Congress returned from the July 4 recess to the much anticipated announcement by President Donald Trump of his nominee to succeed retiring U.S. Supreme Court Justice Anthony Kennedy. Former Kennedy law clerk Judge Brett Kavanaugh, a highly credentialed Washington, D.C., veteran with a dozen years of service on the D.C. Circuit Court of Appeals, is Trump’s choice. And Senate Majority Leader Mitch McConnell, R-Ky., has assured members of the Senate that the Kavanaugh nomination will be voted on well before the midterm elections in November.
The Senate Judiciary Committee will likely be singularly focused on processing the nomination over the next couple of months, which will capture the attention of senators on and off the committee and the general public. Committee chairman Charles Grassley, R-Iowa, will lead supporters, and ranking member Dianne Feinstein, D-Calif., is expected to lead opponents, setting up a long and contentious summer for the committee as it seeks to replace Kennedy, generally regarded by observers as the most frequent swing vote on the closely divided Roberts court.
While the Kavanaugh nomination will dominate the work of the Senate Judiciary Committee, Congress remains very busy on items such as its attempts to process fiscal year 2019 appropriations bills. The chambers may go to conference during the month of July on the first of several appropriations “minibuses.” The Senate just voted to go to conference on a package containing the energy and water, legislative branch and military construction/Department of Veterans Affairs appropriations bills.
Of note, retiring Sen. Bob Corker, R-Tenn., filed a largely symbolic motion to instruct conferees relating to the administration’s authority to carry out certain of its trade tariffs agenda, and that motion passed 88-11. Corker’s motion focuses on augmenting Congress’s role with respect to actions under Section 232 of the Trade Expansion Act of 1962, but the Senate’s broader discomfort with the administration’s entire trade agenda looms large. The administration’s trade tariff actions pursuant to Section 232 relating to steel and aluminum, and Section 301 of the Trade Act of 1974 relating to goods from China, are highly controversial on Capitol Hill — as evidenced by the strong bipartisan support for the Corker motion. But neither chamber appears prepared to tangle in a more substantive way with the administration on trade before the midterm election, beyond some oversight activity such as the Senate Finance Committee’s recent questioning of Commerce Secretary Wilbur Ross about the Section 232 tariffs, which fall under the U.S. Department of Commerce‘s purview.
The House is preparing a second minibus appropriations package, containing the financial services/general government and U.S. Department of Interior appropriations bills for floor consideration during the July work period. The Senate’s version of that second minibus might also fund the U.S. Departments of Transportation, Housing and Urban Development and Agriculture. Senate Appropriations Committee Chairman Richard Shelby, R-Ala., is considering packaging the appropriations bills for the U.S. Departments of Defense, Labor, Health and Human Services and Education into a subsequent minibus. These measures would have to clear 60-vote thresholds on the Senate floor, requiring bipartisan support.
It is unclear how many of the 12 appropriations bills can be finalized by the two chambers before the end of the fiscal year on Sept. 30, at which time a short-term continuing resolution will be necessary to fund the government into the lame-duck session after the November midterms. Alternatively, Congress could once again flirt with a dramatic shutdown of the government.
The House may also continue to grapple with immigration reform issues, even after two Republican iterations of immigration legislation failed on the House floor during the month of June. In particular, some House Republicans would like to see an effort to address specific immigration issues of interest to members of the Republican conference, such as E-Verify, H-2B temporary non-agricultural worker visas, agriculture worker issues and possibly controversial family reunification issues. House Republicans do not appear likely to try to resolve the status of beneficiaries of the Deferred Action for Childhood Arrivals program, which President Trump has halted. No such action is expected in the Senate either.
Similar to the piecemeal approach that the House may take on specific immigration matters, House Republicans may also seek to legislate on several health care matters during the July work period, some of which are related to the Affordable Care Act. House Republican leadership might approve for full House consideration legislation to address health care premiums, health savings accounts, reinsurance plans and the medical device tax, and might work to reauthorize the Pandemic and All-Hazards Preparedness Reauthorization Act.
The two chambers are likely to go to conference sometime this month on the FY 2019 National Defense Authorization Act, with both chambers having passed their individual versions of the legislation. The Senate embedded a reform of the Committee on Foreign Investment in the United States, called the Foreign Investment Risk Review Modernization Act, in its version of the bill. The House, having worked on its own freestanding version of CFIUS reform, appears likely to accept the Senate’s FIRRMA bill during the course of the NDAA conference, readying CFIUS reform for enactment as part of NDAA.
The Senate has shown willingness to assert itself with the administration relative to the U.S. relationship with North Atlantic Treaty Organization allies. Even as President Trump has traveled to meet with his NATO counterparts in contentious meetings in Brussels, Belgium, the full Senate asserted its support for NATO in a 97-2 vote on a resolution by Senate Armed Services Committee Ranking Member Jack Reed, D-R.I. The Senate Foreign Relations Committee is taking similar action on a separate NATO resolution, S. Res. 557, expressing the sense of the Senate of support for strengthening NATO, through its committee process.
The Senate is moving toward attempts to address two important laws which are soon to expire: one reauthorizing the Federal Aviation Administration and the other reauthorizing the Water Resources Development Act. Senate leadership in both parties is trying to discern how to bring both measures to the Senate floor with agreements on which amendments to consider and potentially with time limitations. WRDA in particular appears to be close to ready for Senate floor consideration, and could be considered during the second week of the July work period. The two chambers might go to conference to resolve differences on their respective versions of the farm bill. The Senate version of the farm bill does not include a House Republican priority: imposing new work requirements on low-income recipients of food assistance.
The 51-member Senate Republican majority continues to focus much of its floor time confirming executive branch and judicial nominations, which can no longer be filibustered by a Senate minority. The Senate returned to Washington after the July 4th recess and confirmed a noncontroversial Ninth Circuit Court of Appeals nominee from Hawaii, Mark Bennett, before turning its attention to the nomination of Paul Ney to be the general counsel of the Department of Defense. While time-consuming, these nominations are sailing through the Senate with majority votes — even controversial ones such as the nomination of former Jeff Sessions aide Brian Benczkowski to be Assistant Attorney General for the Criminal Division of the Justice Department under now-Attorney General Sessions, which skirted through the Senate by a 51-48 margin. Confirming nominations promises to continue to be the top goal for Sen. McConnell in the leadup to the November midterm elections.
This article was originally published in Law360.