Category Archives: Legislation in the News

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

California bill would extend and strengthen sanctuary cities protections statewide

From the Legislative Counsel’s digest of SB 54:

This bill would, among other things and subject to exceptions, prohibit state and local law enforcement agencies, including school police and security departments, from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified. The bill would require, by April 1, 2018, the Attorney General, in consultation with the appropriate stakeholders, to publish model policies limiting assistance with immigration enforcement to the fullest extent possible for use by public schools, public libraries, health facilities operated by the state or a political subdivision of the state, and courthouses, among others. The bill would require all public schools, health facilities operated by the state or a political subdivision of the state, and courthouses to implement the model policy, or an equivalent policy. The bill would state that all other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged to adopt the model policy. The bill would require, every 6 months, that a law enforcement agency that chooses to participate in a joint law enforcement task force, as defined, submit a report pertaining to task force operations to the Department of Justice, as specified. The bill would require the Attorney General, by March 1, 2019, and twice a year thereafter, to report on the types and frequency of joint law enforcement task forces, and other information, as specified, and to post those reports on the Attorney General’s Internet Web site. The bill would require the Board of Parole Hearings or the Department of Corrections and Rehabilitation, as applicable, to notify United States Immigration and Customs Enforcement of the scheduled release on parole or post-release community supervision, or rerelease following a period of confinement pursuant to a parole revocation without a new commitment, of all persons confined to state prison serving a current term for the conviction of a violent or serious felony, or who has a prior conviction for a violent or serious felony.

— Joe

New bill, if passed, would offer Congressional internships to recent law school grads

Drafted by four senators along with Larry Kramer, former Dean of Stanford Law School; Robin West, law professor at Georgetown University Law Center; Bill Treanor, Dean of Georgetown University Law Center; Abbe Gluck, law professor at Yale Law School; and Dakota Rudesill, law professor at Ohio State, S. 1604, A bill to establish the Daniel Webster Congressional Clerkship Program, was introduced in the US Senate on July 20, 2017. It is intended to attract law school grads to learn more about the legislative process. From the bill’s statement of Congressional findings:

(1) Each year, many of the most talented law school graduates in the United States begin their legal careers as judicial law clerks.

(2) The judicial clerkship program has given the judiciary access to a pool of exceptional young lawyers at a relatively low cost.

(3) These same lawyers then go on to become leaders of their profession, where they serve a critical role in helping to educate the public about the judiciary and the judicial process.

(4) The White House, the administrative agencies of the executive branch, the Administrative Office of the United States Courts, the Federal Judicial Center, and the United States Sentencing Commission all operate analogous programs for talented young professionals at the outset of their careers.

(5) Congress is without a similar program.

(6) At a time when our Nation faces considerable challenges, Congress and the public would benefit immeasurably from a program, modeled after the judicial clerkship program, that engages the brightest young lawyers in the Nation in the legislative process.

Hope the bill passes. — Joe

Who is Stephen Miller?

At 31, Stephen Miller is less than half President Trump’s age but he serves as the president’s senior advisor for policy. His credentials include having served as a press secretary to Tea Party movement supporters Congresswoman Michele Bachmann and Congressman John Shadegg and communications director for then-Alabama senator, Attorney General Jeff Sessions. He is credited with authoring the president’s inaugural address and being the chief architect of Trump’s executive order restricting immigration from several Muslim-majority Middle Eastern countries.

The best profile piece on Miller I found was written by Julia Ioffee in Politico (June 27, 2016). Here are a couple of snips:

He’s deeply connected to some of the most powerful insurgent threads in the Washington GOP, most notably Alabama Senator Jeff Sessions and the Breitbart media machine. As an aide on Capitol Hill, he was a behind-the-scenes architect of the successful effort to kill comprehensive immigration reform in 2014. And while it’s hard to gauge how much Trump is amenable to influence by anyone—at least, by anyone that he didn’t beget—there is no question that Miller is deep, and serious, on the one question that most drives Trump’s unlikely campaign.


But Miller also cuts a deeply unsettling figure, even to many in his own party. His nine-year career working for some of the most politically fringe figures on the Hill—he also worked for Michele Bachmann and helped David Brat in his primary defeat of Eric Cantor—was preceded by a trail of writings and provocations that go all the way back to high school, one that has raised the eyebrows of even conservative Republicans.

Ioffee adds in her Politico article, The Believer: How Stephen Miller went from obscure Capitol Hill staffer to Donald Trump’s warm-up act—and resident ideologue:

There is something eerily vintage about Miller’s stump speeches. The combination of their substance—vilifying immigrants as killers, the promise of nativist glory days ahead—and their delivery with a calm face around a loud, droning mouth, slicked-back hair and sharp suit, floridly invoking powerful cabals against the people: All of it harks back to an earlier time. It’s as if the video should be in black and white, and the microphone in front of Miller an antique, metallic affair. This is an image Miller assiduously cultivates, smoking like a chimney and dressing in suits that earned him the nickname “Mad Men” on the Hill. “You almost want to put him in a previous era,” says Marcus Peacock, who worked with Miller on the Senate Budget Committee.

Finally, an excerpt from yesterday’s White House press conference involving Stephen Miller and a first-generation American born of Cuban immigrants, Jim Acosta of CCN may be insightful. [Transcript here] — Joe


Trump supports most significant change in immigration law since passage of the Immigration and Nationality Act of 1965

Yesterday, President Trump came out in support of Reforming American Immigration for Strong Employment Act or the RAISE Act, S. 354. If passed, the RAISE Act would cut immigration in half in 10 years and ratchet up immigration eligibility requirements such as giving preference to skilled younger applicants who speak English as a second language. If passed, the RAISE Act would be the most significant change to immigration law since the passage fo the Immigration and Nationality Act of 1965. See Let’s Move Beyond Russia, White House Turmoil, Etc: President Trump pushes to sharply cut the number of legal immigrants and move U.S. to a “merit-based” immigration system on ImmigrationProf Blog for more information. — Joe

Trump signs off on “seriously flawed” Russia, Iran, and North Korea Sanctions Act of 2017

From the president’s wacky campaign rally style signing statement:

[T]he bill remains seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate.  Congress could not even negotiate a healthcare bill after seven years of talking.  By limiting the Executive’s flexibility, this bill makes it harder for the United States to strike good deals for the American people, and will drive China, Russia, and North Korea much closer together.  The Framers of our Constitution put foreign affairs in the hands of the President.  This bill will prove the wisdom of that choice.

Yet despite its problems, I am signing this bill for the sake of national unity.  It represents the will of the American people to see Russia take steps to improve relations with the United States.  We hope there will be cooperation between our two countries on major global issues so that these sanctions will no longer.

I built a truly great company worth many billions of dollars.  That is a big part of the reason I was elected.  As President, I can make far better deals with foreign countries than Congress.

For background on the Russia sanctions bill, see the LA Times story, The Russia sanctions bill, explained: ‘Putin is kind of giving up hope’. — Joe

Reforming federal bail law

Bail reform is in the wind. On any given day, an estimated half million people are detained across the U.S. because of an inability to post bail. The costs of pre-trial detention are enormous, both in terms of taxpayer money and the impact it has on the lives of detainees, their families, and their neighborhoods. The No Money Bail Act of 2017, H.R. 1437, provides the following Congressional findings:

(1) Nearly 60 percent of the inmates in jails in the United States are pretrial detainees who have not been convicted of a crime, an estimated 75 percent of whom have been charged with nonviolent crimes.

(2) Under current bail systems that use payment of money as a condition of pretrial release, nearly 50 percent of the most dangerous pretrial detainees are released without supervision, according to a study by the Arnold Foundation.

(3) Throughout the Nation, those with money can buy their freedom while poor defendants remain incarcerated awaiting trial.

(4) Pretrial detention costs State and local governments an estimated $14,000,000,000 each year.

(5) Pretrial detention should be based on whether the accused is likely to fail to appear in court or is a threat to public safety, not the ability to pay money as a condition of pretrial release.

(6) The States, the United States Department of Justice, law enforcement agencies, public officials, and community groups should collaborate to develop pretrial detention systems that improve public safety, reduce costs, and discourage criminal behavior.

And recently, S. 1593, A bill to provide grants to States and Indian tribes to reform their criminal justice system to encourage the replacement of the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes, was submitted in the Senate.

With the pending federal bail reform legislation in play, the Congressional Research Service has released Bail: An Overview of Federal Criminal Law, (July 31, 2017, R40211): From the introduction:

This is an overview of the federal law of bail. Bail is the release of an individual following his arrest upon his promise—secured or unsecured; conditioned or unconditioned—to appear at subsequent judicial criminal proceedings. An accused may be denied bail if he is unable to satisfy the conditions set for his release. He may also be denied bail if the committing judge or magistrate concludes that no amount of security or any set of conditions will suffice to ensure public safety or the individual’s later appearance in court.

The federal bail statute layers the committing judge’s or magistrate’s bail options after arrest and before trial. He may release the individual upon his promise to return—that is, on personal recognizance or under an unsecured appearance bond. Alternatively, the judge or magistrate may condition the individual’s release on the least restrictive possible combination of individual or statutory conditions. The statute, however, creates a presumption against release when the individual has been charged with a serious drug, firearms, or terrorist offense. In the case of these and other serious offenses, the judge or magistrate may deny release on bail if he decides, after a hearing, that no set of conditions will guarantee public safety or the individual’s return to court. The judge or magistrate may also deny the individual bail in order to transfer him for bail, parole, or supervised release revocation proceedings. Bail is available to a more limited extent after the individual has been convicted and is awaiting a pending appeal.

Federal law also authorizes the arrest, bail, or detention of individuals with evidence material to the prosecution of a federal offense. With limited variations, federal bail laws apply to arrested material witnesses.

Although not specifically mentioned in the federal bail statute, bail is available in extradition cases under a long-standing Supreme Court precedent which holds that “bail should not ordinarily be granted in cases of foreign extradition” except under “special circumstances.”

— Joe

Delaware passes blockchain legislation

The Delaware General Assembly has passed a historic bill that legalizes the right to track stocks in a blockchain. The legislation is expected to be signed into law this month. Here’s the bill. — Joe

Text of discussion draft of Senate health-care bill released

Here it is. — Joe

House set to vote on the Financial CHOICE Act, H.R. 10, to repeal Dodd-Frank Act requirements

The House of Representatives is set to vote this week on The Financial CHOICE Act, H.R. 10, an extensive bill intended to rewrite the Dodd-Frank Act and roll back hundreds of other financial regulations. The Financial CHOICE Act in the 115th Congress: Selected Policy Issues (May 10, 2017, R44839) highlights major proposals included in the bill but is not a comprehensive summary. In general, H.R. 10 proposes changes that can be divided into two categories: (1) changes to financial policies and regulations and (2) changes to the regulatory structure and rulemaking process. See also, The Financial CHOICE Act (H.R. 10) and the Dodd-Frank Act (May 22, 2017, IN10695) and Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150).

The future of H.R. 10 in the Senate is uncertain. According to published reports, Senate Democrats are likely to mount a filibuster against it while Senate Republicans are expected to offer their own financial regulatory reform package. — Joe

CRS guides for researching federal legislation

Two regularly updated research guides produced by the Congressional Research Service were updated in the last year.

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (Feb. 6, 2017, RL33895) introduces congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites.

Legislative History Research: A Guide to Resources for Congressional Staff (July 6, 2016, R41865) provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

See also, The Framing of the United States Constitution: A Beginner’s Guide on In Custodia Legis.

Useful. — Joe

New CBO analysis of American Health Care Act, H.R. 1628, as passed by the House

The Congressional Budget Office released its analysis of the health-care bill that passed the House of Representatives earlier this month. Here’s the text. For an analysis, see NPR’s GOP Health Plan Would Leave 23 Million More Uninsured, Budget Office Says. — Joe

UELMA update

The Uniform Electronic Legal Material Act (UELMA) has been enacted in 16 states and the District of Columbia. AALL has updated its handy UELMA Enactment Chart, which includes information about the covered materials, cost, and effective date of the act in each state. — Joe

Is the National Popular Vote Compact a better way to elect the next president?

“The National Popular Vote Compact would bring every state and every voter into play. National candidates would be incentivized to campaign all over the nation, not just in today’s ‘battleground’ states.” — Karen Hobert Flynn, A Better Way to Pick the Next President: The National Popular Vote Compact, The Daily Beast, Nov. 25, 2016.

In More states consider working around the Electoral College (Dec. 23, 2016), AP’s Susan Haigh wrote “Frustrated after seeing another candidate secure the presidency without winning the national popular vote, mostly Democratic lawmakers in several capitols want their states to join a 10-year-old movement to work around the Electoral College.” That movement centers on the National Popular Vote Compact (NPVC). The NPVC is an interstate compact in which member states will allocate all of their electoral votes to the winner of the national vote, as opposed to the traditional state vote. It relies on the Constitution’s grant of authority to the states in Article II, Section 1, to appoint presidential electors “in such Manner as the Legislature thereof may direct…. ”

Here’s how it would work. Any state that joins the NPV compact pledges to award all its electoral votes to the winner of the national popular vote in all 50 states and the District of Columbia, regardless of who wins in that particular state. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. If enacted by enough states, the NPVC would all but put an end to the Electoral College, and we might be able move to a direct national vote for president, without a constitutional amendment. See generally, the CRS report, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact (Dec. 12, 2014, R43823).

Ten states (CA, HI, IL, MA, MD, NJ, NY, RI, VT, WA) and the District of Columbia, which jointly control 165 electoral votes, have enacted into law the Compact. It has passed at least one house in 12 additional states with 96 electoral votes (AR, AZ, CO, CT, DE, ME, MI, NC, NM, NV, OK, OR)  and been approved unanimously by committee votes in two additional states with 27 electoral votes (GA, MO). See the National Public Vote website. This tally has led Salon’s Maegan Carberry to conclude “Optimistically, we’re 23 new electoral votes away from ridding ourselves of the Electoral College. It’s something that could be managed through strategically pressuring a handful of state representatives.” Quoting from Why doesn’t anyone know we’re incredibly close to replacing the Electoral College with the popular vote? Salon, May 7, 2017. See also, Chris Bowers, The surprisingly realistic path to electing the president by national popular vote by 2020, Daily Kos, Nov. 9, 2016. But see, Mark Joseph Stern, Yes, We Could Effectively Abolish the Electoral College Soon. But We Probably Won’t, Slate, Nov. 10, 2016.

Realistic? Hell if I know. Certainly the Founding Fathers opposed the direct election of the president. But Vikram D. Amar’s The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, __ Georgetown Law Journal ___  addresses and debunks various criticisms of the National Popular Vote Compact movement. The essay then “turns to the key question of whether a national popular vote with different voting rules in each state is workable, and in particular the sources of power Congress has to remedy any problems with the design of the current National Popular Vote Compact plan being adopted by many states. There are good arguments in favor of Congressional power to iron out difficulties, especially once a compact is up and running. For this reason, the idea floated by some that only a constitutional amendment can bring about a national popular vote is misguided.” Quoting from the abstract. See also, Michael Brody’s Circumventing the Electoral College: Why the National Popular Vote Interstate Compact Survives Constitutional Scrutiny Under the Compact Clause. But see, Norman R. Williams’ Why the National Popular Vote Compact Is Unconstitutional, 2012 BYU L. Rev. 1523 and John Samples’ A Critique of the National Popular Vote Plan for Electing the President, Cato Policy Analysis Series, No. 622, Oct. 13, 2008.

Good idea? Doable? For an example of the legislative enactment of the NPVC, see the text of Maryland’s legislation. — Joe

Puerto Rico files for debt restructuring

The debt restructuring petition was filed by Puerto Rico’s financial oversight board in the US District Court in Puerto Rico on Wednesday under Title III of PROMESA. Title III provides a court debt restructuring process akin to US bankruptcy protection. Puerto Rico is barred from a traditional municipal bankruptcy protection under Chapter 9 of the Bankruptcy Code. The action sent Puerto Rico, whose approximately $123 billion in debt and pension obligations far exceeds the $18 billion bankruptcy filed by Detroit in 2013, into uncharted ground. Enacted only last summer the Puerto Rico Oversight, Management, and Economic Stability Act or PROMESA, Pub. L. No. 114-187 was designed help insolvent territories like the Commonwealth restructure its billions in debt and pension obligations. Next step, Chief Justice Roberts will appoint a life-tenured judge to hear the case.

CRS produced this backgrounder on PROMESA. See also Melissa Jacoby’s Presiding Over Municipal Bankruptcies: Then, Now, and Puerto Rico, 91 American Bankruptcy Law Journal __, 2017 Forthcoming, Why Puerto Rico Will Likely Rely On PROMESA Title III, Law360, March 1, 2017 and Issues To Expect In A Title III Puerto Rico Restructuring, Law360, March 8, 2017. — Joe

‘Too big to fail’ and the Financial CHOICE Act of 2017, H. R. 10

As the House Committee on Financial Services meets today to begin the mark-up of the Financial CHOICE Act of 2017, H.R. 10, [Committee memorandum], “Too Big To Fail” will be in the news again because of H.R. 10’s Dodd-Frank Act repeal provisions. Systemically Important or “Too Big to Fail” Financial Institutions (Jan. 4, 2017, R42150) discusses the economic issues raised by “Too Bill To Fail,” broad policy options, and policy changes made by the relevant Dodd-Frank provisions. — Joe