Washington, D.C., is absorbing President Donald Trump’s first State of the Union address to Congress since the Republican Party lost the House of Representatives in the midterm election last fall, amid concerns that the ongoing budget impasse over a potential southern border wall and related immigration issues might lead to the year’s second government shutdown. The date of the State of the Union was delayed due to the first government shutdown. Congress must act very soon to extend government funding past Feb. 15 with legislation that the president is willing to sign, or the country could face a second costly shutdown.
The State of the Union gave the president an opportunity to strike a new conciliatory tone, and in some respects he chose policy pronouncements that could bridge the partisan divide — such as asking Congress to take up an infrastructure improvements bill. The speech also gave the president an opportunity to dig in his heels for a protracted battle over a southern border wall, and to make more ideologically sharp statements about abortion legislation and what he considers to be overly hostile congressional investigations. In short, the speech was a hybrid of the two approaches: bridge-building and confrontation.
Congressional leaders in both parties are mostly seeking to avoid another government shutdown, and for now they are principally relying on the 17 negotiators working to resolve the remaining issues in the Homeland Security appropriations bill, even as the rest of the remaining appropriations bills are ready to proceed to final passage. Senate Appropriations Committee Chair Richard Shelby, R-Ala., a key negotiator, expressed pessimism over the weekend that negotiators could resolve the remaining issues. Another key negotiator, Sen. John Hoeven, R-N.D., stated publicly that the border wall impasse might lead President Trump to have to declare the need for the wall a national emergency, setting up a potential showdown with the federal courts over such a use of presidential power.
House Speaker Nancy Pelosi, D-Calif., indicated on Wednesday that she has informed Sen. Shelby that she can support whatever bipartisan compromise the conference committee can generate. Time is running short for resolving the border security impasse, and negotiators likely need to produce a compromise by Friday, Feb. 8, or very soon thereafter, in order for Congress to have time to process the compromise through both chambers before the Feb. 15 expiration of the current continuing resolution.
The Senate begins its February work period with two important cabinet nominations to consider. The first, that of William Barr to be United States Attorney General, was voted out of the Senate Judiciary Committee favorably on Thursday, allowing Senate Majority Leader Mitch McConnell, R-Ky., to file a motion to invoke cloture on Barr’s nomination. That trajectory sets up the Barr nomination for final confirmation by the full Senate sometime next week.
Once it disposes of the Barr nomination, the Senate may take up the nomination of acting U.S. Environmental Protection Agency administrator Andrew Wheeler to be confirmed to that post. The Senate Environment & Public Works Committee approved the Wheeler nomination earlier this week on an 11-10 party-line vote, queueing up that nomination for consideration by the full Senate sometime later in the work period.
The Senate has approved S. 1, a bill to make improvements to certain defense and security assistance provisions and to authorize the appropriation of funds to Israel, to reauthorize the United States-Jordan Defense Cooperation Act of 2015, to assert concern over the administration’s planned withdrawal from Syria and further sanction the Syrian government, and for other purposes. This Middle East security package, introduced by Sen. Marco Rubio, R-Fla., enjoyed strong support among Republicans, but initially divided Senate Democrats. The bill is not expected to be taken up anytime soon by the House of Representatives.
The Senate is now considering a fairly noncontroversial bipartisan public lands package, but one sticky remaining issue is the desire of Senator Mike Lee, R-Utah, to carve his state out of the reach of the Antiquities Act. Utah Republicans for years have lamented the actions taken by successive Democratic presidents to designate national monuments in Utah.
The Trump administration’s Department of the Interior took actions during the last Congress to unilaterally scale back two such Utah national monuments, the Obama-designated Bears Ears National Monument and the Clinton-designated Grand Staircase-Escalante National Monument, leading to ongoing litigation, and an outcry from Democrats on Capitol Hill and a wide variety of outside stakeholders. Lee appears unlikely to make headway on his Antiquities Act effort, and the public lands package is likely to clear the Senate by the end of this week.
The House of Representatives also kicks off its February work period this week. The House will focus on a number of bills reported out of the House Transportation & Infrastructure Committee and the House Judiciary Committee under suspension of its rules, before turning to a bill introduced by Rep. Julia Brownley, D-Calif., entitled the Veterans’ Access to Child Care Act.
This article also was published in Law360.