Winter 2003

Legislative Update

Congress to Decide on Key Section Issues

Republicans Regain Control of Senate, Increase Numbers in House

The U. S. Congress had a new look when it convened on Jan. 7 for its 108th session. Republicans retained control of the House and regained a slight majority in the Senate in the November 2002 general election. Shortly thereafter, however, the presumptive choice for Senate majority leader, Trent Lott (R - MS) was forced to relinquish his leadership position because of comments he made at a 100th birthday party for retiring Sen. Strom Thurmond (R - SC) that appeared to express nostalgia for racial segregation. Sen. Bill Frist (R - TN) now heads the party in the Senate. As a result of these shifts in power, the precise legislative agenda for the 108th Congress is uncertain, but many issues of interest to the Section are likely to be considered in the months ahead.

A new Department of Homeland Security was approved in the waning days of the 107th Congress. Its creation marks the largest reorganization of the federal government in more than 50 years. The Department eventually will be comprised of more than 170,000 employers from 22 existing agencies, and its work will require major new resources allocated from shrinking federal revenues.

Also of significance is President Bush's post-election announcement that he will streamline the selection and confirmation process for federal judges. With Republicans now in control of the Senate, many of Bush's federal judicial nominees could be confirmed during the first few months of the new session. Democratic leaders, reportedly emboldened by newfound Republican sensitivity on civil rights matters following the Lott imbroglio, have indicated that the process may not be as quick or as easy as Republicans project.

Homeland Security

On Nov. 25, President Bush signed into law HR 5005, creating the Department of Homeland Security. The Department was created in response to security and intelligence weaknesses identified in the wake of the Sept. 11, 2001, terrorist attacks. Tom Ridge, who has served as Director of the White House Office of Homeland Security since October 2001, has been named to head the new Department.

Having initially opposed the reorganization plan, President Bush ultimately pushed for the Department's creation. Despite some opposition to changes in civil service labor provisions and exemptions to the Freedom of Information Act, the legislation passed in both the House and the Senate with relative ease.

The Department is expected to be functional within a year, but full transition and operation may take longer.

Judicial Nominations

On Oct. 30, President Bush announced a proposal to revamp the selection and confirmation process for federal judges to ensure that each nominee receives timely consideration. The proposal calls for federal appeals and district court judges to announce their retirement at least one year in advance, when possible; for the President to submit nominations to the Senate within 180 days of receiving notices of impending vacancies and for the Senate Judiciary Committee to hold hearings within 90 days of receiving nominations; and for the full Senate to vote on nominees within 180 days of submission of their names.

First Amendment

On Nov. 13, President Bush signed into law S 2690, to reaffirm the reference to "One Nation Under God" in the Pledge of Allegiance. In June 2002, the U. S. Court of Appeals for the Ninth Circuit struck down as unconstitutional a local California law requiring public school students to recite the "official" Pledge of Allegiance, codified in Federal Law, because the Pledge contains the phrase, "under God." The phrase was first added to the pledge in 1954, at the height of concern about communist threats to the United States. In response to the Circuit Court action, the Senate passed a resolution "expressing support for the Pledge of Allegiance," and the Justice Department filed an appeal of the Ninth Circuit ruling.

Immigration

On Aug. 6, President Bush signed into law HR 1209 which amends the Immigration and Nationality Act to provide that the determination of whether an unmarried alien son or daughter of a U. S. citizen is considered an "immediate relative child" (under 21 years old) shall be made at the time an immigration visa petition is filed for such classification on his or her behalf. Under existing law, unmarried children may apply for immigrant status as immediate relatives without limitation.

Native American Housing

On Nov. 13, President Bush signed into law S 1210, to reauthorize the Native American Housing Assistance and Self-Determination Act of 1996. In response to the lack of mortgage capital in Indian Country, Congress established the Section 184 Indian Housing Loan Guarantee Program to expand homeownership opportunities for eligible tribes, Indian Housing Authorities, and tribal members seeking to own a home on native lands. Because the U. S. government holds much of the land in Indian Country in trust for the benefit of a particular tribe or tribal member, this land cannot be mortgaged unless the Bureau of Indian Affairs approves of the placement of a leasehold mortgage on the improvements.

The 1996 Act is designed to provide Federal assistance for Indian tribes in a manner that recognizes the right of tribal self-governance. The NAHASDA reauthorization legislation reorganizes the system of federal housing assistance to Native Americans by eliminating several separate programs of assistance and replacing them with a single block grant program.

Health

On Oct. 26, President Bush signed into law S 1533, which amends the Public Health Service Act to reauthorize and strengthen the health centers program and the National Health Service Corps. In addition, the legislation establishes a Healthy Communities Access Program, to help coordinate services for the uninsured and underinsured.

International Law

On Oct. 23, President Bush signed the Russian Democracy Act of 2002, authorizing $50 million to promote democracy, human rights, an independent media, anti-corruption programs, and other reforms in Russia in order to promote and strengthen democratic government and civil society and independent media in the country. Some Russian officials reportedly were not pleased with the laws "pedantic" language, saying that U. S. lawmakers apparently are unaware of current reforms in Russia and bilateral agreements previously signed by the two nations.

Civil Rights/Constitutional Law

On Oct. 7, the House approved HR 4561, amending Title 5 of the United States Code, to require that agencies, in promulgating rules, take into consideration the impact of such rules on the privacy of individuals. The bill requires that when an agency is required by law to publish a notice of proposed rulemaking for any proposed rule, they are to submit a privacy impact analysis made available for public comment and describe the impact the proposed rule would have on the privacy of individuals. The Senate took no action on the bill. It is unclear whether the bill will be reintroduced in the 108th Congress.

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