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Category: Administration

ED Releases Fall 2019 Regulatory Agenda

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On Wednesday, the Department of Education (ED) released its Fall 2019 Unified Regulatory Agenda. The agenda includes a number of areas for proposed rulemaking that carried over from Spring 2019, as well as a new proposed rule on campus free speech. Of note, the final Title IX regulations are in the final stage at OMB. The final rules could be delayed into 2020.

Typically the public comment window is 60 days, but the Administration has allowed for just 30 days in some instances. While ED often does not make major changes to its proposed rules, public comments can result in positive improvements to the final regulations.

 

Timeline for Forthcoming Proposed Rules 

  • NEW: Regulations on Campus Free Speech, November 2019
  • Regulations on FERPA, January 2020
  • Updating regulations on HEA Title III and V programs, March 2020
  • Creating a priority for faculty member research opportunities within the Minority Science and Engineering Improvement Program (MSEIP), May 2020
  • Updating regulations for the Graduate Assistance in Areas of National Need (GAANN) program, May 2020

Don’t Forget, the Current CR Expires Next Week

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While a large swath of Washington is preoccupied with the public impeachment hearings, which started earlier today, senior appropriators met yesterday to figure out a path forward on how to keep the government open past next Thursday.  The current continuing resolution, which has kept the federal government open since October 1, expires at midnight, November 22.

It appears that at least the top appropriators– in both chambers and on both sides of the aisle– have agreed to push for a second CR that would last through December 20.  The assumption is that such an agreement would buy Congress enough time pull together packages of spending bills for the rest of FY2020 before adjourning for the year.  the wildcard is the Trump White House and its insistence on funding for a border wall as well as the possible impact of impeachment on spending negotiations.

At the end of the day, funding for most parts of the government would run out next Friday without any further action by Congress and the White House.  Read more about the situation here.

SCOTUS Hears DACA Today

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The Supreme Court of the United States (SCOTUS) will hear oral arguments for Department of Homeland Security v. Regents of the University of California (18-587). Consolidated with similar cases, the Court will hear arguments related to the Administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program. Considered one of the major cases of this term, the arguments before the justices will concern two key issues;

  1. Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and
  2. Whether DHS’s decision to wind down the DACA policy is lawful.

While the Court will hear arguments today, a decision is not expected until the Spring of 2020. To hear the oral arguments, SCOTUS posts the audio file each Friday following the arguments. The audio may be accessed here.

For a deep dive round up of how the case might be argued and rule, the SCOTUS blog has a round up here.

Federal Relations is monitoring the progress of the case and the federal responses on DACA closely and will continue to provide updates.

A Primer on Impeachment

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In late September, Speaker of the House, Congresswoman Nancy Pelosi (D-CA), announced a formal impeachment inquiry into President Donald Trump. Impeachment is when a legislative body levels charges against a government official. Similar to an indictment, it is the first step in the process of removing a government official from office because they have committed particularly offensive crimes, such as treason or bribery.

President Trump is accused of trying to solicit personal favors by threatening to withhold foreign aid to Ukraine. This was brought to attention through a whistleblower complaint from an Intelligence Community employee.

Only two previous Presidents have ever been impeached. President Andrew Johnson was impeached in 1868, but was acquitted in the Senate. President Bill Clinton was impeached in 1998, and was also acquitted in the Senate. Articles of impeachment were approved against President Richard Nixon in 1974 following the Watergate Scandal, although he resigned before the full House could vote to impeach him. No prior President has ever been removed from office as a direct result of impeachment.

The last government official to be impeached, found guilty, and removed from office was Judge G. Thomas Porteous Jr. Formerly a Judge in the US District Court for the Eastern District of Louisiana, Porteous was found guilty of perjury by the Senate in 2010 and was removed from office.

For Congress to impeach the President, here are the steps of impeachment, in a nutshell.

  • First, the House opens an inquiry. Power of impeachment rests with the House of Representatives, and is enshrined in Article II, Section II of the United States Constitution.
    • One area of contention in this inquiry has been voting. Under statute, the House is not required to follow any specific procedure to conduct an impeachment inquiry. In the past, a vote in the committee was required to issue subpoenas. Now, as a result of rule changes which occurred 2015, Democratic Committee Chairpersons have unilateral subpoena power (as the majority party). A vote would give Republicans the potential to seek unilateral subpoena power for the Ranking Members of the Committees (Republicans), allowing them to call their own witnesses and potentially change the direction of the inquiry. Speaker Pelosi asserts that the House Committee Chairpersons have all the necessary tools to conduct an inquiry, making a vote redundant.
  • Next, various House committees investigate. The Committees may seek evidence through calling witnesses, issuing subpoenas, and reviewing records. They will determine whether impeachable offenses occurred. The current inquiry is centered in the House Intelligence Committee, due to the nature of the whistleblower complaint, however multiple committees, including the House Oversight and Government Reform and House Judiciary Committee, are involved in the investigation.
    • In this inquiry, the White House has instructed the Department of State not to turn over evidence to House investigators, and has forbidden Department of State employees from testifying before the House. State Department employees are ultimately lead by President Trump, creating a sticky legal dilemma. The House Committees would have to initiate legal action in a federal court to obtain evidence.
  • Afterwards, the House Judiciary Committee reviews the findings. This is done after the various Committees have reviewed their evidence. The Judiciary Committee may recommend the entire House vote on articles of impeachment. To impeach a President, the entire House of Representatives must vote by simple majority. Voting is an involved process in and of itself, as the House must agree on voting method, when to vote, etc.
  • Impeaching a President doesn’t mean they are removed from office. The Senate must hold a trial overseen by the Chief Justice of the Supreme Court. The current Chief Justice is John Roberts. A trial can be lengthy because the Senate will need to establish procedures, review evidence, and actually agree to hold a vote. The President would then be removed if 2/3 of Senators vote in favor of removal. In this Congress, a 2/3 vote would require 12 Republican Senators, and all Democratic Senators, to vote in favor of impeachment.

Currently, the House and Senate are controlled by opposing parties. As a result, it is unlikely the Democratic-controlled House and Republican-controlled Senate would both reach the same conclusion. The inquiry has also become highly partisan, with each side accusing the other of corruption and abuse of power. However, not all evidence has been reviewed or made publicly available. As of October 8th, the White House is refusing to cooperate with the inquiry. It is unclear what will happen next, but it is important to keep in mind impeachment is an extremely difficult and lengthy process.

Edit: This post originally stated that President Richard Nixon was impeached. While the House Judiciary Committee approved three articles of impeachment, Nixon resigned before there was a vote in the House to adopt the articles. The post has been updated to reflect this.

Edit: This post originally stated that President Andrew Jackson was impeached instead of President Andrew Johnson. 

CR Signed, Now What?

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On Friday, President Trump signed the first continuing resolution of FY2020, buying everyone time until the end of November 21 to figure out the next steps in the appropriations process.

Fights over the border wall and abortion were going to be difficult enough to resolve; the new battles over impeachment will make the entire legislative process even more unpredictable.  Although the majority of Congress left town last Friday on a two-week recess, those involved in impeachment will continue to work on their investigations.