Federal Advocacy Update: Week of January 30, 2018
In this issue:
- Shutdown Ends and Advances City Priorities, but Funding Still Up in the Air
- San Francisco Local Leaders Highlight Need for Infrastructure and Workforce Development
- Cities Urge Comprehensive, Responsible Immigration Reform
- White House Infrastructure Outreach to Cities Continues as State of the Union Nears
- NLC Provides the Local Perspective at U.S. Chamber Infrastructure Summit
- Justice Department Escalates Threat to Punish So-Called “Sanctuary Cities”
- FCC Advisory Committee Considers Preemption, Over Local Objections
- NLC Kicks Off New “Mayors & CEOs for U.S. Housing Investment” Initiative
- Azar Confirmed as HHS Secretary
- Supreme Court Rules on WOTUS Jurisdiction
Michael Wallace, 202.626.3025
Following a lapse in federal funding resulting in a brief, three-day government shutdown, the President and Congressional leaders agreed to a short-term stop-gap funding bill, or continuing resolution, that restored federal government operations until February 8. This is the fourth continuing resolution enacted since the new fiscal year began October 1, 2017. NLC has historically opposed government shutdowns on principal, as the costs of inaction at the federal levels typically fall on cities and states.
In addition to ending the federal government shutdown, the continuing resolution represented a victory for cities by advancing two NLC legislative priorities. Specifically, the continuing resolution will:
- Reauthorize long-term funding for the Children's Health Insurance Program (CHIP) for six years. Funding for CHIP will start at $21.5 billion for Fiscal Year (FY) 2018 and gradually increase to $25.9 billion for FY 2022 and FY 2023.
- Delay the tax on high-value employer-sponsored health insurance plans (the so-called "Cadillac" tax) for two years, until the start of 2022. The “Cadillac” tax is a 40% excise tax on high-cost employer-sponsored health plans that continues to be a major concern for local governments that offer such health insurance policies.
To gain majority support for the continuing resolution in the Senate, Majority Leader McConnell (R-KY) also pledged to put federal immigration legislation on the Senate floor for a vote by February 8. NLC is supporting bipartisan legislation to provide immigrants registered under the Deferred Action for Childhood Arrivals (DACA) program with legal protection from deportation and a path to eventual citizenship. Due to an executive order signed by President Trump earlier this year, the DACA program is set to expire on March 5, 2018.
Next Steps: The continuing resolution gives Congress and the White House two more weeks to forge an agreement to raise overall federal spending caps for FY18. Without an agreement in place, another short-term extension will be necessary to prevent another government shutdown that will adversely affect cities.
Stephanie Martinez-Ruckman, 202.626.3098
On January 24, NLC held a press conference together with the League of California Cities and the San Francisco Public Utilities Commission (SFPUC) calling on Congress to prioritize investments in aging water infrastructure and workforce development. The event highlighted the need for Congress to partner with cities by providing access to low-interest financing for infrastructure projects and by creating federal programs to train the next generation of the water workforce.
In support of this effort, U.S. Senators Cory Booker (D-NJ) and Shelley Moore Capito (R-WV) have introduced legislation, S. 2346, which tackles workforce training and development issues by creating a competitive grant program for water workforce development. NLC sent a letter of support for this legislation, which would help to address the skills gap for this critical public utility.
This was the first event in what we hope will be a series of events throughout the year highlighting local needs as it pertains to infrastructure across the country. Read more about the event on CitiesSpeak here. If you are interested in doing an infrastructure event in your city, please contact Ashley Smith at ASmith@nlc.org.
Stephanie Martinez-Ruckman, 202.626.3098
On January 25, 2018, the White House released their framework on immigration reform. This document calls for reforms in four major categories:
- Border security, which includes $25 billion for a southern border wall and northern border improvements;
- Deferred Action for Childhood Arrivals (DACA) legalization over a 10-12-year time-frame;
- Ending extended-family chain migration by limiting sponsorship to spouses and minor children only; and
- Eliminating the visa lottery system to reallocate visas to reduce other immigration backlogs.
This proposal by the White House is broader than a legislative “fix” to the DACA program and is not fully in line with previous bipartisan compromises in the Senate.
In response to this proposal, NLC released a statement highlighting our long-standing policy calling for comprehensive immigration reform, which includes enforcement of current immigration laws and worksite enforcement, and that provides increased capacity for foreign nationals to obtain legal authorization for temporary visas or legal permanent residency. We look forward to working with the Administration and Congress as they work towards a final piece of legislation.
Brittney Kohler, 202.626.3164
On January 24, NLC President Mark Stodola, mayor of Little Rock, Ark., and NLC CEO and Executive Director Clarence Anthony joined mayors from across the United States at the White House for a briefing on infrastructure. During the meeting, President Trump and Vice President Pence reiterated their plan to invest $200 billion to leverage as much at $1.7 trillion in infrastructure investment by states, localities and private investors.
Following the meeting, Mayor Stodola released a statement calling on the President to use his State of the Union address to outline "a bold vision for rebuilding America's infrastructure in partnership with local governments."
NLC is calling on the White House to release their long-awaited infrastructure proposal which would kick-off the process for Congress to continue work on legislation. While some sources are revealing potential pieces of the White House proposal, NLC continues to call for an infrastructure proposal that will bring greater investment to America’s cities, large and small, and call on Congress to work with city leaders to rebuild America’s core infrastructure for the future.
Brittney Kohler, 202.626.3164
On January 18, the National League of Cities joined the U.S. Chamber of Commerce, major U.S. companies like FedEx Freight and Proctor & Gamble, and the construction industry to call for action by the White House and Congress to address America’s infrastructure challenges. During the U.S. Chamber’s “Time to Modernize” Summit, business leaders came together to echo the call for action that America’s cities have been raising.
NLC President Stodola, mayor of Little Rock, Ark. spoke to the business leaders gathered about how cities are working on fixing infrastructure at the local level, but also on how meeting those needs will require both a reliable federal partner and reliable funding. Mayor Stodola states:
“America’s cities depend on reliable infrastructure that actually works. From our ports and airports to the Interstate Highway System, our nation’s infrastructure has been, and must continue to be, the competitive advantage that allows America’s 30 million businesses to compete globally. The only way to keep this system up and running is through strong partnerships between the federal government, the states, the business community, and our local governments.”
With efforts like these in the coming year, cities will continue to call for Congress to get to work now to rebuild America’s infrastructure with us. To learn more about NLC’s efforts to raise awareness of the infrastructure challenges facing America’s cities, visit nlc.org/infrastructure.
Yucel Ors, 202.626.3124
The Department of Justice (DOJ) once again sent letters to 23 jurisdictions (14 cities, 6 counties, and 3 states) demanding proof that each jurisdiction is not restricting the sharing of citizenship or immigration status information by its law enforcement officers or other or government officials with federal immigration authorities.
The DOJ is accusing these jurisdictions of violating 8 U.S.C. 1373, a federal statute that prohibits state and local government from instituting laws, policies, or practices that restrict, any government entity or official from exchanging citizenship or immigration status information with the Immigration and Naturalization Service.
These jurisdictions are being targeted because they applied for and/or received Edward Byrne Justice Assistance Grants (Byrne JAG) in FY16 and FY17. The DOJ is stating that as a condition of receiving the Byrne JAG award, the jurisdictions have to certify that they are not in violation of 8 U.S.C. 1373. The letters threaten to subpoena the jurisdictions if they fail to respond, fail to respond completely, or fail to respond in a timely manner with DOJ’s demands. According to DOJ, if the jurisdiction is determined to not be in compliance with section 1373, DOJ could require the return of FY16 grants, place additional conditions for FY17 Byrne JAG funding, and/or deem the jurisdiction to be ineligible for FY17 Byrne JAG funding.
DOJ’s effort to increase pressure on these jurisdictions comes at a time when federal courts are considering several cases that were filed by some of these jurisdictions to stop DOJ’s efforts to punish sanctuary cities. To date, federal courts have issued several rulings that have blocked the Trump Administration’s efforts to withhold funding from sanctuary cities. This latest effort by DOJ is likely to face similar lawsuits.
While local governments are working to strengthen police-community relations, build trust, advance initiatives to increase economic mobility, and live out their values of inclusion and equity, efforts by DOJ to target cities for their welcoming policies towards non-violent immigrants is counterproductive and counterintuitive to these goals. NLC believes that any attempt by Congress and the Administration to shift the federal responsibility of enforcing federal immigration laws to local law enforcement is an unfunded mandate that diverts critical resources from local government programs, compromises public safety, and hinders local efforts to work with immigrant communities.
Angelina Panettieri, 202.626.3196
The Federal Communications Commission’s (FCC) Broadband Deployment Advisory Committee (BDAC) held its fourth public meeting on January 23 – 24, 2018 in Washington, DC. The BDAC, which was formed last year, has been directed by the FCC to develop model state and local codes to promote broadband deployment, along with identifying state and local barriers to broadband deployment. This month’s meeting was focused on approving reports on federal, state and local barriers to broadband deployment and competitive access to infrastructure, as well as reviewing drafts of state and municipal model codes.
NLC and numerous other local leaders have criticized the FCC in the past for the unbalanced composition of the BDAC membership, on which industry officials outnumber local government leaders by ten to one. One of the BDAC’s working groups, tasked with creating a model state code, has no municipal participants at all. NLC and local officials have called for more local representation and public input into the BDAC’s recommendations, which FCC Chairman Ajit Pai told the group this month would inform pending FCC regulatory activity
Despite this feedback and the efforts of local advocates, the BDAC debated a state model code that collects many of the most restrictive and preemptive features of state codes around the country. This code, includes the following:
- Establishes a statewide franchise;
- Defines “small cell” installations to be potentially as large as refrigerators;
- Creates obstacles to municipal broadband;
- Imposes restrictive shot clocks and “deemed granted” remedies for overdue applications;
- Restricts what information or concessions cities can request as part of siting negotiations; and
- Limits the lease fees cities may collect for use of public space to “actual, direct and reasonable cost” of managing those assets.
In response to the ongoing preference shown by the FCC for the concerns of industry over those of communities, Mayor Sam Liccardo of San Jose, Calif. resigned from the BDAC following the meeting. Additionally, the cities of San Jose, McAllen, Texas, and New York filed a minority report outlining those issues that had gone unaddressed in the publicly available BDAC documents. Dozens of city officials also signed a letter raising concerns that the BDAC’s focus on restricting state and local governments’ regulatory oversight and management of public assets does nothing to close the digital divide, particularly in rural communities.
The BDAC is expected to have a final meeting this spring, during which it will vote to approve final versions of state and municipal model code. While meetings of the BDAC working groups are not open to the public or part of the public record, NLC encourages cities and state municipal leagues to closely review the model codes available on the BDAC web page, particularly the draft model code for states, and submit feedback in docket GN 17-83 of the FCC’s electronic commenting system.
Michael Wallace, 202.626.3025
On January 25, the National League of Cities and partners launched the Mayors & CEOs for U.S. Housing Investment initiative with a gathering of mayors from cities across the country, including Los Angeles, Phoenix, Washington, D.C., Little Rock, Denver, Portland, Oregon, Aurora, Colorado, Oakland, California, Mesa, Arizona, and others — and business partners including Airbnb.
NLC President, Mayor Mark Stodola, Little Rock, AR and NLC Executive Director and CEO, Clarence Anthony, both delivered remarks at the event. Mayor Stodola was quoted, saying:
“Every day, mayors in cities and towns across the country are faced with the acute realities of homelessness and the dire need for affordable housing,” said Mark Stodola, president of the National League of Cities (NLC) and mayor of Little Rock, Arkansas. “The National League of Cities and the city of Little Rock are committed to working with mayors and business leaders to put an end to homelessness and create permanent solutions to our housing crisis. The energy and support of these leaders gathered here under the banner of Mayors & CEOs for U.S. Housing Investment is an important tool to achieve these ends.”
According to NLC’s blog, CitiesSpeak, the purpose of Mayors & CEO’s for U.S. Housing Investment, is to ignite a national conversation on housing and the importance of partnerships across sectors and across levels of government to combat homelessness and ensure access to affordable housing for all. Local leaders can learn more about the aims and agenda of the initiative at the Mayors and CEO’s for U.S. Housing Investment website.
Stephanie Martinez-Ruckman, 202.626.3098
In a 55-43 vote, the Senate voted to confirm Alex Azar as secretary for the Department of Health and Human Services (HHS). Seven Democrats voted for his confirmation while one Republican voted against.
Secretary Azar will join the agency as it tackles the opioid epidemic, growing drug prices, potential ongoing changes to the Affordable Care Act, as well as the implementation of the decision to allow states to apply for Medicaid waivers that allow for work requirements to be attached to the program.
Carolyn Berndt, 202.626.3101
On January 22, the U.S. Supreme Court unanimously ruled that district courts, rather than appellate courts, have jurisdiction to rule on the merits on the 2015 Clean Water Rule (aka “Waters of the U.S.” or “WOTUS”). The Clean Water Rule aimed to clarify which waters fall under federal jurisdiction of the Clean Water Act.
The Clean Water Rule has been under a nationwide stay since 2015, when the U.S. Court of Appeals for the 6th Circuit issued a ruling halting implementation. That ruling followed a preliminary injunction of the rule in 13 states issued by a U.S. District Court in North Dakota. The cases set the stage for the Supreme Court to determine which court had jurisdiction in the case.
The Supreme Court’s decision reverses the 6th Circuit ruling and remands the case with instructions to dismiss, throwing into doubt the status of the nationwide stay of the rule. It potentially means that the stay could be lifted for all states except the 13 states covered by the District Court rule. These states include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, and New Mexico. Alternatively, the District Court could issue a nationwide stay.
The question of jurisdiction is important to cities and towns because if these and other regulationsmustbe reviewed by federal courts of appeals within 120 days following their enactment and are not, theycannotbe challenged in a later enforcement proceeding. But whether states and local governments and others object to a regulation will often depend on how it is applied. Potential future litigants may have no reason to challenge a regulation until long after the 120-day window has passed, but would be barred from doing so in the future.
While litigation on the Waters of the U.S. rule has been pending, EPA and Army Corps have begun a two-step rulemaking process to rescind and revise the Clean Water Rule. In June, NLC submitted comments to the agencies highlighting key recommendations for consideration as the agencies move forward with revising the “Waters of the U.S.” rule. In September, NLC submitted comments to the agencies on a proposed rule to rescind the WOTUS rule, highlighting some of the challenges for local governments in reverting back to the previous definition of a “waters of the U.S.” The agencies expect complete actions on these two steps in spring 2018.
Additionally, because of the potential for the Supreme Court to rule as it did, last year the agencies proposed a rule to amend the effective date of the 2015 rule. Under this proposed rule, the Clean Water Rule would go into effect two years after the proposed rule is finalized and published in the Federal Register.
To learn more about what the Supreme Court’s ruling means for the future of the Clean Water rule, visit NLC’s blog CitiesSpeak.