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Capitol to Capitol | May 1, 2023

May 1, 2023

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NCSL Updates

NCSL Letter to Congress on Farm Bill Reauthorization and Town Hall

The letter outlines NCSL’s priorities regarding conversation and forest management programs, research and development, agriculture workforce, economic development and business creation for rural communities, and the Supplemental Nutrition Assistance Program. Read the letter here.

NCSL State-Federal Affairs Program staff also participated in an online NCSL Town Hall outlining the history and importance of the farm bill, reviewing the major provisions and highlighting NCSL’s advocacy efforts. Watch here.  

Congressional Updates

House Republicans Unveil Border Security Bill

Last month, House Republicans introduced the Border Security and Enforcement Act of 2023, a 137-page bill proposing major changes to asylum eligibility, border security, migrant detention and the Deferred Action for Childhood Arrivals (DACA) program. The bill was introduced by Rep. Tom McClintock (R-Calif.) and co-sponsored by Rep. Andrew Biggs (R-Ariz.), both hailing from states along the southern border. Key provisions of the bill include:

  • Restricting asylum eligibility for migrants who passed through other countries en route to the United States.
  • Requiring migrants to seek asylum at a designated port of entry instead of surrendering after crossing the border.
  • Imposing a $50 fee on adult asylum applications.
  • Reinstating family detention for the duration of the immigration court proceedings.
  • Increasing E-Verify requirements.
  • Limiting the president’s parole authority.

The proposed limits on the Biden administration's parole authority would make demographic-based parole programs, including DACA and Ukrainian refugee relocation, unlawful. Many of the bill’s provisions are derived from Trump-administration policies. There is disagreement among House Republicans on whether the bill goes too far in limiting asylum claims. Read more.

Debt Limit Debate

On April 26, the House narrowly passed the Limit, Save, Grow Act by a vote of 217-215. The GOP-led legislation seeks to raise the debt ceiling while enacting discretionary spending caps and rescinding COVID-19 funds, among other measures. The White House continues to state that the debt limit is not negotiable, and Senate Democrats have demanded a clean debt limit bill.

In a statement, NCSL urges policymakers to “address the U.S. statutory debt ceiling and consider serious, long-term reforms that will reduce the national debt and put the country on more sustainable fiscal footing” and to “ensure states are not disproportionately or unreasonably burdened by federal deficit reduction.”

NCSL’s Brian Wanko recently wrote on debt and default in State Legislature News. Read more.

Congress Fails to Override Presidential Veto of WOTUS

The House of Representatives failed to achieve the two-thirds majority needed to override President Biden’s veto of the Congressional Review Act resolution of disapproval that overturns the Waters of the United States (WOTUS) rulemaking. The rule, the Revised Definition of “Waters of the United States,” aims to determine the scope of federal authority to regulate such water, and when states, local governments and others must seek federal permits to develop land because it contains such waters. For more information on the CRA, visit NCSL’s Congressional Review Act | Overview and Tracking webpage, and for more information on the WOTUS rulemaking, read NCSL’s Information Alert.

Administration Updates

US Unveils Wide-Ranging Plan to Transition to Pre-Pandemic Border Policies, Debuts Regional Processes

The Departments of State and Homeland Security issued a fact sheet describing their plan to reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for the protection of migrants, and facilitate the safe, orderly and humane processing of migrants once the Title 42 public health order expires on May 12. The agencies will revert to Title 8 processing for people at the border. Those who unlawfully cross the southwest border will be processed under Title 8 expedited removal authorities, will be barred from reentry into the U.S. for a minimum period of five years, and will be presumed ineligible for asylum absent an applicable exception. The agencies are encouraging people to use lawful pathways for entry into the U.S. They are announcing additional lawful pathways such as expanded access to the CBPOne App to appear at a U.S. port of entry, new family reunification parole processes and doubling the number of refugees seeking to enter the U.S. from the Western Hemisphere. The agencies also seek to join regional partners across the Western Hemisphere, including Columbia and Guatemala, in combatting criminal networks, expeditiously removing migrants lacking authorization to remain in the country and thwarting smuggler misinformation. Read more.

Executive Order Aims to Increase Access to Child Care and Long-Term Care

In addition to the blanket order to federal agencies to identify ways to increase access to child care and long-term care for people working under federal grants, the order also directs specific agencies to take targeted actions—over 50 in total. While highlights may be found below, a complete list of these directives can be found in the order and are described in the fact sheet issued by the White House. Highlights include directing the:

  • Department of Defense to improve the affordability of child care on military installations.
  • Office of Personnel Management to review child care subsidy policy and consider setting government-wide standards for federal employees to access such assistance (via federal child care centers, child care subsidies or contracted care for providers).
  • Centers for Medicare & Medicaid Services to issue guidance to states on ways to connect home- and community-based workers who provide services to Medicaid beneficiaries.
  • Department of Health and Human Services to reduce or eliminate child care copayments for families participating in Child Care and Development Block Grant programs and to increase pay, benefits and access to mental health supports for Head Start teachers and staff.
  • HHS to consider actions to promote adequate staffing at nursing homes and to consider an innovative new payment and service delivery model for dementia care that would include family caregiver supports such as respite care.
  • Department of Veterans Affairs to improve access to home-based care for veterans.

President Joe Biden has indicated that no new funding will be required to implement these directives.

Biden Releases New Rehabilitation and Re-Entry Plan

The multi-year “Alternatives, Rehabilitation and Reentry Strategic Plan” addresses reentry issues for incarcerated individuals readying to return to their home communities from prisons and jails. The plan recommends expanding access to health care and affordable housing, creating job opportunities and access to banking and other financial services, and reducing barriers to voting for eligible persons. For more details, read the administration’s fact sheet and full strategic plan.

Court Updates

Supreme Court Declines to Limit State Permitting Authority

The U.S. Supreme Court rejected a petition to limit state authority under Clean Water Act (CWA), Section 401, which allows states to certify, condition or deny any required federal permits within a reasonable amount of time—typically one year—or the authority is said to be waived. The petitioners were challenging the District of Columbia Circuit Court of Appeals ruling upholding the Federal Energy Regulatory Commission’s denial of a CWA 401 waiver request from the California State Water Resources Control Board on the basis that the board’s denial of licensing and relicensing applications were valid state certification actions within the statutory limit. Additionally, the petitioners were eventually granted certification of the hydropower projects by the California board.

The Biden administration is revising a Trump-era rule to restore states’ Clean Water Act authority. For more information, read NCSL’s Info Alerts.

The court rejects a petition to limit state permitting authority, hears case on "true threats," and more.

Counterman v. Colorado, which the court heard on April 19, stems from Billy Ray Counterman’s stalking of singer-songwriter Coles Whalen over six years. In 2017, Counterman was found guilty of stalking and sentenced to 54 months in prison after sending Whalen thousands of increasingly threatening social media messages. Counterman appealed his case to the Supreme Court, alleging that the conviction was a violation of First Amendment rights. Under current case law, “true threats,” or statements that are objectively threatening, are unprotected speech. Counterman seeks to change the standard to require the statement also be subjectively intended as a threat by the speaker. This case comes on the heels of a heated debate about the government’s role in censorship of online discourse. The court will issue its ruling later this year. Read more.

Judge Suspends FDA Approval of Abortion Pill

The Supreme Court on April 21 granted the Justice Department's emergency request to block U.S. District Judge Matthew Kacsmaryk’s April 7 order halting the Food and Drug Administration’s approval of the abortion drug mifepristone. The court’s decision allows the continued sale of mifepristone at least until the 5th Circuit Court of Appeals rules on the district court's appeal. The district court case challenged the FDA’s approval of the drug, alleging the agency failed to properly evaluate mifepristone’s safety before approval. The 5th Circuit will hear the appeal on May 17. Read more.

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