Situational Awareness
The Senate left Washington, D.C. last Friday after a failed procedural vote on a bipartisan tax package that would expand the child tax credit and roll back some changes to the tax code made by the Tax Cuts and Jobs Act. The package was the result of bipartisan, bicameral negotiations between House Ways and Means Chair Jason Smith (R-Mo.) and Senate Finance Chair Ron Wyden (D-Wash.). Despite passing the House with overwhelming support earlier this year, opposition from Senate Finance Ranking Member Mike Crapo (R-Idaho) and other top GOP senators doomed its chances in the upper chamber.
Senate Majority Leader Chuck Schumer (D-N.Y.) put the bill on the floor after calls from several Senate Democratic lawmakers facing tough re-elections. Those members are looking for votes to take home to the campaign Schumer felt Republican opposition to a broadly popular tax package would provide. Ultimately, three Republicans voted to begin floor debate while two Independents who caucus with Senate Democrats (Joe Manchin of West Virginia and Bernie Sanders of Vermont) did not back the cloture vote.
With only three work weeks remaining between the end of the August recess and the beginning of October, when lawmakers return to their respective states to campaign ahead of election day, Congress’s focus will be on the 12 appropriations bills that expire at the end of September. Significant discrepancies between the House and Senate spending bills, from topline levels to policy riders, remain, and lawmakers are already discussing the length of a continuing resolution (CR) to extend FY 2024 spending beyond the election, and potentially into the new year.
Before the end of the fiscal year, members of Congress must also either finalize work on the annual FY 25 National Defense Authorization Act (NDAA) and the Farm Bill, or pass additional short-term extensions for each package. The Farm Bill, originally scheduled to be considered last year, was extended through FY 2024 after lethargic progress. Earlier this summer, the House advanced its own version of the NDAA. The legislation was a non-starter in the Senate as a result of several controversial “culture war” amendments being attached to the defense policy package.
Harris VP Announcement Expected Tuesday
Over the weekend, Vice President Kamala Harris held a series of meetings in Washington, D.C., with several running mate candidates, including Senator Mark Kelly of Arizona, Pennsylvania Governor Josh Shapiro and Minnesota Governor Tim Walz. Additional contenders include Kentucky Governor Andy Beshear, Illinois Governor J.B. Pritzker and Transportation Secretary Pete Buttigieg. The vice president, who officially became the Democratic presidential nominee last week in a virtual roll call vote with party delegates, is expected to announce her VP during a rally in Philadelphia on Tuesday. After the announcement, Harris and her yet-to-be-named running mate will campaign across seven swing states over the course of five days.
While the vice president candidate has nominal influence in a presidential election, there are only three months for Harris to familiarize voters with her own policy platform and broader vision for the country, and whoever she selects could help to bolster certain issue areas or messaging gaps that her campaign team has simply not had the time to address. For instance, some observers speculate that Sen. Kelly’s (D-Ariz.) record on immigration would minimize recent rhetoric on Harris’s handling of addressing the root cause of migration across southern border.
Fifth Circuit Takes Up Trump Overtime Rule Lawsuit
This week, the U.S. Court of Appeals for the Fifth Circuit will consider the U.S. Department of Labor’s ability to set limits on exemptions to overtime pay requirements in a case that could derail the Biden administration’s latest rulemaking to expand overtime protections to millions of workers. The dispute before the Fifth Circuit involves a business owner’s appeal challenging a 2019 rule that limited an exemption to overtime pay requirements. The Trump-era rule set the overtime salary threshold to $35,568 a year.
The plaintiff in Mayfield v. DOL has argued that the DOL shouldn’t be able to consider how much a worker makes at all when determining who is eligible for the overtime exemption because the corresponding Fair Labor Standards Act (FLSA) provision doesn’t authorize the agency to dictate salary levels. While the FLSA gives the DOL secretary the authority to “define and delimit” the overtime exemption, Mayfield and his attorneys contend that language only gives the DOL the power to look at an employee’s job duties to determine if they are exempt from overtime pay requirements. In September 2023, a federal judge in the Western District of Texas held that the DOL does have statutory authority to impose a minimum salary requirement. The plaintiff appealed that ruling.
The proceedings in the Fifth Circuit case present an early test of how the appeals court will navigate the Supreme Court’s recent ruling in Loper Bright Enterprises v. Raimondo, which reversed the decades-old Chevron doctrine. The Court determined in Loper that courts may not defer to the interpretation of federal agencies because a statute is ambiguous.
Sixth Circuit Overrules Kentucky’s Loss on Biden WOTUS Rule
In a short, unsigned opinion issued last week, a federal judge in the US Court of Appeals for the Sixth Circuit found that a lower court made an error in judgment when it tossed out a lawsuit (Kentucky v. EPA) filed by the state of Kentucky challenging the Environmental Protection Agency’s (EPA) amended WOTUS rule. Last April, the U.S. District Court for the Eastern District of Kentucky held that Kentucky could not show how it was currently being injured by the Biden administration’s WOTUS rule. The district court therefore held that the case was not ripe for review.
In vacating the Eastern District of Kentucky’s ruling, the Sixth Circuit gave the plaintiffs allowance to either to amend their present complaint, file notice of their intent to file a new suit or dispense with its challenge to the rule altogether. The court also acknowledged that many of Kentucky’s original complaints had been resolved after the Biden administration revised its WOTUS rule in conjunction with the Supreme Court’s ruling in Sackett v. EPA, which directed the EPA and Army Corps of Engineers to revise their original rule that expanded Clean Water Act protections over wetlands.
Thursday Webcast: State of the Restaurant Industry
Join us Thursday, August 8, at 2pm ET for an in-depth presentation on how clubs can benefit from the latest data and trends in the restaurant industry. Chad Moutray, Ph.D., CBE, vice president of research and knowledge at the National Restaurant Association, will lead the conversation, providing insights on how clubs can keep members coming back to dine.
This webcast is free and available to the entire club industry. Register Here.
ICYMI: The State of Lawmaking
The summer issue of Club Director, released last week, delves into the current state of lawmaking following significant events involving Former President Trump and President Biden. Rob Smith, senior vice president at Platinum Advisors, which partners with NCA on legislative issues affecting the private club industry, shares his thoughts on how Congress and the Biden administration are expected to proceed. You can read the new Advocating column here. NCA members, sign in with your email address—no password required.