What’s Next for the Second Blocked Travel Ban?

Judges in Hawaii and Maryland recently prevented parts of the second executive order on refugees from going into effect temporarily, citing likely violations of the U.S. Constitution’s Establishment Clause.

President Trump’s second travel ban prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On March 16, 2017, President Donald Trump’s second travel ban executive order was scheduled to be enacted. Within hours of each other, federal judges from Hawaii and Maryland issued decisions temporarily preventing portions of it from going into effect nationwide. Both decisions conclude that the executive order likely violates the Establishment Clause because it was intended to prevent people from for entering the United States on the basis of religion.

The State of Hawaii (and an American citizen of Egyptian descent with a Syrian mother-in-law lacking a visa) brought the case decided by the court in Hawaii.

The president’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down, concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

The second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers.

The Establishment Clause prevents the government from preferring one religion over another. To that end, laws must have a secular purpose.

The Hawaii judge reasoned that “a reasonable, objective observer enlightened by the specific historical context, contemporaneous public statements, and specific sequences of events leading to its issuance” would conclude the executive order was intended to disfavor Muslims despite its “stated, religiously-neutral purpose.” More specifically, the court relied on numerous statements made by the president himself indicating he wanted a “Muslim ban.”

The Maryland judge’s analysis of the purpose of the travel ban is very similar to that of the Hawaii judge, but the Maryland judge spends more time dismissing the notion that national security concerns were the real reason for the travel ban. “The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.”

President Trump has three options at this point. First, he can appeal both rulings to the Ninth and Fourth Circuits, respectively, like he did when a federal district court judge in the state of Washington struck down the first travel ban. Three-judge panels will decide whether to affirm the lower court decisions. Second, he can go back to the drawing board again and issue a third travel ban. Finally, he can abandon altogether the adoption of a travel ban.

Initial comments made by the president indicate he would like to take this travel ban (as well as the first one) all the way to the Supreme Court.

On March 15, 2017, the full Ninth Circuit issued an opinion stating that it would not rehear the case regarding the first travel ban. Interestingly, five Ninth Circuit judges dissented from this decision, concluding that the first travel ban was “well within the powers of the presidency.”

If the president appeals the Hawaii ruling to the Ninth Circuit, it is possible that the three-judge panel could include between zero and three of these dissenting judges.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

City Leaders Will Fight the Cuts Because Cities Are Worth Fighting For

The president’s budget proposal represents a vision of unprecedented withdrawal of federal investment in America’s neighborhoods and communities.

Small and rural cities in particular generally lack the tax base to absorb cuts at the level the White House has proposed. (Getty Images)

President Donald Trump’s “skinny budget” proposes more than $50 billion in domestic spending reductions across the board, and would outright eliminate dozens of programs important to cities and towns. For city leaders, cuts of this magnitude are not merely a question of how to do a little more with a little less. That’s a question that has already dogged local officials for years as a result of the relatively smaller annual funding cuts to city priorities resulting from sequestration. It’s also a question city leaders have had to contend with because of the growing number of state-mandated caps on local tax and revenue authority.

The president’s budget proposal not only asks cities and towns to do a lot more with a lot less, it represents a vision of unprecedented withdrawal of federal investment in America’s neighborhoods and communities and an abandonment of the role the federal government traditionally plays as a stakeholder in cities, the nation’s economic engines and centers of opportunity.

A quick scan of programs proposed for elimination revels what is at stake for all American cities, large and small:

  • Community Development Block Grants (CDBG)
  • HOME Investment Partnerships Program for Affordable Housing
  • Economic Development Administration Grants (EDA)
  • Transit New Starts for Public Transportation
  • TIGER Grants for Public Transportation Projects
  • Minority Business Development Agency
  • Community Development Financial Institutions (CDFI) Grants
  • Low Income Home Energy Assistance (LIHEAP)
  • National Endowment for the Arts (NEA)
  • Pre-Disaster Mitigation Grants
  • State Criminal Alien Assistance Grants
  • Community Services Block Grant (CSBG)
  • Weatherization Assistance Program
  • The Clean Power Plan

NLC President Matt Zone has pointed out that the president’s budget proposal runs directly counter to his campaign promise to lift up America’s cities – and in fact, the worst impacts of the cuts will be felt in the small towns and rural communities the president promised to prioritize. That’s because small and rural cities generally lack the tax base to absorb cuts at this level, and will be forced to make tough decisions that could have drastic human consequences.

The Community Development Block Grants program is a good example. For many reasons, NLC has had to lead efforts to “Save CDBG” from significant cuts or elimination every few years. Among those reasons is the fact that, from the viewpoint of federal lawmakers, CDBG can look like a “big city” program with a level of flexibility that makes outcomes difficult to measure. In reality, when the threat to CDBG is real, small-town leaders are always at the forefront of NLC advocacy to save the program. That’s because CDBG is one of the few programs that funds infrastructure improvements, such as water towers or main street redevelopment, in small and rural communities.

NLC is calling on Congress to throw out the White House’s budget proposal and develop a new plan focused on building prosperity, expanding opportunity, and investing in our future. Whatever the outcome, we know that real-life stories from local officials on the impact of federal programs will carry the day. That’s why we’re asking city leaders from communities large and small to help us fight the cuts by showing Congress why their city is worth fighting for.

mike_wallace_125x150About the author: Michael Wallace is the Program Director of Federal Advocacy at the National League of Cities. Follow him on Twitter @MikeWallaceII.

Supreme Court Will Not Decide Transgender Bathroom Case

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

The Trump Administration’s reversal of a rule on transgender students’ rights has effectively removed the case from the Court’s docket. (Getty Images)

The Supreme Court will not decide – at least not this term – whether transgender students have a right to use the bathroom consistent with their gender identity, due to changes in position on this issue from the Obama Administration to the Trump Administration.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex.

In a 2015 letter, the Department of Education (DOE) interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter.

On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

In November 2016, the Supreme Court agreed to decide two questions in Gloucester County School Board v. G.G. First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

The Fourth Circuit ruled in favor of G.G. The court gave Auer deference to DOE’s letter. Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 and 2016 letters being rescinded, both parties still wanted the Supreme Court to decide this case. As the parties pointed out, the second question – how to interpret the Title IX regulations regardless of DOE’s position – doesn’t depend on the views of either administration.

Nevertheless, the Supreme Court has sent this case back to the Fourth Circuit to rehear it in light of the new “Dear Colleague” letter. That ruling may again to appealed to the Supreme Court.

It seems likely that sooner rather than later, and probably with the benefit of nine Justices, the Supreme Court will again be considering the question of the rights of transgender students.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

When Cities and States Clash, Women and Families Suffer

Despite ongoing efforts to create more inclusive, gender-equal workplaces, many states currently prevent cities from passing laws mandating employers provide paid leave.

Tens of thousands attended the Women’s March on January 21, 2017 in Washington, D.C., to advocate for legislation and policies regarding women’s rights and a number of other human rights issues, such as gender equality in the workplace. (Wikimedia Commons)

This post was co-authored by Christiana McFarland and Brooks Rainwater.

Today, people around the globe are donning red, attending marches, and participating in walkouts in solidarity for International Women’s Day and “A Day Without a Woman.” With the social campaign #BeBoldForChange, organizers are calling on everyone to forge more inclusive, gender-equal workplaces. One way that cities are doing just that is through local paid leave policies.

The only problem? These efforts are being thwarted in nearly half the country. A new report from National League of Cities, City Rights in an Era of Preemption: A State-by-State Analysis, points to a troubling trend counteracting these local efforts – 19 states currently prevent cities from passing laws mandating employers provide paid leave. These limitations, also known as paid leave preemption laws, leave a great deal of families – and especially, women – with few options to care for themselves, a new child, or aging parents.

This trend is hardened by the fact that the federal government does not mandate paid family and medical leave at the national level. While a 1993 law, the Family Medical Leave Act, provides new parents with a guaranteed 12 weeks off after the birth of a child, it provides no remuneration, and is therefore only an option for those who can afford unpaid time off.

In the global context, most countries provide paid family and medical leave, including all countries in the Organisation for Economic Cooperation and Development (OECD), making the United States an extreme outlier.

As inequality rises and opportunities for those at the bottom of the income spectrum contract, support is needed to lift up rather than hold down our fellow Americans. This fact, tied together with the lack of national, state and private sector action to provide paid leave has spurred momentum forward in many cities to pass such laws.

What does paid leave encompass?

Paid leave, which includes both sick and family and medical leave, is a growing area of action for a number of cities. Paid sick leave laws specifically refer to the federal, state or local government mandating that employers provide sick time for employees that is paid either directly by the employer or through a social welfare benefit administered by the government.

Paid family and medical leave refers to the government providing monetary support to people caring for newborn children or aging parents, or addressing serious health issues. These types of laws typically provide anywhere from a percentage of full pay to 100 percent of a worker’s salary for set periods of time ranging from a few weeks to a year or more.

Which states prevent local action on paid leave?

In just the past couple of years, more than 20 municipalities have passed paid sick leave laws. From Tampa to Seattle to Washington, D.C., cities are working to empower local residents through guaranteed paid leave, which in turn creates better, healthier workforces.

However, this activity at the local level has prompted many state legislatures to stymy city control on the issue of paid leave, often on the grounds of limiting the “patchwork of regulations” for businesses operating throughout the state. But, it should be reiterated that this “patchwork” only exists, because states and the federal government have not taken action. Cities will always lead, but these preemptive measures mean that cities cannot tailor laws to meet local needs and values, and in the case of paid leave, serve to undermine the overall health and well-being of employees and limit economic growth.

(NLC)

New methods of preemption are also beginning to crop up. For example, in the absence of a state law that explicitly prohibits local paid sick leave, Arizona has threatened to withhold revenues from the city of Tempe in order to deter the possible adoption of paid sick leave measures.

Although many cities and their states have antagonistic relationships in the realm of paid leave, some offer solid examples for how to work together to support outcomes for women, families and businesses. Statewide paid leave laws that allow cities to provide levels of support for employees that exceed the state’s minimum requirements is a best practice to both minimize the patchwork of regulations and maintain local control. For example, San Diego and San Francisco are among several California cities that have passed paid sick leave laws that go above and beyond state minimums.

When it comes to social policy, aggressive state action has limited the ability of city leaders to expand rights and provide opportunities to community members. Preemption that prevents cities from expanding rights, building stronger economies and promoting innovation can be counterproductive and even dangerous for cities, states and the country.

Our call for local control is a call to give cities the ability to adapt and to have the tools they need to create an inclusive society that works for everyone. As we all celebrate International Women’s Day, let’s continue to support and lift up the success of our cities on paid leave and fight back against states that would diminish the voice of people in cities. Paid leave ultimately should be a right not a choice. It is in our nation’s cities where our country’s leaders will continue to lead the way in moving the country forward—helping us all to create a more inclusive world.

About the authors:

Christiana K. McFarland is NLC’s Research Director. Follow Christy on Twitter at @ckmcfarland.

 

 

Brooks Rainwater is Senior Executive and Director of the Center for City Solutions and Applied Research at the National League of Cities. Follow Brooks on Twitter @BrooksRainwater.

Meet Your Grassroots Advocate

“With longer sessions of Congress, federal elected officials are spending more time in D.C this year. Our members realize that they need to meet Congress here.”

Advanced registration for the Congressional City Conference ends this Friday. As part of our “Meet Your City Advocate” series introducing you to NLC’s Federal Advocacy team, we sat down with Ashley Smith, senior associate for grassroots advocacy, to learn more about NLC’s grassroots advocacy efforts and to find out what’s in store for “Capitol Hill Advocacy Day” during the conference this year.

Ashley Smith.jpg

Ashley Smith is the senior associate for grassroots advocacy at the National League of Cities (NLC/Brian Egan)

Name: Ashley Smith
Area of expertise: Grassroots Advocacy
Hometown: San Antonio, Texas

Ashley, thank you for taking the time to sit down with me today. To start off, can you tell us about your background?

Well, I grew up in San Antonio. Go Spurs! I’ve been at NLC almost a year now. Our Congressional City Conference (CCC) Capitol Hill Advocacy Day will be my anniversary.

Congrats!

Thank you! I went to the University of Kansas for undergrad, and then made my way to D.C. immediately after graduating. I knew I wanted to be in D.C., so I jumped on a plane without a job.

That’s how a lot of D.C. stories seem to start.

I made it work, though. I took a job at the Democratic Leadership Council, where I worked with state and local elected officials, and then joined a consulting firm working with nonprofits on issue advocacy campaigns. I’ve done a little bit of everything since coming here, but I love working in politics.

I’ve spent a fair amount of time working with local elected officials, so that’s what drew me to NLC. They’re just wonderful people to collaborate with, and I love empowering them to advocate for the work they do to help their residents day in and day out.

Cool. So why don’t you tell us about your job here at the National League of Cities? 

I manage our grassroots advocacy efforts, which encompasses a lot of things. Mostly, my work is to provide our members – the nation’s cities – with the tools and resources they need to effectively advocate for city priorities. I manage online and offline tools that members can use in their advocacy efforts. I also work to keep our members updated on opportunities to advocate for cities, and alert them when important legislation or city priorities are being addressed in Congress.

Most importantly, my job is making sure that members of Congress hear from local leaders directly. As you’ve heard in my colleagues’ previous interviews throughout this blog series, our lobbyists are always on the Hill advocating for city priorities – but it’s my job to make sure our members get on the Hill and in Congressional offices as well. That’s important because a Senator or Representative will listen to NLC lobbyists, but they really take note when we come into the office with a mayor or councilmember from their district. Our members are not only constituents – as local leaders, they represent other constituents, giving them a unique and powerful voice.

For sure! Can you tell us a bit about your role at the conference next week?

I’m there to engage with our members and to make sure they know of all the opportunities available to them. My biggest job though is to organize and run our Capitol Hill Advocacy Day. We’re planning to bring more than 500 members to 250 meetings on the Hill with members of both the House and Senate on March 15. I’m there to make sure everyone knows where to go and has their schedules, talking points and our great buttons.

I’m also leading two interactive workshops through our Federal Advocacy 101 training – one on Monday, the other on Tuesday. I encourage members to attend one if they are interested in learning more about how to have an effective meeting with a member of Congress – or if they just want to meet their grassroots advocate in person.

What are you most excited about for CCC?

I’m very excited by all the energy we’re seeing this year and the renewed sense of urgency for local leaders to come to D.C. Registration numbers for CCC are at their highest in years, and that is exciting.

With longer sessions of Congress, federal elected officials are spending more time in D.C. this year. Our members realize that they need to meet Congress here. We also have a new class of Congress, a new administration, and all new leadership in executive departments – and the members know that this means they need to come to D.C. to start building new local-federal partnerships.

I’m also excited to have nearly twice as many meetings available for NLC members on the Hill than last year. It’s another historic high we’ve hit.

That means you did your job well! So, last question – what is your spirit city?

That’s a hard question, but I’d say Washington, D.C.! I was one of those kids who was inspired by the West Wing, and after traveling to D.C. on a family trip when I was 13 years old, I was hooked and knew I wanted to live in D.C.

I also love living in a city comprised of people from all over the country. For all of the crazy politics that can go down here, it’s a great city with great people. I’m looking forward to welcoming our members here!

Join us at the 2017 Congressional City Conference and meet Ashley and the rest of your City Advocates. Advanced registration closes Friday, March 10!

brian-headshotAbout the author: Brian Egan is the Public Affairs Associate for NLC. Follow him on Twitter @BeegleME.

Cities Should Be the Focus of Federalism

Cities accelerate the spread of ideas and drive our national economy – but they are constrained in their ability to realize their full potential for their residents and for the nation.

(NLC)

(NLC)

In the first installment of this series, we looked at the basics of federalism and why it matters to cities. Part two focused on how affordable housing assistance has changed with the interpretation of federalism, and what that means for cities today, while part three examined federalism in the context of the American educational system. Part four focused on how local-federal partnerships support innovation and entrepreneurship, and today’s installment calls for more city-focused federalism.

Why should federalism focus on cities?

In 1932, Supreme Court Justice Louis Brandéis famously wrote, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” This adage can be applied equally well to cities, which offer many advantages over federal and state governments.

Because of their limited geographies dense with human potential, cities accelerate the spread of ideas. They have become the drivers of our national economy. We can attribute this success to cities’ comparatively minimal bureaucracy, which allows them to respond quickly to changing technology and, in many instances, to act more pragmatically.

At the same time cities are innovating, they are providing a breadth of essential services to residents. Historian Kenneth Jackson once wrote, “Local governments in the United States have more responsibilities than municipal jurisdictions in other nations, and thus, they must themselves provide and pay for schools, policemen, fire protection, road repairs, sanitation and social services.”

Despite their role in our country, cities are faced with a lack of constitutional power. The federal government, over the last one hundred years, has embraced policies that have been notably anti-urban, including car subsidies, mortgage subsidies, substandard public housing, residential segregation and suburban land use laws. Coupled with the stifling attitude most state governments have towards localities, cities are constrained in their ability to realize their full potential for their residents and for the nation. This is why we need city-focused federalism.

What does city-focused federalism look like?

More resources. In today’s fiscal federalism – a carrot-and-stick approach to governing – money is everything. While cities generate most of their revenues from their own sources, intergovernmental aid is essential for jump-starting innovative projects and supporting necessary programs. Former Chicago Mayor Richard M. Daley once said, “Why should a city be mandated to do something by the federal government or state government without [being given] the money to do it?” City-focused federalism recognizes that cities need reliable funding from federal and state partners and not unfunded mandates.

Local decision-making. Cities should not have to wait on Congress to act in order to maintain highways, build transit systems, or spur new housing. Cities know which projects are critical, and will be responsible for maintaining them for years to come. City-focused federalism puts local governments in a position to set priorities and lead implementation. Federal funding formulas should reflect city priorities, or at least allow for flexibility at the local level. Passing more funding through to cities with fewer stipulations from the federal government will help catalyze this process.

Less preemption. Many state legislatures, which disproportionately represent non-urban constituents, have increased preemption of local authority on a number of issues. For example, local control over fiscal mechanisms is fundamentally important. Cities that have access to multiple revenue streams (sales, property and income) can tailor them to their local economies and preferences. However, the vast majority only have access to one or two streams of revenue. Reversing preemption and taxing limitations will only spur more innovation in cities. Moreover, granting home rule to more local governments will further enshrine the place of cities in the federal system.

A seat at the table. A strong federalist system relies on cooperation, not conflict, among the levels of government. The Obama administration set a positive precedent by placing former mayors in positions of influence and including local governments in important discussions, increasing the chances of local innovations becoming national policies. In the new administration, the voice of local governments deserves to be heard and respected. Furthermore, the creation of a national urban policy – something our country has long lacked – would go leaps and bounds towards affirming the importance of cities in America.

How do we achieve these goals?

Real change may not come without substantial shifts in politics and policy. More rights and protections for cities may need to come from a change not only in attitudes but in legislation. This is a daunting task. But the changes that city leaders create at the local level are often mirrored at the state and federal level – and by making their voices heard in statehouses and on Capitol Hill, local leaders can help change the nature of federalism in America.

To learn more about NLC’s efforts to promote more city-focused federalism – and make your voice heard at the federal level – join us at the Congressional City Conference in Washington, D.C., March 11-15.

Trevor Langan 125x150About the author: Trevor Langan is the Research Associate for City Solutions and Applied Research at the National League of Cities.

Fighting for Local Government Priorities on Capitol Hill

NLC is laying the groundwork for Capitol Hill Advocacy Day, which takes place on March 15 during NLC’s Congressional City Conference. More than 250 meetings have been arranged for local officials to speak with their Congressional representatives about city priorities.

With a new president and Congress, now is the time to raise the voice of cities and make their priorities heard. (Getty Images)

With a new president and Congress, now is the time to raise the voice of cities and make their priorities heard. (Getty Images)

This post was co-authored by Michael Wallace and Ashley Smith.

Thousands of local officials will soon arrive in Washington, D.C. for NLC’s 2017 Congressional City Conference. Among the members of Congress scheduled to meet with conference attendees are seven new senators, 55 new representatives, and 91 former local elected officials. To lay the groundwork for successful meetings, NLC lobbyists have met in advance with these offices, alongside top leadership, over the last two months.

From January 3, when the new Congress was gaveled into being, to now, NLC lobbyists have taken 135 Congressional meetings with 120 members of Congress and their staff; and 11 meetings with Congressional committee staff from nine House and Senate committees. Among outcomes related to specific policy issues, these meetings served to educate Congressional offices on cities’ bipartisan priorities and reinforce NLC as the voice of America’s cities on Capitol Hill.

The Congressional City Conference takes place March 11-15. While in Washington for the conference, you’ll learn from political and issue experts on how federal action may impact your city in the months and years ahead, and have the opportunity to speak up for cities during meetings with your Congressional delegation.

Start your conference experience by attending NLC’s Federal Advocacy Committee meetings on Sunday, March 12 to learn more about our policy development process and how the committees are leading NLC’s advocacy efforts. Federal Advocacy Committee meetings are not just for committee members – they are open to every local official registered to attend the conference. And during workshops on March 13 and 14, you’ll hear about the most pressing topics facing cities and learn about federal plans and proposals. Topics include:

  • Infrastructure plans and funding
  • Possible changes to the Affordable Care Act and impacts to cities
  • New technologies and strategies for your police force
  • Considerations when pursuing public private partnerships
  • How to effectively advocate for your city in Washington

During the general sessions, you’ll hear from political analyst and former White House Director of Communications Nicolle Wallace and bestselling author J.D. Vance. Finally, on March 15, join city leaders from across the country as we advocate for city priorities during NLC’s Capitol Hill Advocacy Day. Register today to join us and learn more about the conference here.

We look forward to seeing you and city leaders from around the country in our nation’s capital!

You can get to know more about NLC’s advocacy team of lobbyists and grassroots professionals through the “Meet Your City Advocate” blog series and by attending one of NLC’s seven Federal Advocacy Committee meetings at the conference.

About the authors:

mike_wallace_125x150Michael Wallace is the Interim Director of Federal Advocacy at the National League of Cities. Follow him on Twitter @MikeWallaceII.

 

Ashley Smith is the Senior Associate for Grassroots Advocacy at the National League of Cities. Follow Ashley @AshleyN_Smith.

The Trump Administration and Waters of the U.S.

President Donald Trump recently signed an executive order aimed at rolling back the Waters of the U.S. (WOTUS) rule, an Obama-era rule designed to protect the streams and wetlands that form the foundation of the nation’s water resources. What will happen to current WOTUS litigation following the president’s recent executive order?

(Getty Images)

Per the Clean Water Act, “Waters of the United States” (WOTUS) are parcels of land, such as the wetlands pictured above, which are federally regulated by the EPA and the Army Corps of Engineers. (Getty Images)

President Donald Trump’s executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule calls for the “rescinding or revising” of the Waters of the United States (WOTUS) definitional rule published in the summer of 2015. Many state and local governments objected to the broad nature of these regulations, in particular to the expansive definition of ditches and the ambiguous definition of tributaries.

“The EPA so-called Waters of the United States rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land,” said President Trump on Tuesday.

The executive order acknowledges that rewriting the WOTUS definitional regulations will require going through the lengthy and complicated process under the Administrative Procedures Act which the 2015 final regulations endured. This process involves proposing a new rule, receiving and responding to (likely thousands) of comments, and issuing a final rule.

The current WOTUS regulations are subject to complicated litigation. In October 2015, the Sixth Circuit issued a temporary stay of the regulations preventing them from going into effect nationally. In February 2016, the Sixth Circuit ruled that it, rather than a federal district court, has jurisdiction to rule on whether the WOTUS rule exceeded the Clean Water Act.

In January 2017 the Supreme Court agreed to review the Sixth Circuit ruling that an appellate court – not a district court – has jurisdiction to rule on WOTUS. This case, National Association of Manufacturers v. Department of Defense, will not be heard until late 2017, meaning the Supreme Court may not issue an opinion in this case until as late as June 2018.

What will be the fate of all this WOTUS litigation over the current rule in light of the executive order? We don’t know – but the executive order directs the Attorney General to “inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.”

The Attorney General may ask the Sixth Circuit to voluntarily vacate its decision temporarily staying the regulations, given that the new administration intends to change them. The Sixth Circuit is more likely to agree to this if none of the parties object. A number of states and environmental groups have intervened in support of the current WOTUS regulations and may object.

If the Sixth Circuit vacates the stay, the practical effect is that the current regulations would no longer be valid. Vacatur of the Sixth Circuit stay also would likely render moot the Supreme Court challenge on jurisdiction. If the Sixth Circuit refuses (or isn’t asked) to vacate the Sixth Circuit decision regarding the stay, the Supreme Court jurisdiction litigation is likely to proceed indefinitely.

Given that defining WOTUS has been so difficult and contentious, almost no matter what new definition is proposed it too will be subject to litigation.

The executive order instructs that Justice Antonin Scalia’s decision in Rapanos v. United States be “considered” in defining the term “navigable waters.” Rapanos is a 4-1-4 decision. Justice Scalia wrote the plurality opinion, defining this term more narrowly than Justice Kennedy’s solo concurring opinion. The Sixth Circuit considered Justice Anthony Kennedy’s opinion controlling. If the new definition of WOTUS relies on Justice Scalia’s opinion, it will almost certainly be challenged on this ground, along with many others.

Interested in more WOTUS news? Lisa Soronen contributed a previous CitiesSpeak blog post about the jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

When It Comes to Innovation, Partnerships Are Key

NLC’s Brooks Rainwater examines federalism in the context of innovation and explains why the Small Business Administration is of critical importance to cities.

(NLC)

(NLC)

In the first installment of this series, we looked at the basics of federalism and why it matters to cities. Part two focused on how affordable housing assistance has changed with the interpretation of federalism, and what that means for cities today, while part three examined federalism in the context of the American educational system. Today we’ll look at how local-federal partnerships support innovation and entrepreneurship.

Cities are laboratories for innovation. It’s no secret that it is in cities where local leaders are continuously seeking out innovative solutions for tough problems. We have seen this exhibited particularly well in the small business and startup space. Local leaders are accelerating the unique ideas that make all cities thrive through the development of innovation districts, business incubators and shared working spaces.

The entrepreneurial ecosystems that have sprung up across the country enable cities to leverage existing business and draw in new companies that help foster creativity and technological breakthroughs in our nation’s urban places.

This type of innovation is exhibited in not only the largest metropolitan regions of the country, but also in places like Chattanooga, Tennnessee; Coralville, Iowa; and Kansas City, Missouri. Whether one examines the industry-leading app development in Coralville or the way Chattanooga and Kansas City are leveraging the power of gigabit speed internet as a backbone, these cities show that specialization and nurturing creative home-grown ecosystems works quite well.

In our own recent work on Chattanooga’s innovation district, we found that one of the critical factors for success was clear goals and close coordination between the city, the business community, the university, and the nonprofit sector in order to catalyze success and develop a critical path forward. Utilizing and reimagining the downtown of the city was just one key factor here, with another being the mayoral leadership of Andy Berke tied together with long-standing civic engagement in the community.

The fact that top-selling education apps are coming out of Coralville, Iowa, is not an accident – it took deliberate planning and partnerships. This community is just outside the area referred to as the creative corridor and is thus able to leverage the talent and resources needed to grow. In Kansas City, the Kansas City Startup Village is a great example of an entrepreneurial community that supports the city’s startup ecosystem. With the city’s rollout of Google Fiber tied together with its smart city initiative, there are a number of critical components in place. Thanks to the leadership of Mayor Sly James on these issues and many more, the city is doing the right things to promote entrepreneurialism and grow startup businesses.

This innovation that we observe in cities has a great deal to do with local partnerships. We also need strong partnerships at the state and federal level because they play such an important role in helping innovation and economic development thrive. One key example of this is found in the innovative companies in every corner of the country that are part of the U.S. Small Business Administration’s Growth Accelerator Fund Competition, which helps grow amazing companies nationwide.

History of Federal Funding for Small Businesses

The Small Business Administration (SBA) was established in 1953 by President Dwight D. Eisenhower as an independent agency with the signing of the Small Business Act. Since then, the agency has been responsible for delivering millions of loans, contracts, counseling sessions and other forms of direct assistance to small businesses. Throughout its history, the SBA has at times been somewhat of a pawn in political chess, with levels of support waxing and waning depending on the administration in power.

Most recently, Linda McMahon, co-founder of World Wrestling Entertainment, was confirmed as the SBA administrator. During her Senate confirmation hearing, Administrator McMahon walked back statements regarding folding the SBA into the Commerce Department, saying her priority in the first few months would be disaster relief programs. With the strong role the SBA plays in supporting entrepreneurialism in cities, the hope is that ongoing partnerships can be maintained and grown in the coming years.

Why the SBA Matters to Cities

The SBA matters to cities for a multitude of reasons. Connecting small businesses with the SBA and SBA-approved lenders is a critical role of many local economic development officials. The SBA has recently been supportive of entrepreneurs in cities by encouraging cities to sign on to Startup in a Day, an effort built in partnership between the SBA and the National League of Cities (NLC) to streamline city permitting and licensing procedures.

The SBA also serves a rebuilding role in cities. It has frequently been called on to revitalize cities struck by riots and unrest, from the Long, Hot Summer of 1967 to Los Angeles in 1992 and Baltimore in 2015. While the amount of support the SBA provides to cities is critical for a number of reasons, at the end of the day the economy of the country is reliant on cities. This is why the federal relationship is so important. The SBA has a loan portfolio of $124 billion, and these dollars are directly related to the nation’s growth. The SBA provides important counseling, educational and technical assistance to cities as well.

A Path Forward for Startups & Innovation in Cities

In thinking about a path forward for startups and growing innovation in cities, it is necessary to reiterate the importance of maintaining and strengthening the federal relationship. If instead of growing this support decisions are made to diminish it, the decreased federal funding available to small businesses will ultimately hurt cities and, therefore, national economic growth.

It is necessary to create a strong plan focused on increasing entrepreneurialism in our country. Statistics show entrepreneurialism is nearing a 40-year low and the pace of IPOs has slowed. However, the nation is in a good position to turn that around – according to a new survey from JPMorgan, the leaders of small- and medium-sized businesses are saying they are more enthusiastic about the U.S. economy in 2017. That survey found that 68 percent of respondents were encouraged about the outlook for local economic conditions, representing an 18-point increase from 2016.

Let’s leverage that potential for growth with startups and others in the entrepreneurial community. Innovation will continue to percolate from the ground up – but in order to truly grow this opportunity, cities need a partner in the White House and in statehouses nationwide to unleash economic dynamism and continue innovating.

To learn more about what NLC is doing in this policy arena – and make your voice heard at the federal level – join us at the Congressional City Conference in Washington, D.C., March 11-15.

About the author: Brooks Rainwater is Senior Executive and Director of the Center for City Solutions and Applied Research at the National League of Cities. Follow Brooks on Twitter @BrooksRainwater.

What’s Next for the Supreme Court’s Transgender Bathroom Case?

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

hear oral argument in the case next month, if not before. (Getty Images)

Although the Supreme Court will hear oral arguments in the case next month, if not before, the Trump administration’s reversal of a rule on transgender students’ rights could potentially remove the case from the Court’s docket. (Getty Images)

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex. In a 2015 letter DOE interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

The Supreme Court has agreed to decide two questions in Gloucester County School Board v. G.G.  First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district, arguing that it discriminated against him in violation of Title IX. The Fourth Circuit Court ruled in favor of G.G, giving Auer deference to DOE’s letter.

Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 letter being rescinded, both parties still want the Supreme Court to decide this case. On SCOTUSblog, Amy Howe describes some of the Court’s options: “Among other things, they could send the case back to the Fourth Circuit for it to weigh in more fully on the Title IX question in light of the government’s changed position, or they could forge ahead and rule on that question themselves. At the very least, we should know more about the justices’ inclinations when they hear oral arguments in the case next month, if not before.”

Putting aside the factual context of this case, state and local governments, acting through the State and Local Legal Center, have criticized Auer deference in Supreme Court amicus briefs. The Gloucester County School Board asked the Supreme Court to decide whether to overturn Auer, but the Court refused to consider this question.

Two states – Tennessee and Arkansas – have passed laws that preempt local non-discrimination provisions.

“Preemption efforts – where state law nullifies a municipal ordinance or authority – lead to a loss of local control and can have far-reaching economic and social impacts in our communities,” said National League of Cities (NLC) CEO and Executive Director Clarence E. Anthony. NLC’s latest report, City Rights in an Era of Preemption, examines the prevalence of state preemption across the country.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.