Author: Poblete Tamargo LLP

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What to Expect in 2017: Part 1

Speaker of the House Paul Ryan (R-WI) will preside over a GOP majority, despite the loss of six seats this past election cycle. Speaker Ryan handily won the speakership with little or no opposition from his GOP colleagues. This as well as the selection of Reince Preibus as President-elect Trump’s Chief of Staff signaled the incoming administration’s desire to work with the Congress.

On the other side of the spectrum, the Democrats will face a period of transition, as they no longer hold the majority in either the House or the Senate. Congresswoman Nancy Pelosi (D-CA) has once again been elected as House Minority Leader. Despite her re-election, unity has proven to be an issue among Democrats after Representative Tim Ryan (D-OH) unsuccessfully challenged Minority Leader Pelosi for the position, showing signs of frustration with the Democratic leadership. Should the division amongst the party continue, it would come as no surprise if these frustrated Democrats assembled a voting bloc in order to swing votes in either passing or defeating pending legislation.

As this Congressional session begins issues surrounding the economy will most likely become the dominant topic on the House floor. In an interview with WPR’s Rob Ferrett, House Speaker Ryan discussed a preliminary outline of Congressional priorities in 2017 and addressed three areas that will be critical in building a stronger economy placing emphasis on the Affordable Care Act, burdensome regulations, and taxes.

“Well, we’ve got a lot of number-one priorities, I guess I’d say. The first we’re going to do is start working on a budget. And in that budget we’re going to try and bring Obamacare relief.” 

“But also [cutting back] the regulatory state, which is really putting a chilling effect on jobs, and reforming the tax code to make American businesses, particularly our manufacturers, much more competitive globally so we can grow more jobs here at home and increase take home pay, and just get faster economic growth.”

“What we ought to be doing is cleaning up our economic policy so that we’re the best…with a healthy economy, with strong companies that are in America, building, selling, exporting and engaging in the world, and pushing the values of freedom and free enterprise. That to me is what American leadership needs to look like.”[i]

Since the passage of the Affordable Care Act, House Republicans have been working on plans to repeal the healthcare law. Though preparations have been in the works since the enactment of the law, any proposals of legislation have been thwarted by veto threats from the Obama Administration, a significant obstacle that will be removed by the President-elect. With the nomination of Representative Tom Price, M.D. (R-GA), a physician and critic of the Affordable Care Act, as Secretary of Health and Human Services, President-elect Trump has sent a very strong signal that the healthcare law can expect major changes in the near future. Rep. Price has been very vocal opponent of the ACA and even introduced legislation in 2015 to repeal Obamacare all together.[ii] Actions have already been taken towards the dismantling of the ACA just days after the Congressional session began. The Senate passed a resolution on January 12, to instruct key committees to draft legislation repealing Obamacare. The House of Representatives followed suit passing the measure a day later.

Though the initial steps have been taken to repeal the Affordable Care Act, several members of the House have voiced concern over the strategy of voting for a repeal first without having a legitimate replacement prepared. Speaker Ryan has stated that the maximum number of suitable replacement provisions should be added into the legislation to repeal Obamacare.[iii]

The next matter that Speaker Ryan would like to revisit is burdensome regulations. Notwithstanding the overlap with the Affordable Care Act, the regulatory state has increased dramatically over the past eight years.[iv] Since 2009, the Obama Administration has imposed 229 major regulations, and in 2015 alone, federal regulators issued 2,353 new rules.[v] To put that in perspective, as stated in a CRS Report on Federal Regulations, “In 2015, approximately 30% of the total pages in the Federal Register were in the “Rules and Regulations” section, the section in which final rules are published.”[vi]

One major piece of legislation that Congress will look at is the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into federal law by President Obama in July 2010. Since the implementation, Republican members of Congress have been critical of its impact toward the smaller banks and community banks, especially as it relates to a financial institution’s ability to make loans.[vii] While on the campaign trail, President-elect Trump stated on several occasions that he plans to dismantle Dodd-Frank, and even considered Rep. Jeb Hensarling (R-TX), the bill sponsor to The Financial CHOICE Act of 2016 that proposed significant amendments to Dodd-Frank, for Treasury Secretary.

The third factor that Speaker Ryan noted as having a critical effect on the economy is the tax code. The majority of Americans have viewed the current tax code as burdensome. In 2016 a gallup poll showed that 57% of Americans felt they pay too much and 47% said their taxes are unfair. [viii] Speaker Ryan believes that reforming the tax code will allow the U.S. to be, “much more competitive globally so we can grow more jobs here at home and increase take home pay, and just get faster economic growth.”

House Republicans have an excellent opportunity to address the issues that they have campaigned for in the last six years. They can no longer use the excuse of a presidential veto for unsuccessfully converting legislation into law. The challenge for the Republican leadership is to see this opportunity as a two-year window to fulfill the promises that they have made.

To learn more about pending legislation for this upcoming Congressional Session, check us out on Twitter and Facebook. In our next segment, Part 2 of this series will turn our focus to the Senate.

[i] Ryan Outlines 2017 Congressional Priorities on WPR. (2016, December 6). Retrieved January 10, 2017, from http://paulryan.house.gov/news/documentsingle.aspx?DocumentID=398585

[ii] Price Introduces Empowering Patients First Act. (2015, May 13). Retrieved January 10, 2017, from https://tomprice.house.gov/HR2300

[iii] Cornwell, S. (2017, January 12). U.S. Senate Approves Measure Launching Obamacare Repeal Process. Reuters. Retrieved from http://www.reuters.com/article/us-usa-obamacare-idUSKBN14W0MC

[iv] Lux, M. (2016, April 14). Dodd-Frank Is Hurting Community Banks. The New York Times. Retrieved from http://www.nytimes.com/roomfordebate/2016/04/14/has-dodd-frank-eliminated-the-dangers-in-the-banking-system/dodd-frank-is-hurting-community-banks

[v] Gattuso, J. L., & Katz, D. (2016, May 23). Red Tape Rising 2016: Obama Regs Top $100 Billion Annually. Retrieved January 10, 2017, from http://www.heritage.org/research/reports/2016/05/red-tape-rising-2016-obama-regs-top-100-billion-annually#_ftn6

[vi] Carey, M. P. (2016, October 4). Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register (Rep. No. R43056). Retrieved January 10, 2017, from Congressional Research Service website https://fas.org/sgp/crs/misc/R43056.pdf

[vii] Lux, M. (2016, April 14). Dodd-Frank Is Hurting Community Banks. The New York Times. Retrieved from http://www.nytimes.com/roomfordebate/2016/04/14/has-dodd-frank-eliminated-the-dangers-in-the-banking-system/dodd-frank-is-hurting-community-banks

[viii] Norman, J. (2016, April 14). Most Americans in 15 Years Say Their Tax Bill Is Too High. Retrieved from http://www.gallup.com/poll/190778/americans-years-say-tax-bill-high.aspx   Gallup Poll, April 6-10

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UPDATE 4-Statement on the Continued Unlawful Detention of Internet Freedom Advocate Nizar Zakka

The following statement was issued by Mr. Nizar Zakka’s attorney in the United States, Mr. Jason I. Poblete related to Nizar’s unlawful detention as a hostage in Iran’s Evin detention facility.

Nizar Zakka began a hunger strike on December 8, 2016 to raise awareness about his plight as well as others being unlawfully imprisoned by the Iranian government.

A source inside the detention facility has advised that Nizar has been moved into an area of the facility that houses common criminals, seemingly as a punishment for his continued hunger strike. Mr. Zakka and several other prisoners of conscience have been on prolonged hunger strike, which was noted by United Nations Special Rapporteur on the Human Rights situation in Iran, Ms. Asma Jahangir on January 9.

Mr. Zakka’s attorney has and will continue to press the U.S. State Department and other interested parties to do more to secure the unconditional release of Nizar and all other U.S. hostages.

 

Prior Statements and Releases

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Microsoft vs. DOJ – Round 2

The DOJ’s warrant sought out information stored on a server in Ireland. Microsoft refused to hand over the requested data under the pretense that the warrant referred only to materials in the United States and not those outside of the country. The dispute over the warrant’s validity went to the Second Circuit Court of Appeals, which ruled that the DOJ could not use their warrant pursuant to the Stored Communications Act. The court reasoned that the Congress did not intend for the prevision regarding warrants to be executed outside of US territory. The Court also recognized that the Stored Communications Act needed to be revised due to the fact that the law was passed before the Internet became prevalent.

Recently, the DOJ announced that it would draft a “legislative fix” to address the Second Circuit’s ruling. However, there is a tool that the DOJ currently has at it’s disposal to address this issue. That tool is the Mutual Legal Assistance Treaty.[ii] Mutual Legal Assistance Treaties (MLATs) are agreements between the United States and foreign governments in matters involving a criminal investigation.[iii] The focus of these treaties is cooperation between the countries’ respective law enforcement agencies. However, there are only a few of these treaties between foreign governments and the US. A major criticism of using MLATs regarding emails or other communications stored on servers is the amount of time it would take to obtain the warrant and review the collected information. Given the immediacy of reviewing emails and other forms of cyber communications, the DOJ fear that such information will be permanently lost.   

Based on the DOJ’s comments, it would appear that they intend to bypass the MLATs. Although the DOJ’s proposal is still in the beginning stages, Congress needs to be wary in granting them such powers. The major problem with the idea of bypassing MLATs is the issue of reciprocity. Reciprocity under international law allows country A to execute its laws on country B when country B executes its laws on country A. The application of this law may have a potentially damaging effect. For instance, imagine China or Russia executing search warrants pursuant to their criminal laws against individuals who criticize their governments via twitter or email and seeking that information on American servers. 

Congress needs to be very judicious and careful in granting extraterritorial reach for US search warrants as it revises the Stored Communication Act. The Department Of Justice must also recognize that the rules regarding data and the flow of data are still evolving. Foreign policy makers are still tuned in to organizations such as the NSA and other countries’ abilities to spy on conversations from any part of the world. Instead, the DOJ needs to make every effort possible to reach out to its counterparts in the EU and other international bodies to implement a special type of MLAT as it relates to email or other cyber communications. By developing a specific treaty relating to legal assistance involving electronic communication and data storage with congressional action, DOJ may have a more appropriate way of addressing such problems.

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War Survivors Seeking Claims Should Get Paperwork in Now

KUAM.com-KUAM News: On Air. Online. On Demand.

The President finally signed off on the National Defense Authorization Act for 2017 officially establishing the Guam World War II Claims Fund. An article from KUAM News discussed the beginning of the program as war survivors seeking claims are being urged to get paperwork in sooner rather than later. 

More than a decade ago Mauricio Tamargo, former commissioner of the Foreign Claims Settlement Commission, was tasked with heading the Guam War Claims Review Commission in 2005. As stated in the article, the Commission concluded that, “The Navy’s wartime era claims program fell way short of adequate compensation for those who suffered under Japanese occupation.” The enactment of the NDAA for 2017 has launched a new commission which has 180 days to come up with the final filing procedures.

“I think I understand what documentation is going to be needed because it’s really up to the commission, but I already know the elements of the claim that need to be documented so I think this time that we’re in should be used productively to prepare that,” Tamargo told KUAM News.

Tamargo went on to say it’s premature to get bogged down on where the money will come from. He estimates payments are still about two years away, and once the one year filing period closes and its known how many, and how much will be paid out, then its possible he says that a new source can be identified.  “Whether its improved or not, I’m sure this is all going to work out,” Tamargo shared. 

“And the claimants will finally find justice and closure from their experience from the war.”

To read the entire article in KUAM News go here.

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UPDATE 3- Zakka Starts Hunger Strike, Demands Unconditional Release

Statement on the Continued Unlawful Detention of Nizar Zakka

The following statement was issued by Mr. Nizar Zakka’s attorney in the United States, Mr. Jason Poblete related to Nizar’s unlawful detention as a hostage in Iran’s Evin detention facility.

On December 8, 2016, Nizar began a hunger strike to raise awareness about his plight as well as others being unlawfully imprisoned by the Iranian government. Mr. Zakka was detained by Iranian officials in September 2015 in Tehran and has since been held hostage by the Iranian regime. Since that time, Nizar has been subjected to not only physical and psychological torture, but he has also been denied much needed medical attention and consular services.

Mr. Zakka’s attorney has and will continue to press the U.S. State Department and other interested parties to do more to secure the unconditional release of Nizar and all other U.S. hostages.

 

 

Prior Statements and Related Information: