Trust Fund, most likely through the passage of a short-term extension.  As noted above, the current authorization for surface transportation and infrastructure funding expires May 31st.

This week the Senate Armed Services Subcommittees will continue to markup their version of the FY 2016 NDAA.  The House Financial Services Subcommittee on Oversight and Investigations will hold a hearing on the Dodd-Frank Act.  The House Appropriations Committee will take up its fourth appropriations bill of the year when it holds a markup the FY 2016 Transportation, Housing and Urban Development spending measure on Wednesday.

A  full list of congressional hearings scheduled this week are listed below:

Monday, May 11, 2015

Senate Committees

Fiscal 2016 Defense Authorization: Airland
Senate Armed Services – Subcommittee on Airland
Subcommittee Markup
2:30 p.m., 222 Russell Bldg.

U.S.-China Civil Nuclear Agreement
Senate Foreign Relations
Full Committee Closed Hearing
6 p.m., 219 Hart Bldg.

Tuesday, May 12, 2015

Senate Committees

Fiscal 2016 Appropriations: Financial Services
Senate Appropriations – Subcommittee on Financial Services and General Government
Subcommittee Hearing
10:30 a.m., 138 Dirksen Bldg.

Fiscal 2016 Defense Authorization: Seapower
Senate Armed Services – Subcommittee on Seapower
Subcommittee Markup
9:30 a.m., 222 Russell Bldg.

Fiscal 2016 Defense Authorization: Strategic Forces
Senate Armed Services – Subcommittee on Strategic Forces
Subcommittee Markup
11 a.m., 222 Russell Bldg.

American Mineral Security Act
Senate Energy and Natural Resources
Full Committee Hearing
10 a.m., 366 Dirksen Bldg.

Fiscal 2016 Defense Authorization: Readiness and Management Support
Senate Armed Services – Subcommittee on Readiness and Management Support
Subcommittee Markup
2 p.m., 106 Dirksen Bldg.

Fiscal 2016 Defense Authorization: Emerging Threats and Capabilities
Senate Armed Services – Subcommittee on Emerging Threats and Capabilities
Subcommittee Markup
3:30 p.m., 106 Dirksen Bldg.

Fiscal 2016 Defense Authorization: Personnel
Senate Armed Services – Subcommittee on Personnel
Subcommittee Markup
5:30 p.m., 106 Dirksen Bldg.

Civil Nuclear Agreement with China
Senate Foreign Relations
Full Committee Hearing
2:30 p.m., 419 Dirksen Bldg.

Veterans Choice Program
Senate Veterans’ Affairs
Full Committee Hearing
2:30 p.m., 418 Russell Bldg.

Wednesday, May 13, 2015

House Committees

Fiscal 2016 Appropriations: Transportation-HUD
House Appropriations
Full Committee Markup
10:15 a.m., 2359 Rayburn Bldg.

Hydropower and Natural Gas Pipelines
House Energy and Commerce – Subcommittee on Energy and Power
Subcommittee Hearing
10 a.m., 2123 Rayburn Bldg.

Dodd-Frank Act Oversight
House Financial Services – Subcommittee on Oversight and Investigations
Subcommittee Hearing
9:30 a.m., HVC-210 Capitol Visitor Center

ISIS and Religious Minorities
House Foreign Affairs
Full Committee Hearing
10 a.m., 2172 Rayburn Bldg.

Internet Domain Name Operations
House Judiciary – Subcommittee on Courts, Intellectual Property and the Internet
Subcommittee Hearing
10 a.m., 2141 Rayburn Bldg.

Airport Security Issues
House Oversight and Government Reform
Full Committee Hearing
10 a.m., 2154 Rayburn Bldg.

White House Greenhouse Gas Emission Targets
House Natural Resources
Full Committee Oversight Hearing
10 a.m., 1324 Longworth Bldg.

Nuclear Energy Issues
House Science, Space and Technology – Subcommittee on Energy
Subcommittee Hearing
10 a.m., 2318 Rayburn Bldg.

Peer-to-Peer Lending Issues
House Small Business
Full Committee Hearing
11 a.m., 2360 Rayburn Bldg.

Rail Regulatory Issues
House Transportation and Infrastructure – Subcommittee on Railroads, Pipelines and Hazardous Materials
Subcommittee Hearing
10 a.m., 2167 Rayburn Bldg.

Veterans Choice Program
House Veterans’ Affairs
Full Committee Hearing
10 a.m., 334 Cannon Bldg.

Internet Domain Oversight
House Energy and Commerce – Subcommittee on Communications and Technology
Subcommittee Hearing
2 p.m., 2322 Rayburn Bldg.

Capital Formation and Regulatory Issues
House Financial Services – Subcommittee on Capital Markets and Government Sponsored Enterprises
Subcommittee Hearing
2 p.m., HVC-210 Capitol Visitor Center

EMP Preparedness Assessment
House Oversight and Government Reform – Subcommittee on National Security; Subcommittee on National Security
Subcommittees Joint Hearing
2 p.m., 2154 Rayburn Bldg.

Senate Committees

Fiscal 2016 Appropriations: Interior-Environment
Senate Appropriations – Subcommittee on Interior, Environment and Related Agencies
Subcommittee Hearing
10 a.m., 124 Dirksen Bldg.

Fiscal 2016 Defense Authorization
Senate Armed Services
Full Committee Markup
9:30 a.m., 222 Russell Bldg.

Border Fencing and Technology
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
2 p.m., 342 Dirksen Bldg.

Educational Opportunities for Native American Children and New Mexico Land Bill
Senate Indian Affairs
Full Committee Oversight Hearing and Markup
2:15 p.m., 628 Dirksen Bldg.

Benefits Legislation
Senate Veterans’ Affairs
Full Committee Hearing
3 p.m., 418 Russell Bldg.

Thursday, May 14, 2015

House Committees

Native American Education Management
House Education and the Workforce
Full Committee Hearing
10:30 a.m., 2175 Rayburn Bldg.

National Forest Fire Protection Issues
House Natural Resources – Subcommittee on Federal Lands
Subcommittee Hearing
9:30 a.m., 1324 Longworth Bldg.

Mining Regulation Legislation
House Natural Resources – Subcommittee on Energy and Mineral Resources
Subcommittee Hearing
10 a.m., 1334 Longworth Bldg.

D.C. Opportunity Scholarship Program
House Oversight and Government Reform
Full Committee Field Hearing
9:30 a.m., Archbishop Carroll High School, 4300 Harewood Rd. NE

Coast Guard Acquisitions
House Transportation and Infrastructure – Subcommittee on Coast Guard and Maritime Transportation
Subcommittee Hearing
10:30 a.m., 2253 Rayburn Bldg.

VA Purchase Card Program Management
House Veterans’ Affairs – Subcommittee on Oversight and Investigations
Subcommittee Hearing
10:30 a.m., 334 Cannon Bldg.

Energy Production in the Western Hemisphere
House Foreign Affairs – Subcommittee on the Western Hemisphere
Subcommittee Hearing
2 p.m., 2200 Rayburn Bldg.

Human Rights and Terrorism Legislation
House Foreign Affairs – Subcommittee on Africa, Global Health, Global Human Rights and International Organizations
Subcommittee Markup
2 p.m., 2172 Rayburn Bldg.

Sex Trafficking Victims
House Foreign Affairs – Subcommittee on Africa, Global Health, Global Human Rights and International Organizations
Subcommittee Hearing
2:30 p.m., 2172 Rayburn Bldg.

Trust Land Acquisition Standards
House Natural Resources – Subcommittee on Indian, Insular and Alaska Native Affairs
Subcommittee Oversight Hearing
2 p.m., 1334 Longworth Bldg.

Veterans Affairs Legislation
House Veterans’ Affairs – Subcommittee on Disability Assistance and Memorial Affairs
Subcommittee Markup
2 p.m., 334 Cannon Bldg.

Senate Committees

CFTC and Market Liquidity
Senate Agriculture, Nutrition and Forestry
Full Committee Hearing
10 a.m., 106 Dirksen Bldg.

Fiscal 2016 Appropriations: Labor-HHS-Education
Senate Appropriations – Subcommittee on Labor, Health and Human Services, Education and Related Agencies
Subcommittee Hearing
10 a.m., 124 Dirksen Bldg.

Fiscal 2016 Defense Authorization
Senate Armed Services
Full Committee Markup
9:30 a.m., 222 Russell Bldg.

Global Cyber Behavior
Senate Foreign Relations – Subcommittee on East Asia, the Pacific, and International Cybersecurity Policy
Subcommittee Hearing
10 a.m., 419 Dirksen Bldg.

Friday, May 15, 2015

House Committees

Antitrust Enforcement Oversight
House Judiciary – Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Subcommittee Hearing
9 a.m., 2141 Rayburn Bldg.

VA Staffing Issues
House Veterans’ Affairs – Subcommittee on Health
Subcommittee Hearing
May 15, 9:45 a.m., 334 Cannon Bldg.

Health Legislation
House Veterans’ Affairs – Subcommittee on Health
Subcommittee Markup
May 15, 9:45 a.m., 334 Cannon Bldg.

Senate Committees

Fiscal 2016 Defense Authorization
Senate Armed Services
Full Committee Markup
9:30 a.m., 222 Russell Bldg.

© 2020 Covington & Burling LLPNational Law Review, Volume V, Number 131

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About this Author

Richard Hertling, Covington, public policy lawyer
Of Counsel

Richard Hertling provides regulatory and legislative advice and guidance and lobbying to a diverse set of clients in a range of industries. He joined the firm after more than 27 years of federal government service that included senior positions in both Houses of Congress and the Justice Department, during which he was respected for developing strategic and tactical approaches to advance legislation. He brings those same skills to bear for clients with complex policy challenges.

While holding senior positions on Capitol Hill and at the Department of Justice, Mr....

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