Beltway Buzz, January 31, 2020

It’s Fun to Stay at the USMCA. On January 29, 2020, President Donald Trump signed the United States–Mexico–Canada Agreement (USMCA). Now the trade agreement takes off to the Great White North (it’s a beauty way to go). Your move, Canada.

Justice Gorsuch: Injunction Junction, What’s Your Function? This week the Supreme Court of the United States paved the way for the Trump administration to implement its “public charge” rule. Melissa Manna and Andrea C. Davis have the details. While the decision and underlying rule are significant, don’t miss Justice Neil Gorsuch’s concurrence, in which he criticizes the use of nationwide injunctions by federal district courts:

When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.

Stakeholders’ opinions on the use of nationwide injunctions likely depend on whether their ox happens to be in the process of being gored at the time. Indeed, such nationwide injunctions prevented the U.S. Department of Labor’s (DOL) persuader and overtime regulations from going into effect in 2016.

NLRB Grad Student Docket Remains Open. On January 28, 2020, the National Labor Relations Board (NLRB) announced that it is extending the time for stakeholders to file responses to initial comments to its proposed rulemaking on whether students who perform services for their colleges/universities are employees under the National Labor Relations Act. Reply comments were originally due on January 29, 2020, but interested parties now have until February 28, 2020, to file responses.

OFCCP Comment Period Closes. On January 29, 2020, the public comment docket closed on the Office of Federal Contract Compliance Programs’ (OFCCP) notice of proposed rulemaking to codify guidance on predetermination notices in discrimination cases, as well as to clarify the type and strength of evidence that is required for finding discrimination. How soon will OFCCP issue a final rule? We’ll have to wait and see, but the agency will undoubtedly be working to get it done as quickly as possible in order to avoid any Congressional Review Act complications.

White House Seeks Info on Agency Enforcement. On January 30, 2020, the Office of Management and Budget posted a request for information (RFI) seeking “input on regulatory reforms that will better safeguard due process in the regulatory enforcement and adjudication settings.” The RFI specifically seeks information relating appropriate burdens of proof, evidentiary standards, and agency transparency and accountability, among other matters. Enforcement is where the policy rubber meets the road, so to speak, so the Buzz is curious to see how this endeavor may impact enforcement proceedings at the DOL, NLRB, and Equal Employment Opportunity Commission, among other agencies. Comments are due on or before March 16, 2020.

Intelligence Oversight. January 27, 2020, marked the 45th anniversary of the passage of the U.S. Senate resolution that created the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. More commonly referred to as the Church Committee, after its chairman, the late senator Frank Church (D-ID), it grew out of the Watergate scandal and was created to investigate federal intelligence operations and determine “the extent, if any, to which illegal, improper, or unethical activities were engaged in by any agency of the Federal Government.” The committee’s final report, issued in April 1976, helped usher in changes that are still relevant today. For example, just weeks after the report was issued, the Senate passed a resolution to establish the Senate Select Committee on Intelligence “to oversee and make continuing studies of the intelligence activities and programs of the United States Government.” The U.S. House of Representatives quickly followed suit by establishing the U.S. House of Representatives Permanent Select Committee on Intelligence on July 14, 1977. Congress got on board too and passed the Foreign Intelligence Surveillance Act in 1978, establishing procedures for electronic surveillance carried out by federal law enforcement or intelligence officials. And it all started 45 years ago this week.