Capitol Hill Update: What’s on the Horizon in Congress?

Scheduled session days for the rest of the year: Both the House and the Senate will return on Monday, September 9. There are legislative days 13 legislative days scheduled in the House and 15 in the Senate between September 9 and September 30, which is the end of FY 2019. There are 45 legislative days scheduled in the House and 53 in the Senate between September 9 and the end of the calendar year.

House Republican Conference is down another member: Rep. Sean Duffy (R-Wis.) will resign his seat on September 23. He represents Wisconsin’s 7th Congressional District and has served in the House since January 2011. Rep. Duffy’s lifetime score with FreedomWorks is under 70 percent. The special elections in North Carolina’s 3rd and 9th congressional districts will be decided on Tuesday, September 10, before Rep. Duffy’s resignation takes effect.

Status of appropriations: Before adjourning, Congress passed the Bipartisan Budget Act of 2019, H.R. 3877, which busted the spending caps by more than $320 billion over two fiscal years, FY 2020 and FY 2021. Discretionary spending levels for FY 2020 and FY 2021, including overseas contingency operations (OCO), are now $1.367 trillion and $1.375 trillion. Under the agreement between the White House and congressional leadership that led to the Bipartisan Budget Act of 2019, consideration of the appropriations bills in committee will be “orderly and timely” and will lead to an omnibus that will include all 12 appropriations bills. When that omnibus will reach the floor is a matter of speculation. There is some speculation that Congress will have to pass a short-term continuing resolution (CR) to provide enough time for the committee to complete their work before the end of the fiscal year on September 30.

Unsurprisingly, the budget outlook has gotten worse: In the aftermath of the really horrible budget agreement that Congress passed before it adjourned for the August recess, the CBO released an update of the ten-year budget projections. The deficit for the current year, FY 2019, has been revised up from $896 billion to $960 billion. According to the projections released in May, $1 trillion deficits weren’t supposed to begin again until FY 2022. That has changed. The projected deficit for FY 2020 has been revised from $892 billion to $1,008 billion, or just a hair over $1 trillion, and future deficits are expected to remain over $1 trillion, peaking in FY 2028 at $1.479 trillion.

The deficit-to-GDP ratio will rise from the current 4.5 percent to as high as 5 percent. The spending-to-GDP ratio will rise above historical averages, which we’re close to now, at 20.8 percent, to as high as 23.1 percent. At the height of the recession, spending-to-GDP was at 24.4 percent in FY 2009. The share of the debt held by the public is projected to rise from 78.9 percent of GDP in 2019 to 95.1 percent in FY 2029.

Nominations will continue to be a point of focus: Just before the recess, the Senate confirmed several dozen nominees, the vast majority of which were confirmed by voice. Cloture was filed on eight more nominees for consideration when the Senate returns. Since January 2017, the Senate has confirmed two Supreme Court justices, 43 circuit court judges, and 99 district court judges. To date, 75 percent of President Trump’s nominees, including judges, have been confirmed and 276 were subject to roll call votes. By this point in his presidency, 80 percent of Obama’s nominees were confirmed and 90 were subject to roll call votes. President George W. Bush saw 84 percent of his nominees confirmed by this point and 116 were subject to roll call votes.

An update on trade war: Oh, boy. Where to begin. As of last week, the United States has imposed tariffs on $550 billion of goods produced by China. This includes announced tariffs that haven’t taken effect. China has, in return, imposed tariffs on $185 billion in goods produced by the United States. The tariffs are partly to blame for the economic slowdown the United States is experiencing. The slowdown is fueling concerns about a recession.

The two sides will, apparently, be sitting down for more talks to settle the dispute, but the end result of that is anything but certain. Prior to reports of talks, President Trump tweeted: “Our great American companies are hereby ordered to immediately start looking for an alternative to China.” Later in the day, the President said that he has “the absolute right [to order American companies end investment in China],” citing the International Emergency Economic Powers Act (IEEPA). Via Twitter, he again implied that he had the power to issue such an order through the IEEPA.

IEEPA has been used primarily for foreign policy actions, such as sanctions against a foreign country such as Iran and Iraq or foreign nationals, including bad actors and terrorists. In many of these instances, the United States has been engaged in some measure of hostilities or used the law to penalize countries accused of human rights abuses, atrocities, or supporting terrorism or foreign nationals engaged in criminal or terrorist acts. According to the Congressional Research Service, the law has been cited in 54 declarations of emergency, 29 of which remain in effect. These declarations have been used in executive orders prescribing the sanctions, prohibition, or limitations to address the subject(s) of the emergency declaration. In total, 167 such executive orders have been issued since November 1979.

IEEPA does grant a president with authority to related to “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.”

The phrase “unusual and extraordinary threat” is specifically defined in the statute, so the use of IEEPA to target China would be outside the norm. But IEEPA does not allow a president to make an emergency declaration retroactive to a certain date, meaning previous investment would not be affected should President Trump issue an emergency declaration aimed an American investment in China. He could, however, prohibit future transactions.

Congress does have the statutory authority to terminate an emergency through a privileged joint resolution. The process governing the joint resolution of disapproval is through Section 202 of the National Emergencies Act. Congress has already attempted to use this statute to terminate an emergency declaration, although the declaration in that instance was issued under the National Emergencies Act. A joint resolution to terminate the national emergency declared at the United States’ southern border was vetoed by President Trump. The override attempt in the House, where the joint resolution originated, failed.

Senate Finance may respond to the trade war: We’ve heard that the Senate Finance Committee may markup legislation to address the administration’s authority to impose tariffs under Section 232 of the Trade Expansion Act of 1962 and Section 301 of the Trade Act of 1974. Two bills that FreedomWorks supports have already been introduced and would require Congress to approve the imposition of tariffs. Those bills are the Global Trade Accountability Act, S. 1284 and H.R. 723, introduced by Sen. Mike Lee (R-Utah) and Rep. Warren Davidson (R-Ohio), and the Bicameral Congressional Trade Authority Act, S. 287 and H.R. 940, introduced by Sen. Pat Toomey (R-Pa.) and Rep. Mike Gallagher (R-Wis.).

Both bills would create a congressional approval process through a joint resolution for the imposition of tariffs. The biggest key difference is that the Global Trade Accountability Act is only prospective while the Bicameral Congressional Trade Authority Act would be retroactive. There are concerns about another bill, the Trade Security Act, S. 365, introduced by Sen. Rob Portman (R-Ohio). Put simply, this bill lacks any teeth. It does make some changes to the determination process for tariffs related to national security, but it merely states that Congress may consider a joint resolution of disapproval to nullify the imposition of tariffs. Congress already has this authority.

When the Senate Finance Committee plans to markup trade legislation is unclear. We have heard, though, that Chairman Chuck Grassley (R-Iowa) plans to have an open amendment process given that two of the committee members, Sens. Toomey and Portman, have introduced competing bills.

House Democrats are inching toward action on Social Security expansion: Just before the recess, the House Ways and Means Committee held a hearing on the Social Security 2100 Act, H.R. 860. The Social Security 2100 Act was introduced in February by Rep. John Larson (D-Ct.), who chairs the House Subcommittee on Social Security. The Social Security 2100 Act would expand Social Security benefits, change how the cost-of-living adjustment (COLA) is calculated, incrementally increase the payroll tax on employers and employees to 7.4 from 6.2 percent by 2043, gradually eliminate the wage cap, and combine the existing Social Security trust funds into a single trust fund.

Overall, the Social Security 2100 Act would increase taxes by $18.9 trillion over the 75-year period scored by the Office of the Chief Actuary of Social Security. The bill would increase benefits on net by $3.7 trillion over the time frame. It would eliminate the current unfunded liability of $13.2 trillion and create a surplus of $2.1 trillion. Of course, the chief actuary doesn’t score dynamic impacts on the economy. The payroll tax increase will hit every American employer regardless of size and every employee regardless of income level. Assuming the individual income tax changes made in the Tax Cuts and Jobs Act are not made permanent, the top marginal income tax rate will rise to 39.6 percent on January 1, 2026.

As the American Enterprise Institute’s Andrew Biggs has noted, “Most economists, as well as both the SSA actuaries and the CBO Social Security analysts, assume that employers fund payroll tax or other employee benefit increases by holding back on employee wages. Thus, employees would bear the full cost of higher Social Security taxes.” This effectively would make the top marginal income tax rate 54.4 percent, and this is before the massive tax hikes that would undoubtedly come from Medicare for All.

Expect the House to consider legislation to prop up Big Labor: Another bill that is gaining traction in the House is the Protecting the Right to Organize (PRO) Act, H.R. 2474. Among its many provisions, the PRO Act would repeal right-to-work bills in states, allow secondary boycotts, bring back the National Labor Relations Board’s joint employment rule, increase fines if an employer is in violation of labor laws, create a private right of action for organized employees to sue an employer, and prohibit an employer from getting involved in union elections. The PRO Act has 191 cosponsors, all of whom are Democrats.

Gun control on the agenda: This isn’t an issue that FreedomWorks watches very much, at least not directly. Our work on criminal justice does involve looking at crime statistics and trends, and our work on civil liberties does keep us mindful of legislation that could be problematic when it relates to due process. The House has already passed the Bipartisan Background Checks Act, H.R. 8, but it’s unlikely the Senate will consider it given how far it goes. H.R. 8 would require background checks on all handgun purchases and transfers. Currently, background checks are required for the vast majority of gun sales. These are instances in which an individual purchases a firearm from a gun store, which is required to have a Federal Firearms License (FFL) to sell guns. This does include most purchases at gun shows, at which a gun store may sell firearms. Person-to-person private sales or transfers, such as inherited guns, aren’t subject to a background check but would be should H.R. 8 become law.

There are four different concepts that could be considered should Congress take up this issue, three of which have already been introduced. Those bills are the Threat Assessment, Prevention, and Safety (TAPS) Act, H.R. 838 and S. 265; the Extreme Risk Protection Order Act, H.R. 1236 and S. 506; and the Assault Weapons Ban, H.R. 1296 and S. 66.

Whether the Senate takes up any gun control legislation is unclear, but the House is incredibly likely to take up some proposals. The TAPS Act would create a 24-member task force that would provide recommendations for a national strategy that would provide targeted behavioral threat assessment and management process for the federal government and provide states and law enforcement with the means to create their own behavioral threat assessment and management processes. Essentially, the goal of the bill is to identify individuals who exhibit violent behavior. Still, this bill could create due process concerns.

The Extreme Risk Protection Order Act is the “red flag” proposal. This legislation would incentivize states to enact red flag laws. Under such laws, a family member or members or law enforcement to seek a temporary extreme risk protection order against an individual who could be a threat to themselves or others. A judge could issue an order to allow law enforcement to take possession of any firearms that the individual owns. The proposal would also create a national red flag law. Like the TAPS Act, the Extreme Risk Protection Order Act could create constitutional problems.

The Assault Weapons Ban would update and reinstate the ban that was passed as part of the Violent Crime Control and Law Enforcement Act, also known as the 1994 crime bill. The bill would prohibit semiautomatic pistols, rifles, and shotguns based on certain cosmetic features. It also would ban specific makes and models of firearms, including the AR-15, the Daniel Defense M4A1, and the Smith & Wesson M&P15. A January 2013 memo from the National Institute of Justice on various gun control policies noted that “a complete elimination of assault weapons would not have a large impact on gun homicides.”

Finally, Sens. Pat Toomey (R-Pa.) and Joe Manchin (D-W.Va.) may reintroduce their background check expansion bill. Previous versions of this proposal would have extended background checks to gun shows and online sales. Again, though, most sales at gun shows are subject to a background check and, if one were to purchase a firearm online, it has to be shipped to a federally licensed dealer, where the buyer will be subject to a background check.

Possible reauthorization of Section 215 of the PATRIOT Act: Earlier this year, the Wall Street Journal reported that the National Security Agency (NSA) recommended ending the phone data surveillance program authorized by Section 215 of the USA PATRIOT Act. Basically, the program had become too difficult to manage and provided little value.

In June 2013, disclosures revealed that the National Security Agency (NSA) was collecting phone metadata of virtually every American, without a specific warrant, under Section 215 of the USA PATRIOT Act. This statute, at the time, did not authorize a vast apparatus for the mass collection of cell phone metadata. As the Privacy and Civil Liberties Oversight Board (PCLOB) noted in its January 2014 report, “[W]e have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” In 2015, Congress passed the USA FREEDOM Act and modified Section 215 to allow the FBI and NSA to collect phone records. Although this framework may not be as extensive as the previous regime, it is still expansive.

According to the Statistical Transparency Report Regarding the Use of National Security Authorities published by the Office of the Director of National Intelligence, the NSA collected 151.2 million call detail records (CDRs) in 2016, 534.4 million in 2017, and 434.2 million in 2018. The report notes that the NSA estimated the number of possible terrorism targets at 42 in 2016, 40 in 2017, and 11 in 2018. In other words, 11 targets in 2018 yielded 434.2 million records. The NSA began deleting these CDRs in 2018 because, as the report notes, there were “irregularities” that “resulted in the production to NSA of some CDRs that NSA was not authorized to receive.” The collection of phone records continued after these records were deleted.

Earlier this month and just hours before leaving office, Director of National Intelligence Dan Coats asked Congress for the “permanent reauthorization of the provisions of the USA FREEDOM Act,” including Section 215 of the PATRIOT Act. The provisions are set to expire in December.