Category Archives: Legislation in the News

Foundations for Evidence-Based Policymaking Act, H.R. 4174, passes House; Incorporates provisions of the OPEN Government Data Act

The bipartisan supported Foundations for Evidence-Based Policymaking Act, H.R. 4174, passed the House by voice vote on Nov. 15, 2017. Sponsored by Speaker Ryan, the bill incorporates some of the recommendations the White House’s Commission on Evidence-Based Policymaking made in September and absorbs elements of the Open, Public, Electronic and Necessary Government Data Act, or the OPEN Government Data Act, sponsored by Reps. Derek Kilmer, D-Wash., and Blake Farenthold, R-Texas., and Sens. Brian Schatz, D-Hawaii., and Ben Sasse, R-Neb. Quoting from H. Rept. 115-411:

H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2017, advances the evidence building functions in the Federal government by improving access to data and expanding evaluation capacity. The bill incorporates H.R. 1770, the OPEN Government Data Act, in titles I and II, which expand public access to Federal data assets and make information about Federal data assets publicly available in a comprehensive, searchable inventory. H.R. 4174 improves data management practices by codifying the Chief Data Officer position and requiring the new position to coordinate the agency’s data management functions. H.R. 4174 also establishes the position of Chief Evaluation Officer, which is responsible for coordinating evidence-building activities across the agency and leading the agency’s evidence-building strategic planning. The bill further expands access to data by establishing a secure process for accessing nonpublic data assets for the purpose of evidence-building.

Summary of the Foundations for Evidence-Based Policymaking Act

Title I, Federal Evidence-Building Activities

  • Requires federal agencies to submit an evidence-building plan, which will be consolidated into one government-wide plan by the Office of Management and Budget
  • Requires federal agencies to appoint/designate a Chief Evaluation Officer to coordinate evidence-building activities within the agency Establishes an advisory committee on data for evidence building

Title II, OPEN Government Act

  • Ensures maximum data availability while respecting privacy and national security concerns
  • Requires federal agencies to appoint/designate a Chief Data Officer
  • Instructs federal agencies to establish a data inventory and federal data catalogue

Title III, Confidential Information Protection and Statistical Efficiency

  • Expands access to data while improving privacy standards

— Joe

Second set of articles of impeachment filed against President Trump

Congressman Steve Cohen (D-TN-09), the ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice, which has jurisdiction over impeachment matters, and four Democratic colleagues, introduced five articles of impeachment against President Donald J. Trump yesterday. The five articles are:

  • Article I – Obstruction of Justice
  • Article II – Violation of Article I, Section 9 of the U.S. Constitution – Foreign Emoluments
  • Article III – Violation of Article II, Section 1 of the U.S. Constitution – Domestic Emoluments
  • Article IV – Undermining the Independence of the Federal Judiciary and the Rule of Law
  • Article V – Undermining Freedom of the Press


End Note: LLB post on first articles of impeachment. — Joe

Countdown to Day 301 under the Federal Vacancies Reform Act of 1998

Of 612 key positions requiring Senate confirmation, no candidate has been nominated by the Trump Administration for 259 positions according to the Washington Post-Partnership for Public Service tracker. Most, if not all, of these key advice and consent positions are occupied by acting officers. For many such situations, the Federal Vacancies Reform Act of 1998, 5 U.S. Code § 3345, limits the amount of time an acting officer may remain in his or her position. According to the CRS Legal Sidebar, Out of Office: Vacancies, Acting Officers, and Day 301 (Nov. 1, 2017 LSB10022):

A number of acting officers are currently filling vacancies that occurred during the presidential transition period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with the 90-day extension [under The Vacancies Act], will come to an end beginning sometime in November. If an acting officer remains in office beyond this 300-day period, and if the President has not submitted any nomination to that office, then the acting officer runs the risk of violating the Vacancies Act.

So if an acting officer was appointment on Jan. 20, 2017, then day 301 is November 17th. According to the CRS analysis here’s what can happen on Day 301:

On Day 301, whenever that day might occur for a particular office, the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office. (If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the act had never been done. (There are a few specifically named offices that are exempt from this provision, but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision through the proper processes.

For a detailed analysis, see The Vacancies Act: A Legal Overview (Oct. 30, 2017, R44997). — Joe

Restricting the first-use nuclear strike option by legislation

On January 24, 2017, identical versions of the Restricting First-Use of Nuclear Weapons Act of 2017 were introduced in both chambers of Congress: H.R. 669 and S. 200. See this LLB post. Earlier this month, CRS released two reports on the topic:

HT beSpacific. — Joe

Text of Tax Cuts and Jobs Act released

Here’s the text of the Tax Cuts and Jobs Act as released by the House Ways and Means Committee today. For a summary of major changes, see this Business Insider report. — Joe

Who earns pass-through business income?

Once released (tomorrow?), the tax treatment of pass-through businesses in the House’s tax cut legislation will play an important role in reducing the tax liability of more than half of all US business income. Here’s an excerpt from the CRS report, Who Earns Pass-Through Business Income? An Analysis of Individual Tax Return Data (Oct. 24, 2017 R42359):

Pass-through businesses—sole proprietorships, partnerships, and S corporations—generate more than half of all business income in the United States. Pass-through income is, in general, taxed only once at the individual income tax rates when it is distributed to its owners. In contrast, the income of C corporations is taxed twice; once at the corporate level according to corporate tax rates, and then a second time at the individual tax rates when shareholders receive dividend payments or realize capital gains. This leads to the so-called “double taxation” of corporate profits.

This report analyzes individual tax return data to determine who earns pass-through business income. The analysis finds that in 2011 over 82% of net pass-through income was earned by individuals with an adjusted gross income (AGI) over $100,000, although these taxpayers accounted for just 23% of individual returns with pass-through income. A significant fraction of pass-through income is concentrated among upper-income earners. Taxpayers with an AGI over $250,000, for example, received 62% of pass-through income, but accounted for just over 6% of returns with pass-through income. Individuals with an AGI in excess of $1 million earned about 32% of pass-through income, while filing roughly 1% of all returns with pass-through income.

— Joe

Proposed amendment to H.R. 195 would restrict free print distribution of legislative documents

On Free Government Information James Jacobs reports on the following development and calls for action opposing this proposed change:

The Federal Register is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. There’s a particularly damaging bill, H.R. 195: Federal Register Printing Savings Act of 2017, winding its way through Congress, having already passed the House, reported out of the Senate Committee on Homeland Security and Governmental Affairs and is pending action and vote on the Senate floor. If passed, the bill — “To amend title 44, United States Code, to restrict the distribution of free printed copies of the Federal Register to Members of Congress and other officers and employees of the United States, and for other purposes” — would restrict the printing of copies of the Federal Register only to Members of Congress and Government officials.

What’s even worse, FGI sources say that Missouri Senator Claire McCaskill (D-MO) is set to propose an amendment to HR 195 that would eliminate the printing not only of the Federal Register, but of copies of congressional hearings, committee reports, and bills, resolutions, and amendments in both the Senate and the House.

— Joe

Honest Ads Act has bipartisan support

A bipartisan group of lawmakers in the Senate introduced Thursday the Honest Ads Act in an attempt to create stricter rules and increase transparency for political advertisements placed online. [Text of Bill] The bill — sponsored by Senators Mark Warner, D-VA, Amy Klobuchar, D-MN, and John McCain, R-AZ — will aim to align the rules for online advertising with standards set for advertising in other forms of media including television and radio. If passed, the Honest Ads Act would require online advertising platforms — including Google and Facebook — to include disclosures that identify who purchased an ad. It would also require the ad platforms to maintain a public file of ads about candidates and political issues. — Joe

Text of first Articles of Impeachment against President Trump submitted to Congress

Back on May 12, 2017, CNN ran a story listing Democrats who were discussing the impeachment of President Trump. Two months later, H.Res. 438 – Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, was introduced by Rep. Brad Sherman [D-CA-30] and referred to the House Committee on the Judiciary. Here’s the text of the first articles of impeachment filed against President Trump.

H. RES. 438: Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.


July 12, 2017

Mr.  Sherman (for himself and Mr. Al Green of Texas) submitted the following resolution; which was referred to the Committee on the Judiciary

Resolved,  That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.


In his conduct while President of the United States, Donald John Trump, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed and impeded the administration of justice during a Federal investigation in that:

Knowing that Federal law enforcement authorities were investigating possible criminal law violations of his former National Security Advisor, General Michael Flynn and knowing that Federal law enforcement authorities were conducting one or more investigations into Russian state interference in the 2016 campaign for President of the United States, and that such investigation(s) included the conduct of his campaign personnel and associates acting on behalf of the campaign, to include the possible collusion by those individuals with the Russian government, Donald John Trump sought to use his authority to hinder and cause the termination of such investigation(s) including through threatening, and then terminating, James Comey, who was until such termination the Director of the Federal Bureau of Investigation.

The pattern of behavior leading to the conclusion that he sought to cause the hindrance or termination of said investigation(s) include the following:

(1) Requesting that the Director of the Federal Bureau of Investigation curtail the investigation of the activities of General Michael Flynn under circumstances wherein it appeared that Director Comey might be terminated if he failed to adhere to such request.

(2) Making a determination to terminate the Director of the Federal Bureau of Investigation, and only thereafter requesting that the Deputy Attorney General provide him with a memorandum detailing inadequacies in the Director’s performance of his duties.

(3) Despite offering differing rationales for the termination of the Director of the Federal Bureau of Investigation, admitted subsequently that the main reason for the termination was that the Director would not close or alter the investigation of matters related to the involvement of Russia in the 2016 campaign for President of the United States.

(4) Stated that, once he had terminated the Director of the Federal Bureau of Investigation, the pressure of said investigation had been significantly reduced.

In all of this, Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, warrants impeachment and trial, and removal from office.

— Joe

Trump’s immigration principles for DACA deal [text]

Here’s the text of the recently released immigration principles proposed by the Trump Administration as the basis for a bipartisan DACA agreement. — Joe

Maybe it is time for Congress to take action on the Restricting First Use of Nuclear Weapons Act of 2017

After President Trump’s “calm before the storm” remark last night, maybe it is time to move the Restricting First Use of Nuclear Weapons Act of 2017 forward. Introduced in House and Senate on Jan. 24, 2017 by Rep. Ted Lieu [D-CA-33] and Sen Edward Markey [D-MA] the Restricting First Use of Nuclear Weapons Act of 2017, H.R. 669 / S. 200 prohibits the President from using the Armed Forces to conduct a first-use nuclear strike unless such strike is conducted pursuant to a congressional declaration of war expressly authorizing such strike. The bills are sitting in committees right now.

From the joint Lieu-Markey press release:

Upon introduction of this legislation, Mr. Lieu issued the following statement:

“It is a frightening reality that the U.S. now has a Commander-in-Chief who has demonstrated ignorance of the nuclear triad, stated his desire to be ‘unpredictable’ with nuclear weapons, and as President-elect was making sweeping statements about U.S. nuclear policy over Twitter. Congress must act to preserve global stability by restricting the circumstances under which the U.S. would be the first nation to use a nuclear weapon. Our Founders created a system of checks and balances, and it is essential for that standard to be applied to the potentially civilization-ending threat of nuclear war. I am proud to introduce the Restricting First Use of Nuclear Weapons Act of 2017 with Sen. Markey to realign our nation’s nuclear weapons launch policy with the Constitution and work towards a safer world.”

Upon introduction of this legislation, Senator Markey issued the following statement:

“Nuclear war poses the gravest risk to human survival. Yet, President Trump has suggested that he would consider launching nuclear attacks against terrorists. Unfortunately, by maintaining the option of using nuclear weapons first in a conflict, U.S. policy provides him with that power. In a crisis with another nuclear-armed country, this policy drastically increases the risk of unintended nuclear escalation. Neither President Trump, nor any other president, should be allowed to use nuclear weapons except in response to a nuclear attack. By restricting the first use of nuclear weapons, this legislation enshrines that simple principle into law. I thank Rep. Lieu for his partnership on this common-sense bill during this critical time in our nation’s history.”

— Joe


California Values Act signed into law, makes California a sanctuary state

California Governor Jerry Brown signed SB 54, the California Values Act. [Signing Statement] The Act, reportedly the most far-reaching of its kind in the country, forbids local and state law enforcement officers from carrying out practices such as asking about someone’s immigration status, handing a person over to federal immigration authorities if there’s no warrant or establishment of probable cause and disclosing personal information about someone if it isn’t already public information. The law also prevents local and state law enforcement from detaining someone over an immigration hold request. — Joe

Senate Republicans counter Dream Act with SUCCEED Act for undocumented children

Recently, Senators Thom Tillis (R-NC) and James Lankford (R-OK) introduced the SUCCEED Act (Solution for Undocumented Children through Careers, Employment, Education and Defending our nation) [FAQ], a merit-based solution to address the legal uncertainty facing undocumented children. The SUCCEED Act includes a longer path to citizenship for DACA recipients, as compared to the Dream Act. Only after 15 years of legal status, including at least five years as a green card holder, could an applicant apply for citizenship. — Joe

Trump’s tax reform framework

Today President Donald J. Trump shared how middle-income families will win when we cut their taxes, and make American businesses competitive again. The President outlined a framework with Congress that will create a simpler and fairer tax code that fuels job creation, higher wages, and economic growth, and will lead to the lowest marginal income tax rate for small and mid-size businesses in more than 80 years. — Treasury Secretary Steven T. Mnuchin, WTAS: Widespread Praise for President Trump’s Unified Framework for Tax Reform

Yesterday, the White House Press Secretary released the Administration’s Unified Framework for Fixing our Broken Tax Code [one-page summary]. The Unified Framework “serves as a template for the tax-writing committees that will develop legislation through a transparent and inclusive committee process. The committees will also develop additional reforms to improve the efficiency and effectiveness of tax laws and to effectuate the goals of the framework.” — Joe

CRS Report: An Overview of Recent Tax Reform Proposals

From the summary of An Overview of Recent Tax Reform Proposals (Feb. 28, 2017 R44771):

Many agree that the U.S. tax system is in need of reform. Congress continues to explore ways to make the U.S. tax system simpler, fairer, and more efficient. In doing so, lawmakers confront challenges in identifying and enacting policies, including consideration of competing proposals and differing priorities. To assist Congress as it continues to debate the intricacies of tax reform, this report provides a review of legislative tax reform proposals introduced since the 113th Congress.

Although no comprehensive tax reforms have been introduced into legislation yet in the 115th Congress, two 2016 reform proposals appear to be at the forefront of current congressional debates—the House GOP’s “A Better Way” tax reform proposal, released in June 2016, and President Trump’s campaign reform proposal, released in September 2016. As with most recent tax reform proposals, both of these plans call for lower tax rates coupled with a broader tax base. In either case, numerous technical details would need to be addressed before either plan could be formulated into legislation.

— Joe

What’s in the new Graham-Cassidy bill?

Here’s the text of the new Graham-Cassidy bill and a summary of its provisions from Senator Cassidy’s website. For an analysis, see Timothy Jost’s New Graham-Cassidy Bill: A Last GOP Shot At ACA Repeal And Replace Through Reconciliation, Health Affairs Blog (Sept 13, 2017), noting “The fundamental idea of the Graham-Cassidy bill is to terminate the ACA’s Medicaid expansions, premium tax credits, cost-sharing reduction payments, small business tax credits, and Basic Health Program as of 2019 and redistribute the money funding those programs to the states, using a complex formula described below. The bill would also impose per capita caps on Medicaid funding generally, also offering the states the alternative of a broader Medicaid block grant. Finally, the bill contains a number of tax cuts and health care regulation changes taken from earlier Senate repeal bills.” — Joe

Sanders introduces Medicare for All Act of 2017 (Text of the bill)

“This is a pivotal moment in American history,” wrote Sen. Bernie Sanders (I-VT) in his NYT think piece yesterday. “Do we, as a nation, join the rest of the industrialized world and guarantee comprehensive health care to every person as a human right? Or do we maintain a system that is enormously expensive, wasteful and bureaucratic, and is designed to maximize profits for big insurance companies, the pharmaceutical industry, Wall Street and medical equipment suppliers?” In his Medicare for All: Leaving No One Behind proposal, Sanders states that

Americans need a health care system that works for patients and providers. We need to focus our federal investments on training the health care providers. We need to ensure a strong health care workforce in all communities now and in the future. We need to build on the strength of the 50 years of success of the Medicare program. We need a health care system that significantly reduces overhead, administrative costs and complexity. We need a system where all people can get the care they need to maintain and improve their health when they need it regardless of income, age or socioeconomic status. We need a system that works not just for millionaires and billionaires, but for all of us.

Yesterday, Sanders introduced the Medicare for All Act of 2017 [text]. “Under this legislation, every family in America would receive comprehensive coverage, and middle-class families would save thousands of dollars a year by eliminating their private insurance costs as we move to a publicly funded program,” wrote Sanders in his NYT think piece. “The transition to the Medicare for All program would take place over four years. In the first year, benefits to older people would be expanded to include dental care, vision coverage and hearing aids, and the eligibility age for Medicare would be lowered to 55. All children under the age of 18 would also be covered. In the second year, the eligibility age would be lowered to 45 and in the third year to 35. By the fourth year, every man, woman and child in the country would be covered by Medicare for All. … Guaranteeing health care as a right is important to the American people not just from a moral and financial perspective; it also happens to be what the majority of the American people want. According to an April  poll by The Economist/YouGov, 60 percent of the American people want to ‘expand Medicare to provide health insurance to every American,’ including 75 percent of Democrats, 58 percent of independents and 46 percent of Republicans.”

“To be clear: Sanders’ single payer plan has zero chance of passing through the Republican-controlled Senate. No GOP senator will vote for it and it’s not at all clear that many of the 10 Democrats up in 2018 in states that President Donald Trump won in 2016 will either,” predicted CNN’s Chris Cillizza in How Bernie Sanders is taking over the Democratic Party. WaPo’s David Weigel concurred. — JH

A taxonomy for tax loopholes

From the abstract of Heather Field’s A Taxonomy for Tax Loopholes, 55 Houston Law Review __, 2018 Forthcoming:

[T]his article demonstrates that people have widely divergent views about what tax loopholes are. Thus, people criticizing loopholes often talk past each other and engage in the tax equivalent of schoolyard name-calling. The response to this problem is not, however, to try to define the concept of “tax loopholes” with precision. Such an endeavor is pointless. Instead, this article provides a taxonomy for translating the rhetoric of “tax loopholes” into meaningful tax policy discourse. This taxonomy posits that any reference to a “tax loophole” should be understood in two dimensions — the tax policy objection and the target of the criticism. Using numerous examples from the popular/political discourse and the academic literature, this article catalogs alternatives on each dimension. Categorizing any purported “tax loophole” using this taxonomy provides a more productive framing of whatever critique is implied by any use of the “loophole” label, thereby enabling the elevation of the quality of the conversation about the individual tax preference. This taxonomy may be particularly useful now, as our political leaders embark on efforts to reform the tax law, because the taxonomy can help us better understand and advance the debate that will certainly surround those reform efforts.

Interesting. — Joe

Does the Visual Artists Rights Act of 1990 apply to the removal of confederate monuments?

“There’s no issue of public interest that copyright law cannot make worse. So let me ruin your day by pointing out there’s a copyright angle to the monument controversy: the Visual Artists Rights Act (VARA), a 1990 addition to the copyright statute that allows certain artists to control what happens to their art long after they’ve created it and no longer own it,” wrote Techdirt’s Cathy Gellis in Because Of Course There Are Copyright Implications With Confederacy Monuments. On The Faculty Lounge, Brian Frye discusses the applicability of of VARA to the current controversy. From Moral Rights & Confederate Monuments:

[T]he question becomes whether removing and relocating such a monument would infringe the VARA right of integrity. Under the canonical interpretation, I doubt it. Confederate monuments are typically stand-alone works that can easily be removed in one piece without damaging the work. But what about “site-specificity”? Artists argue that the right of integrity should extend to the physical location of works, if the meaning of the work depends on its physical location. But many Confederate monuments were deliberately placed in civic spaces in order to communicate a particular message: endorsement of Jim Crow, segregation, and racism. If a Confederate monument is moved out of a place of civic honor, surely that affects its meaning.

— Joe

Drastic cuts proposed for workers aged 49 and under by H.R. 6489, the Social Security Reform Act

Rep. Sam Johnson, R-TX, the chairman of the Social Security Subcommittee of Ways and Means, has introduced H.R. 6489, the Social Security Reform Act of 2016. See Johnson’s justification. If passed, the legislation would negatively affect retirement plans for American workers aged 49 and under. The bill would lower Social Security benefits by one-third to retirees and those drawing Social Security Disability Retirement and raise their retirement from 67 to 69 years old. The bill would also cut seniors’ cost of living adjustments. On the current retirement age requirements see this CRS report. — Joe