Capitol to Capitol | Feb. 6, 2017


Capitol to CapitolFilibuster’s Fate May Hinge on Supreme Court Battle

When Justice Antonin Scalia unexpectedly died on Feb. 20 of last year, he left a vacancy on the U.S. Supreme Court that has yet to be filled. President Barack Obama nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to the vacant seat in March. Republican leaders, however, argued that the next president should pick the nominee and promised not to consider any Obama nominee. They kept that promise and did not hold a hearing or vote on the Garland nomination. Last Tuesday, President Donald Trump nominated Neil Gorsuch, a federal appellate judge on the 10th U.S. Circuit Court of Appeals, to the vacant seat. His confirmation will likely be the central focus of the Senate over the coming weeks or even months.

Unlike other presidential nominees, if a Senator decides to filibuster a nominee for the U.S. Supreme Court, 60 votes, rather than a simple majority vote, would be required to pass a motion to end debate, which would then be followed by a vote on the nomination itself. Given the slim 52-48 Republican majority, if a Senator filbusters, at least eight Democrats will have to vote to end debate in order for Gorsuch to be confirmed. If they do not, Republicans may use a tactic they are loathe to employ: the nuclear option. Similar to the rules change that then-Senate Majority Leader Harry Reid (D-Nev.) employed in 2013 for all presidential nominees other than for the Supreme Court, the nuclear option would change rules to require a simple majority to confirm Supreme Court nominees. And while Republicans, including Senate Majority Leader Mitch McConnell (R-Ky.), would prefer to keep the 60-vote threshold, they have signaled that they are open to changing the Senate rules if Democrats block Gorsuch’s confirmation.

While it is too early to see how Democrats plan to address the confirmation, if they obstruct and force the Republicans to change the rules, it would forever change Senate procedure. Moreover, a rules change could set the precedent to also remove the 60-vote threshold required to pass legislation. If that happened, both chambers of Congress would govern similarly: by majority rule.

D.Y.K.? Senator James Shields is the only person in United States history to serve as a U.S. senator for three different states: Illinois, Minnesota and Missouri.

Executive Order Takes Aim at Federal Regulations

Last Monday, Trump’s issued a “2-for-1” executive order that requires that for every proposed federal regulation, two must be “identified” for repeal. Also, the cost of the new regulation must be offset by the cost savings of the regulations proposed for elimination. Unsurprisingly, reaction to the order has been mixed. Supporters argue that fewer regulations will be good for businesses and the economy. Opponents argue that eliminating regulations could harm Americans.

Execution of the executive order will be harder than it appears at first glance. For one, some laws require agencies to write regulations and eliminating them could face legal challenges. Moreover, the Administrative Procedures Act  requires that eliminating federal regulations must follow the same lengthy and cumbersome process as adopting them. This process means an agency must publish the proposed repeal in the Federal Register, then solicit comments from interested parties, and then read and respond to comments. This process typically takes a year, but can be much longer for more complex and controversial rules.

Congress Employs Congressional Review Act to Reject Late Obama Rules

The 115th Congress plans to review and reject rules proposed late in the Obama administration by utilizing the Congressional Review Act (CRA). The CRA allows Congress and the new president to abolish any federal regulation finalized on, or after June 13, 2016, by a simple majority vote in both chambers. Not only does the CRA remove the rule in question, but also prohibits a federal agency from “reissuing” the same regulation in the future, or promulgating a regulation that is “substantially” similar, unless the new or revised regulation is “specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” Congress has considered few CRA joint resolutions of disapproval since its enactment, but only one agency final rule has been successfully overturned since. The Congressional Research Service compiled a list of over 50 finalized ruled rules that are subject to removal by the CRA.

NCSL to Support Disapproval of Department of Education Rules

NCSL will send a letter of support this week for H.J. Res. 58, a resolution of disapproval that blocks U.S. Department of Education regulations regarding teacher preparation institutions under the Congressional Review Act. The resolution was introduced by Higher Education and Workforce Development Subcommittee Chairman Brett Guthrie (R-Ky.) and would prevent implementation of a rule finalized in October that NCSL previously commented “goes beyond the statutory requirements of the Higher Education Act and fails to recognize the authority of states and localities to govern education.”

NCSL Contacts: Lee Posey, Lucia Bragg

D.Y.K.? The flag code of the United States stipulates that if a new state is admitted to the union, a new star will be added to the flag, but not until the first Fourth of July following the state's formal admission into the union.

The Road to Tax Reform Gets Bumpier

Senate Finance Chairman Orrin Hatch (R-Utah) told business leaders at the U.S. Chamber of Commerce last week that the Senate will work on its own tax reform plan rather than waiting for the House plan to pass. The chairman and other senior Republican senators, including Senate Majority Whip John Cornyn (R-Texas), have expressed reservations about the controversial border adjustability provision that is the centerpiece of the House proposal. Hatch noted the Senate tax reform proposal “will almost surely end up looking different than what passes in the House.” He did, however, praise House Ways and Means Committee Chairman Kevin Brady’s (R-Texas) tax reform efforts, which have the support of House Speaker Paul Ryan (R-Wis.), and noted that the House plan “would be much better than what we currently have.”

On Friday, Trump told a group of CEOs and economic experts at the White House there will be a tax reform bill “very soon.” He did not indicate, however, what the bill would look like or whether or not the bill would include the border adjustability provision.

NCSL Contacts: Max Behlke, Jake Lestock

Immigration Legislation in the 115th Congress

While there has been a lot of attention paid to the president’s immigration and refugees executive orders, Congress has not been idle. Collectively, more than 80 bills have been introduced in the House and Senate since the beginning of January by both Democrats and Republicans on a variety of immigration topics such as sanctuary cities, repatriation, building the wall and visa issues. None of the bills has had a hearing or a vote, but for the president’s executive orders to be carried out, Congress must act. NCSL will post a listing of these bills in the next few days.

Read NCSL’s summary of executive orders on immigration.

NCSL Contacts: Susan Parnas Frederick, Danielle Dean

D.Y.K.? President Andrew Jackson taught his parrot how to curse to the extent that the parrot had to be removed from the president's funeral because it was cursing too much.

Trump’s Cabinet

Confirmations: Elaine Chao, who is the wife of Senate Majority Leader McConnell, became secretary of transportation last Tuesday following a 93-6 vote that followed one of the least contentious confirmation hearings of the past few weeks. In contrast, Rex Tillerson, who was confirmed as secretary of state last Thursday by a margin of 56 to 43, garnered the most "no" votes for the nation's chief diplomat since Henry Clay was confirmed in 1825.

Highlights from last week’s hearings: Last week’s nomination hearings were some of the most heated to date. With Democrats refusing to show up for committee votes of three of Trump’s nominees, Senate Republicans suspended their own committee rules, which require at least one member of the minority party to be present for committee votes, in order to send the nominees to the full Senate for consideration. Democrats did not attend the Finance Committee votes for Tom Price, who is slated to lead the Department of Health and Human Services, and Steven Mnuchin, who is poised to become the next secretary of the treasury. Democrats on the Environment and Public Works Committee also remained absent for the committee vote for Scott Pruitt, who was nominated to become the next administrator of the Environmental Protection Agency.

Of the nominees, Betsy DeVos, nominated for secretary of education, is expected to have the most contentious floor vote. Following the commitment last week of Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) to vote against her, the full Senate vote for confirmation stands at 50-50. Collins and Murkowski are withholding their support because they believe DeVos lacks a comprehensive familiarity with public school issues beyond her signature school choice focus. Senate rules require an additional 30 hours of debate following a cloture vote, which took place early Friday morning, before a final vote can occur later today or tomorrow. Should the count remain split, Vice President Mike Pence would presumably break the tie in favor of confirmation. If that occurs, it will be the first time in American history that the vice president was needed to cast the deciding vote for a member of the president’s cabinet.

Finally, on a party line 11-9 vote, the Senate Judiciary Committee voted to advance the nomination of Jeff Sessions to be attorney general. It is unclear, however, when the full Senate will vote on Sessions’ confirmation. GOP leadership is relying on Sessions’ votes for the more controversial nominees before he resigns from the Senate to assume his role at the head of the Justice Department.

This week: Eleven Trump nominees are waiting for up-or-down votes on the Senate floor. David Shulkin, nominee for secretary of veterans affairs, is waiting for a committee vote and nominees for U.S. trade representative, secretary of agriculture and secretary of labor are all waiting for hearings.

NCSL Letters: NCSL joined other national associations that represent state and local officials on a letter that asks that the funding mechanism for Government Accounting Standards Board (GASB) not be considered as part any overhaul of the Dodd-Frank Act.

Read the Jan. 30, 2017, of Capitol-to-Capitol.

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Capitol to Capitol is a publication of the National Conference of State Legislatures, the premier bipartisan organization representing the interest of states, territories and commonwealths. The conference operates from offices in Denver and Washington, D.C.