Beltway Buzz, February 20, 2026

DHS Shutdown Continues. Today is the seventh day of the U.S. Department of Homeland Security (DHS) shutdown, and there are several reasons why it may continue for some time. First, the U.S. Congress was in recess this week, and even though the White House is handling negotiations for the Republicans, the absence of lawmakers on Capitol Hill certainly isn’t conducive to dealmaking. Second, the parties reportedly remain far apart on compromise reforms to Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), which is the underlying cause of the shutdown. Finally, as the Buzz has previously discussed, agencies such as ICE, CBP, and U.S. Citizenship and Immigration Services (USCIS) are already largely funded. DHS agencies such as the U.S. Coast Guard, Federal Emergency Management Agency (FEMA), and Transportation Security Administration (TSA) are the most impacted. In the past, air travel disruptions resulting from a lack of TSA personnel have played a role in forcing the parties to reach a spending deal.

BLS Releases Union Membership Numbers. This week, the U.S. Bureau of Labor Statistics (BLS) released its 2025 data on union membership rates. At the risk of dating ourselves, the numbers are a virtual carbon copy of the 2024 statistics. In 2025, the percentage of workers who were labor union members was 10 percent. (It was 9.9 percent in 2024.) Put aside public-sector union members, and the numbers get even smaller. Only 5.9 percent of private-sector workers were union members in 2025—the same percentage as in 2024. The only real wrinkle in 2025 was the forty-three-day government shutdown, during which BLS was unable to collect survey data. Accordingly, this week’s BLS release warns, “2025 annual estimates are not strictly comparable with annual averages for other years.”

Whither the Regulatory Agenda? As the business community looks ahead in 2026, the Buzz wonders when the administration might issue an up-to-date regulatory agenda. The Regulatory Flexibility Act and multiple executive orders require every administration to publish its regulatory forecast for the next six months—twice each year—in the spring and the fall. The timeframe is generally flexible, but administrations usually stick to this requirement (though the Buzz recalls that the Obama administration issued only one regulatory agenda in 2012). Thus far, the Trump administration has issued only one regulatory agenda, released on September 4, 2025, styled as the “Spring” agenda. No fall agenda was ever released, and the Buzz wonders whether it might be bypassed entirely in favor of a 2026 Spring Regulatory Agenda. Regardless, the agenda is out of date, making it extremely difficult for the business community to plan ahead and forecast the regulatory changes it may face in the future. The forty-three–day government shutdown only adds to the uncertainty, as employers do not know what impact it may have had on the predicted dates on which proposed or final rules are scheduled to issue.

Business Groups Seek NLRB Rulemaking on Independent Contractor Status. Speaking of regulatory forecasts, the Buzz has its eyes on the U.S. Department of Labor’s (DOL) proposed rule on “Employee or Independent Contractor Status Under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act,” which has been under review at the Office of Information and Regulatory Affairs (OIRA) since January 7, 2026. This proposal is just one front in the ongoing independent contractor policy battle that has been waged in Washington, D.C., for some time now. Another front is, of course, at the National Labor Relations Board (NLRB), which has changed its test for determining whether a worker is an employee or independent contractor multiple times over various administrations. In light of these policy swings, a group of trade associations has petitioned the NLRB to issue a rule clarifying the independent contractor test under the National Labor Relations Act (NLRA). The proposed rule, as drafted by the trade groups, tracks largely with a 2019 decision by the Board that examines the common law factors of agency as applied to the worker’s opportunity for profit or loss. The petition further notes the benefits of the rulemaking process, which include public notice and comments, prospective application, and a more durable framework that is less prone to political oscillation.

While the Board makes its way through its current case backlog, a potential rulemaking on independent contractor status provides a way for the Board to make new policy while it waits for a third Republican member, who will be needed to overturn extant Board law.

Baltimore and the Bill of Rights. The Potomac River sewage spill, which appears to be the largest of its kind in American history, isn’t the first controversy surrounding the government’s alleged mismanagement of waterways. In fact, 193 years ago this week, the Supreme Court of the United States decided Barron v. Baltimore, a case involving Baltimore Harbor and the Fifth Amendment to the U.S. Constitution. In 1815, John Barron bought a wharf in Baltimore Harbor, and it quickly became very profitable. Some years later, Baltimore initiated several public works projects that included diverting several streams into Baltimore Harbor. The streams brought sediment into the Harbor, decreasing the depth of water at Barron’s wharf, which eventually prohibited large ships from docking. Barron sued Baltimore for loss of revenue, claiming its actions amounted to a taking of his property without just compensation under the Fifth Amendment. The case eventually made its way to the Supreme Court, which ruled in 1833, in Chief Justice John Marshall’s last opinion, that the Bill of Rights applies only to the federal government and “contain[s] no expression indicating an intention to apply them to the State governments.” Barron v. Baltimore set an important precedent regarding our federalist system, but its holding has been eroded—if not overruled—over time. Following ratification of the Fourteenth Amendment in 1868, the Supreme Court has ruled, on a case-by-case basis, that the Fourteenth Amendment’s Due Process Clause “incorporates” the Bill of Rights to the states.