Federal Issues Update
President Trump's Executive Orders, Nominees and More
Since his inauguration as the nation’s forty-fifth president, Donald J. Trump has moved quickly to capitalize on a number of his campaign promises, many of which are detailed in his “Contract with the American Voter.” On his first day in office, President Trump signed an executive order that instructed federal agencies to waive any requirement of the Affordable Care Act (ACA) that could impose a financial or regulatory burden on those affected by the law. Notably, the order was not specific and did not direct any particular action. Additionally, major substantive changes to health policy will require new legislation.
In addition to the ACA directive, the president this past Monday reinstated the so-called Mexico City Policy, which blocks federal funding to nongovernment organizations overseas that provide or support abortion services. He also signed an executive order to formally withdraw the United States from the Trans-Pacific Partnership and another to freeze government hiring. On Tuesday, Trump took executive action to expedite permitting of the controversial Dakota Access and Keystone XL pipelines. Most recently, the president signed two major immigration and security-related orders (please see section below).
Meanwhile, two of President Trump’s cabinet secretaries have been confirmed by the U.S. Senate. On January 20th, the chamber overwhelmingly cleared retired Generals James Mattis to lead the Pentagon and John Kelly to head the Department of Homeland Security. The Senate also confirmed Representative Mike Pompeo (R-KS) and South Carolina Governor Nikki Haley to serve as CIA director and U.S. ambassador to the United Nations, respectively. Several other high-profile nominees are expected to receive votes in the coming weeks.
It should be noted that committee action on three of President Trump’s nominees were recently postponed. The Judiciary Committee, on which Senator Dianne Feinstein (D-CA) serves as ranking member, has delayed by one week consideration of Alabama Senator Jeff Sessions as Attorney General. In addition, the Senate Energy and Natural Resources Committee postponed by one week votes on Energy Secretary nominee Rick Perry and Interior Secretary-designate Ryan Zinke.
President Trump Takes Executive Action on Immigration
On January 25th, President Trump signed a pair of highly anticipated – and controversial – executive orders addressing various immigration and security-related issues. Executed at a signing ceremony at the U.S. Department of Homeland Security (DHS), the presidential directives set in motion the key elements of the immigration agenda laid out by President Trump on the campaign trail.
The first order directs the “immediate construction of a physical wall” on the nearly 2,000 mile United States-Mexico border. While the order instructs the Secretary of DHS to identify and allocate all sources of federal funds for the planning, design, and construction of the barrier, the order itself lacks any specific funding mechanism. GOP congressional leaders have indicated that they expect the Trump administration to submit to Congress in the near future a supplemental spending request to cover the up-front costs of building the wall.
The order also directs DHS to prioritize resources to construct additional detention facilities along the border and to staff them with asylum officers and immigration judges. In addition, the directive calls on U.S. Customs and Border Protection to hire 5,000 more border patrol agents.
The second presidential decree, among other things, seeks to cut off federal grant funding for so-called “sanctuary jurisdictions.” Specifically, the order directs DHS and the Department of Justice to ensure that jurisdictions that are not in compliance with federal law (8 USC Section 1373) are ineligible to receive federal grants. Section 1373, which has not been previously enforced by the federal government, prohibits States and local agencies from restricting the maintenance or intergovernmental exchange of information regarding the citizenship or immigration status of an individual that is being held for a crime.
In California and other states, certain localities have in place policies and/or practices that limit cooperation with federal immigration officials. Accordingly, these jurisdictions would appear to be in violation of federal law and therefore at risk of losing federal funding.
It should be noted that compliance with California’s TRUST Act (AB 4) – which, under certain circumstances, prohibits local law enforcement agencies from detaining noncitizens pursuant to an immigration hold – does not automatically put counties in contravention with Section 1373. Accordingly, most California counties do not appear to be at risk of losing federal funds under the Trump administration’s directive.
Looking ahead, the administration’s immigration orders will undoubtedly spur significant public debate, as well as trigger litigation, as federal authorities move to implement the executive actions. For their part, the elected leaders of several self-identified sanctuary jurisdictions have already responded to the administration’s move by stating that they intend to continue their policies of non-cooperation with federal immigration authorities, even if it means losing some level of federal funding.
Finally, and on a related matter, several bills have been introduced in the new 115th Congress that would cut off federal funding streams to jurisdictions that fail to comply with detainers issued by U.S. Immigration and Customs Enforcement. While previous iterations of the legislation have been approved in the House, the proposals have failed to garner the necessary votes in the Senate.
Senate Democrats Release Infrastructure Plan
This week, Senate Democrats released a 10-year, $1 trillion infrastructure spending plan. The proposal, the cost of which mirrors the price tag of the Trump administration’s own pledged infrastructure plan, would rely on direct federal spending to pay for a host of aviation, surface transportation, port and waterways projects. Senate Democrats have not yet identified a specific funding source for their proposal, though have suggested that revenue for the program would be generated by closing tax loopholes.
For its part, the Trump White House has indicated that its infrastructure plan would be financed via a combination of federal tax credits and public-private partnerships. While some Republicans have embraced the administration’s pay-for, a number of conservatives in Congress have expressed skepticism with the size and scope of such a proposal.
As advertised, the Trump administration is still in the process of putting together the details of its infrastructure package. The plan, which is expected to be released this spring, will likely serve as the starting point for legislative discussions within the congressional committees that will be responsible for writing the bill.
In a related development, the White House has compiled a preliminary list of 50 priority projects that could be funded as part of an infrastructure measure. The projects – which largely track a set of recommendations provided by the National Governors Association – are all in the multimillion and billion dollar range and include, among others, major airport expansion projects, harbors, pipelines, rail and transit, and water infrastructure. Two California projects are on the preliminary list: the Cadiz Water Conveyance Project and the Huntington Beach Desalination Plant.
Consistent with the president’s campaign pledge, and as evidenced by the aforementioned project list, the Trump administration intends to use the infrastructure program to finance large-scale, and in some cases, regional, initiatives. Accordingly, it remains to be seen how local infrastructure projects and programs will fare in any potential legislation. Nevertheless, CSAC is working with the new administration and Congress to ensure that funding for local roads and bridges are part of any infrastructure bill.
Although definitive action on the current-year budget remains on hold for the time being, there have been discussions on and off Capitol Hill in recent days regarding President Trump’s plans to seek long-term cuts in domestic discretionary programs. Notably, the administration’s staff is using a fiscal blueprint prepared by the Heritage Foundation early last year as a guide for the development of their own budget. Although the Heritage plan calls for the restoration of defense spending – which has been cut as a result of the sequestration imposed by the Budget Control Act of 2011 – the proposal recommends $10.5 trillion in other spending cuts over 10 years. The plan also calls for $1.3 trillion in tax reductions.
The proposal includes numerous specific recommendations regarding which programs should be eliminated or reduced at the Departmental level (i.e., it recommends eliminating all state & local grant programs administrated by the Office of Justice Programs, Workforce Innovation and Opportunity Act job-training programs, TIGER grants, etc.).
While reigning in discretionary spending is a goal shared by the Trump White House and congressional Republicans, conservatives have made it clear that their primary, long-term budgetary objective is to secure cuts in federal entitlement spending. GOP leaders have yet to coalesce around a single proposal, though various factions within the party have been discussing options for realizing savings in programs such as Medicaid, Medicare, and Social Security. Likewise, President Trump’s nominee for director of the Office of Management and Budget, Representative Mick Mulvaney (R-SC), has indicated that he would advocate for cuts in Social Security and Medicare spending.
It should be noted that the federal government is currently operating under a Continuing Resolution that runs through April 28. Therefore, Congress will need to act in relatively short order to put together a final spending plan for the fiscal year that ends on September 30.
Looking ahead to fiscal year 2018, the Trump administration plans to release a preliminary budget document in the coming months that will convey their main fiscal priorities. A full, detailed budget is expected by mid-to-late April. While Republican congressional leaders will almost assuredly be receptive to certain elements of the ensuing Trump budget, moderate Republicans and Democrats are expected to push back on proposed budget cuts to popular spending programs.