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Using the Power of the Purse to Change Policy: SCOTUS Case on ACA Risk Corridors Asks Important Appropriations Law Question [November 1, 2019]
From the Document: "In the world of recent litigation involving the Patient Protection and Affordable Care Act (ACA), most attention has focused on the ongoing litigation in the U.S. Court of Appeals for the Fifth Circuit surrounding the constitutionality of the individual mandate. However, the Supreme Court is scheduled to hear several cases involving another, perhaps lesser known provision of the ACA concerning 'risk corridors.' While the risk corridors cases--three cases consolidated under the lead case of 'Maine Community Health Options v. United States'--do not raise a question as to the validity of the entire ACA, they do raise important issues regarding the interpretation of appropriations acts, particularly when such acts conflict with authorizing statutes. After providing some background on the statutory provisions at issue, this Sidebar discusses relevant Supreme Court precedent regarding resolution of those conflicts and the broader implications that the risk corridor cases may have."
Library of Congress. Congressional Research Service
Liu, Edward C.
2019-11-01
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NSA Surveillance Leaks: Background and Issues for Congress [July 2, 2013]
"Recent media stories about National Security Agency (NSA) surveillance address unauthorized disclosures of two different intelligence collection programs. These programs arise from provisions of the Foreign Intelligence Surveillance Act (FISA). However, they rely on separate authorities, collect different types of information, and raise different policy questions. As such, where possible, the information contained in this report distinguishes between the two. For both programs, there is a tension between the speed and convenience with which the government can access data of possible intelligence value and the mechanisms intended to safeguard civil liberties. The first program collects and stores in bulk domestic phone records that some argue could be gathered to equal effect through more focused records requests. The second program targets the electronic communications of non-U.S. citizens but may incidentally collect information about Americans. The following sections address (1) what information is being collected; (2) the legal basis for the collection; (3) existing oversight mechanisms; and (4) arguments for and against the two programs. The last section of this report discusses legislation that has been proposed in response to information disclosed about NSA surveillance. Because documents leaked to the news media may be classified, CRS [Congressional Research Service] is precluded from providing a detailed analysis of the content of those documents. The information in this report is based largely on public comments from intelligence officials and Members of Congress."
Library of Congress. Congressional Research Service
Erwin, Marshall Curtis; Liu, Edward C.
2013-07-02
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NSA Surveillance Leaks: Background and Issues for Congress [September 4, 2013]
"Recent attention concerning National Security Agency (NSA) surveillance pertains to unauthorized disclosures of two different intelligence collection programs. Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and under which authorities the NSA is acting. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities. The first program collects in bulk the phone records--including the number that was dialed from, the number that was dialed to, and the date and duration of the call--of customers of Verizon and possibly other U.S. telephone service providers. It does not collect the content of the calls or the identity of callers. The data are collected pursuant to Section 215 of the USA PATRIOT ACT, which amended the Foreign Intelligence Surveillance Act (FISA) of 1978. Section 215 allows the FBI, in this case on behalf of the NSA, to apply to the Foreign Intelligence Surveillance Court (FISC) for an order compelling a person to produce 'any tangible thing,' such as records held by a telecommunications provider, if the tangible things sought are 'relevant to an authorized investigation.' Some commentators have expressed skepticism regarding how such a broad amount of data could be said to be 'relevant to an authorized investigation,' as required by the statute."
Library of Congress. Congressional Research Service
Liu, Edward C.; Rollins, John
2013-09-04
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Congress Considers Reform to Queries of FISA Information as Reauthorization Deadline Approaches [January 8, 2018]
"Title VII of the Foreign Intelligence Surveillance Act (FISA) is currently scheduled to sunset on January 19, 2018. Of the expiring provisions, Section 702, which authorizes 'programmatic' surveillance of non-U.S. persons while they are outside of the United States, has received the greatest amount of attention, possibly because Section 702 provides the Attorney General (AG) and Director of National Intelligence (DNI) more leeway to authorize surveillance than other FISA provisions. Generally, before the AG and DNI may authorize electronic surveillance under Title VII, the Foreign Intelligence Surveillance Court (FISC) must issue an order finding, inter alia, that probable cause exists to believe that the target of the proposed surveillance is a foreign power or an agent of a foreign power. Pursuant to Section 702, however, the AG, in consultation with the DNI, develop targeting and minimization procedures to identify targets and acquire communications, which they submit to the FISC for approval. The AG and DNI also certify to the FISC that surveillance of a target will comply with Section 702, including the proposed targeting and minimization procedures."
Library of Congress. Congressional Research Service
Liu, Edward C.
2018-01-08
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Congressional Access to the President's Federal Tax Returns [Updated April 4, 2019]
From the Document: "The Chair of the House Ways and Means Committee is reportedly preparing to send a request to the Treasury Department's Internal Revenue Service (IRS) to obtain President Trump's federal tax returns. This request appears prompted by the President's departure from the past practice of sitting presidents and presidential candidates voluntarily disclosing their recent tax returns. This Sidebar analyzes the ability of a congressional committee to obtain the President's tax returns under provisions of the Internal Revenue Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a committee request for the returns; and, if a committee successfully acquires the returns, whether those returns legally could be disclosed to the public."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Garvey, Todd; Liu, Edward C.
2019-04-04
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Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments [April 1, 2014]
"Beginning in the summer of 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each. A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public's awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in 'ACLU v. Clapper', the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. However, in 'Klayman v. Obama', the federal District Court for the District of the District of Columbia disagreed and held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful."
Library of Congress. Congressional Research Service
Liu, Edward C.; Nolan, Andrew; Thompson, Richard M., II
2014-04-01
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Submission of Mental Health Records to NICS and the HIPAA Privacy Rule [February 20, 2014]
"Questions about the scope and efficacy of the background checks required during certain firearm purchases have gained prominence following recent mass shootings. These background checks are intended to identify whether potential purchasers are prohibited from purchasing or possessing firearms due to one or more 'prohibiting factors,' such as a prior felony conviction or a prior involuntary commitment for mental health reasons. Operationally, such background checks primarily use information contained within the National Instant Criminal Background Check System (NICS) and a particular focus of the debate in Congress has been whether federal privacy standards promulgated under the Health Insurance Portability and Accountability Act (i.e., the HIPAA [Health Insurance Portability and Accountability Act] Privacy Rule) or state privacy laws are an obstacle to the submission of mental health records to NICS. […] In February 2013, the Department of Health and Human Services (HHS) announced its intention to amend the HIPAA Privacy Rule to remove any potential impediments to state reporting of some mental health records to NICS, and on January 7, 2014, HHS issued its proposed rule that would modify the HIPAA Privacy Rule. The Department of Justice (DOJ) also issued a proposed rule that would clarify the terms 'adjudicated as a mental defective' and 'committed to a mental institution.'"
Library of Congress. Congressional Research Service
Redhead, C. Stephen; Chu, Vivian S.; Bagalman, Erin . . .
2014-02-20
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Requiring Individual to Obtain Health Insurance: A Constitutional Analysis [November 15, 2011]
"As part of the Patient Protection and Affordable Care Act (PPACA), P.L. 111-148, as amended, Congress enacted a 'minimum essential coverage requirement,' a provision compelling certain individuals to have a minimum level of health insurance (i.e., an 'individual mandate'). Individuals who fail to do so may be subject to a monetary penalty, administered through the tax code. Although the federal government provides health coverage for individuals through federal programs such as Medicare, it had never before required individuals to purchase health insurance. This report analyzes certain constitutional issues raised by compelling individuals to purchase health insurance. It addresses the authority of Congress to pass a law of this nature under its taxing power or its power to regulate interstate commerce. With regard to the taxing power, the requirement to purchase health insurance might be construed as a tax and upheld so long as it was found to comply with the constitutional restrictions imposed on direct and indirect taxes. […] On August 12, 2011, the Eleventh Circuit held that the minimum essential coverage requirement is unconstitutional. Conversely, the Sixth Circuit in 'Thomas More Law Center v. Obama' upheld the minimum essential coverage requirement as a constitutional exercise of the Commerce Clause. Other courts, such as the Fourth Circuit in 'Virginia v. Sebelius and Liberty University v. Geithner', dismissed these challenges, not based on the merits of the case, but for procedural reasons. Several petitions for Supreme Court review were filed, and on November 14, 2011, the Supreme Court agreed to hear the appeal in the Florida case. Oral arguments in this case are expected to take place in March 2012."
Library of Congress. Congressional Research Service
Staman, Jennifer; Brougher, Cynthia M.; Liu, Edward C.
2011-11-15
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State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation [July 13, 2011]
"The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of 'United States v. Reynolds', 345 U.S. 1 (1953). In 'Reynolds', the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect […] The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. Most recently, in May of 2011, the Supreme Court held that the valid invocation of the state secrets privilege could render a defense contracting dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial remedies to enforce the contract. This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice."
Library of Congress. Congressional Research Service
Garvey, Todd; Liu, Edward C.
2011-07-13
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State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation [August 16, 2011]
"The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of 'United States v. Reynolds', 345 U.S. 1 (1953). In 'Reynolds', the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department that has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very matter the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by a court. […] Recently, the privilege has been characterized by a number of highprofile assertions--including invocation of the privilege to defend against claims arising from the government's 'extraordinary rendition' practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. Most recently, in May of 2011, the Supreme Court held that the valid invocation of the state secrets privilege could render a defense contracting dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial remedies to enforce the contract. This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice."
Library of Congress. Congressional Research Service
Garvey, Todd; Liu, Edward C.
2011-08-16
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Reauthorization of the FISA Amendments Act [January 2, 2013]
"Reauthorizations of expiring provisions of the Foreign Intelligence Surveillance Act (FISA) have been an annual occurrence in Congress since 2009. Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). Most recently, in 2011, these three provisions were extended until June 1, 2015. […] In contrast, the reauthorization debated and passed in 2012 deals with Title VII of FISA, as added by the FISA Amendments Act of 2008. Title VII is only tangentially related to the subjects of the previous years' debates in that it amends the same statute. Therefore, the legislative activity in prior years should be conceptually separated from the current debate and legislation that would address the expiration of Title VII of FISA at the end of this year. This report describes the changes that were made by the FISA Amendments Act within the context of the government's authority to conduct surveillance for foreign intelligence purposes."
Library of Congress. Congressional Research Service
Liu, Edward C.
2013-01-02
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Congressional Access to the President's Federal Tax Returns [Updated May 7, 2019]
From the Document: "The Chair of the House Ways and Means Committee is reportedly preparing to send a request to the Treasury Department's Internal Revenue Service (IRS) to obtain President Trump's federal tax returns. This request appears prompted by the President's departure from the past practice of sitting presidents and presidential candidates voluntarily disclosing their recent tax returns. This Sidebar analyzes the ability of a congressional committee to obtain the President's tax returns under provisions of the Internal Revenue Code (IRC); whether the President or the Treasury Secretary might have a legal basis for denying a committee request for the returns; and, if a committee successfully acquires the returns, whether those returns legally could be disclosed to the public."
Library of Congress. Congressional Research Service
Carpenter, David Hatcher; Garvey, Todd; Liu, Edward C.
2019-05-07
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Supreme Court Stays Injunction That Had Blocked a Portion of the Administration's Border Wall Funding [Updated July 29, 2019]
From the Document: "On July 26, 2019, the Supreme Court in a divided decision stayed a June 28 injunction issued by a federal district court in California that had permanently prohibited the Trump Administration from using Sections 8005 and 9002 of the 2019 Department of Defense Appropriations Act to transfer any of the $2.5 billion it had proposed to use for border-barrier projects. The Trump Administration had appealed the district court's permanent injunction to the U.S. Court of Appeals for the Ninth Circuit and asked that court to stay the injunction pending appeal, but the Ninth Circuit denied the Trump Administration's request earlier this month. In its order issuing a stay, the Supreme Court stated that '[a]mong the reasons' for its order was that the Trump Administration had 'made a sufficient showing . . . that the plaintiffs have no cause of action to obtain review of' the Administration's transfer of funds pursuant to the 2019 Department of Defense Appropriations Act (discussed below). The Court did not rule on the lawfulness of the Trump Administration's actions. The stay is in effect during the pendency of the Trump Administration's appeal until the resolution of any petition for certiorari to the Supreme Court. As a result, the Trump Administration may now use funds transferred under Sections 8005 and 9002 to pay for border barrier construction."
Library of Congress. Congressional Research Service
Liu, Edward C.; Hayes, Benjamin
2019-07-29
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HPSCI Memorandum Sparks Debate Over FISA Application Requirements [February 14, 2018]
"The recent disclosure by the House Permanent Select Committee on Intelligence (HPSCI) of a declassified memorandum written by HPSCI majority staff has sparked a renewed conversation about the government's longstanding authority to conduct electronic surveillance on U.S. citizens pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended. [...] A central factual question that appears to be disputed by the competing memoranda is the degree to which information potentially undermining the FISA application's reliability was omitted from the application. Although CRS is not in a position to answer that factual question, this Sidebar endeavors to explain the legal requirements regarding the government's obligation to include countervailing information in FISA applications."
Library of Congress. Congressional Research Service
Liu, Edward C.
2018-02-14
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Whose Line is it Anyway: Could Congress Give the President a Line-Item Veto? [March 27, 2018]
"In announcing his intention to sign H.R. 1625, the 'Consolidated Appropriations Act, 2018,' President Trump, noting his concerns over the fiscal size of the bill, called on Congress to provide him with a 'line-item veto for all government spending bills.' Two days later, the Secretary of the Treasury, Steven Mnuchin, similarly maintained that Congress 'should give the president a line-item veto.' These remarks resulted in immediate rebukes by several commentators, who, citing the Supreme Court's 1998 ruling in Clinton v. City of New York, argued that the Court already resolved the legality of the line-item veto by striking down such a provision in a 1996 law. At the same time, the Trump Administration's calls for a line-item veto echo those of other Presidents who sought such authority even after City of New York, under the premise that the invalidated law could be revised to address the Court's objections. Because Congress has not enacted any such proposals, the question remains whether the High Court's 1998 ruling wholly forecloses Congress's ability to authorize the President's veto of individual provisions of spending legislation. This Sidebar provides an overview of the Court's decision in City of New York and examines what (if any) possibility exists for a constitutional, line-item veto authority for the President."
Library of Congress. Congressional Research Service
Nolan, Andrew; Garvey, Todd; Liu, Edward C.
2018-03-27
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Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act [Updated August 31, 2016]
From the Summary: "A criminal prosecution involving classified information may cause tension between the government's interest in protecting classified information and the criminal defendant's right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as 'graymail,' led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information. Examples of recent cases implicating CIPA have arisen in the context of prosecutions against alleged terrorists, as well as prosecutions involving the unauthorized disclosure of classified information by former intelligence officials."
Library of Congress. Congressional Research Service
Liu, Edward C.
2016-08-31
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Federal Court Temporarily Blocks a Portion of the Administration's Border Wall Funding [June 17, 2019]
From the Document: "In recent months, the Trump Administration has taken steps to secure additional funds to pay for the construction of barriers along the U.S.-Mexico border, and various entities have brought suits challenging the lawfulness of those actions. On May 24, 2019, the U.S. District Court for the Northern District of California issued a preliminary injunction in one lawsuit, 'Sierra Club v. Trump,' barring the Administration from using funds reprogrammed under Section 8005 of the 2019 Department of Defense Appropriations Act to pay for specified barrier construction projects in New Mexico and Arizona while the lawsuit is pending. But the court declined to issue a preliminary injunction with respect to any construction project not involved in that lawsuit (even if Section 8005 is used to fund the project) or to opine on the lawfulness of the Trump Administration's other proposed funding sources. This Sidebar discusses the district court's determination that Section 8005 does not authorize the transfer of funds for border wall construction. Next, it addresses how the court dealt with the Administration's use of other funding sources. Finally, the Sidebar identifies potential considerations for Congress."
Library of Congress. Congressional Research Service
Liu, Edward C.; Hayes, Benjamin
2019-06-17
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Ebola: Selected Legal Issues [December 16, 2014]
"Several West African countries are currently grappling with an unprecedented outbreak of Ebola virus disease (EVD). Here in the United States, where Ebola is not endemic, a handful of EVD cases have been diagnosed, and domestic transmission of the virus has occurred in only two cases to date. This report provides a brief overview of selected legal issues regarding measures to prevent transmission of Ebola virus and the civil rights of individuals affected by the disease. Quarantine and isolation are restrictions on a person's movement, imposed to prevent the spread of contagious disease. The federal government has jurisdiction over interstate and border quarantine, carried out by the Centers for Disease Control and Prevention (CDC). However, primary quarantine authority typically resides with state health departments and health officials. Every state has the authority to pass and enforce quarantine laws as an exercise of its police powers, but these laws may vary widely by state. State and federal quarantine or isolation orders may be subject to suits alleging inadequate due process or violations of equal protection, but modern legal challenges to quarantine and isolation orders are not extensive. […] The use of these measures to contain the spread of Ebola may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? In addition to the constitutional issues noted above, discrimination against individuals with an infectious disease may be covered by Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), or the Air Carrier Access Act (ACAA). While quarantine and isolation effectively minimize Ebola exposure, they may also raise various employment concerns, particularly for those workers who fear losing their jobs or wages if they are forced to comply with a quarantine or isolation order. Infected workers may also be protected under the Family and Medical Leave Act (FMLA) if it can be established that they have a serious health condition, and employers whose employees could face workplace exposure to Ebola virus may be obligated to comply with applicable Occupational Safety and Health Administration (OSHA) requirements."
Library of Congress. Congressional Research Service
Cole, Jared P.; Perry, Rodney M.; Dolan, Alissa M. . . .
2014-12-16
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Terminating Contracts for the Government's Convenience: Answers to Frequently Asked Questions [February 3, 2015]
"'Termination for convenience' refers to the exercise of the government's right to bring to an end the performance of all or part of the work provided for under a contract prior to the expiration of the contract 'when it is in the Government's interest' to do so. […] Where termination for convenience is concerned, the 'Government's interest' is broadly construed. Federal courts and agency boards of contract appeals have recognized the government's interest in terminating a contract when (1) the government no longer needs the supplies or services covered by the contract; (2) the contractor refuses to accept a modification of the contract; (3) questions have arisen regarding the propriety of the award or continued performance of the contract; (4) the contractor ceases to be eligible for the contract awarded; (5) the business relationship between the agency and the contractor has deteriorated; or (6) the agency has decided to restructure its contractual arrangements or perform work in-house. Terminations in other circumstances could also be found to be in the 'Government's interest.' […] As a rule, the government cannot be held liable for breach when it exercises its right to terminate contracts for convenience because it has the contractual and/or inherent right to do so. This means that contractors generally cannot recover anticipatory profits or consequential damages when the government terminates a contract for convenience. The contractor is, however, entitled to a termination settlement, which, in part, represents the government's consideration for its right to terminate. The composition of any termination settlement can vary depending upon which of the 'standard' Termination for Convenience clauses is incorporated into the contract, among other factors."
Library of Congress. Congressional Research Service
Manuel, Kate; Lunder, Erika; Liu, Edward C.
2015-02-03
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Potential Impact of the Second Circuit's Ruling Against Bulk Collection on USA PATRIOT Act Reauthorization [May 8, 2015]
"On May 7, 2015, a federal appeals court issued a decision in American Civil Liberties Union v. Clapper that could have significant implications for both the telephone metadata collection program operated by the National Security Agency (NSA) and the legislative debate surrounding consideration of the USA FREEDOM Act of 2015 (H.R. 2048 S. 1123) currently taking place in the House and the Senate. While the ruling did not reach the question of whether the collection itself was a violation of the Fourth Amendment, the court did reject the government's use of Section 215 of the USA PATRIOT Act of 2001 (as amended) to effectuate the bulk collection of telephone records by the NSA."
Library of Congress. Congressional Research Service
Liu, Edward C.
2015-05-07
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Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization in Brief [May 19, 2015]
"This is an abbreviated version of an earlier report, CRS Report R40980, 'Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization'. Both discuss the legal background associated with the sunset of various provisions of the USA PATRIOT Act and of subsequent related legislation, although neither report seeks to track contemporary legislative developments. Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept email and telephone conversations and to search homes and businesses. […] Subsequent legislation made most of these changes permanent. However, a number of authorities affecting the collection of foreign intelligence information are still temporary. For example, subsequent legislation set June 1, 2015, as the expiration date for three such provisions (the lone wolf, roving wiretap, and business record sections of FISA). Additionally, provisions added by the FISA Amendments Act of 2008, relating to the use of foreign intelligence tools to target individuals while they are reasonably believed to be abroad, will expire on December 31, 2017."
Library of Congress. Congressional Research Service
Liu, Edward C.; Doyle, Charles
2015-05-19
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Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments [May 21, 2015]
"Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each."
Library of Congress. Congressional Research Service
Liu, Edward C.; Nolan, Andrew; Thompson, Richard M., II
2015-05-21
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Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) [April 13, 2016]
"After the attacks of September 11, 2001, President George W. Bush authorized the National Security Agency to conduct a Terrorist Surveillance Program (TSP) to 'intercept international communications into and out of the United States' by 'persons linked to al Qaeda or related terrorist organizations.' After the TSP activities were concluded in 2007, Congress enacted the Protect America Act (PAA, P.L. 110-55), which established a mechanism for the acquisition, via a joint certification by the Director of National Intelligence (DNI) and the Attorney General (AG), but without an individualized court order, of foreign intelligence information concerning a person reasonably believed to be outside the United States. This temporary authority ultimately expired after approximately six months, on February 16, 2008. Several months later, Congress enacted the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (P.L. 110-261), which created separate procedures for targeting non-U.S. persons and U.S. persons reasonably believed to be outside the United States under a new Title VII of FISA. Title VII of FISA was reauthorized in late 2012 (P.L. 112-238); this authority now sunsets on December 31, 2017."
Library of Congress. Congressional Research Service
Liu, Edward C.
2016-04-13
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Reauthorization of the FISA Amendments Act [April 8, 2013]
"Reauthorizations of expiring provisions of the Foreign Intelligence Surveillance Act (FISA) have been an annual occurrence in Congress since 2009. Prior to 2012, the legislative debate and reauthorizations largely dealt with three amendments to FISA that are commonly linked to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). Most recently, in 2011, these three provisions were extended until June 1, 2015. For a more detailed discussion of these three provisions, see CRS [Congressional Research Service] Report R40138, 'Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015', by Edward C. Liu. In contrast, the reauthorization debated and passed in 2012 deals with Title VII of FISA, as added by the FISA Amendments Act of 2008. Title VII is only tangentially related to the subjects of the previous years' debates in that it amends the same statute. Therefore, the legislative activity in prior years should be conceptually separated from the current debate and legislation that would address the expiration of Title VII of FISA at the end of this year. This report describes the changes that were made by the FISA Amendments Act within the context of the government's authority to conduct surveillance for foreign intelligence purposes. On December 30, 2012, President Obama signed H.R. 5949, the FISA Amendments Act Reauthorization Act of 2012, which extends Title VII of FISA until December 31, 2017."
Library of Congress. Congressional Research Service
Liu, Edward C.
2013-04-08
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Retroactive Immunity Provided by the FISA Amendments Act of 2008 [July 25, 2008]
"On July 10, 2008, P.L. 110-261, entitled the FISA [Foreign Intelligence Surveillance Act Amendments Act] of 2008, was signed into law. Although many of the changes enacted by the FISA Amendments Act were controversial, one particularly contentious issue was whether to grant retroactive immunity to telecommunications providers that may have facilitated warrantless surveillance by the federal government under a Terrorist Surveillance Program between 2001 and 2007. Proponents of retroactive immunity argued that it was necessary to assure private cooperation with critical intelligence investigations. On the other hand, opponents of retroactive immunity argued that its inclusion undermined the statutory penalties that were designed to deter unlawful intrusions into individual liberties. This report discusses the various retroactive immunity mechanisms that were proposed to be included in the FISA Amendments Act, one of which was ultimately adopted, and their likely effect on lawsuits facing telecommunications providers. Retroactive immunity is more than simply protection from liability; it can also act as protection from the cost of litigation. Without retroactive immunity, many legal issues would need to be addressed, possibly at great expense, in order to resolve these lawsuits. The plaintiffs would need to show that the actions of the defendants were not lawful. The Bush Administration's theory of inherent wiretapping ability might need to be litigated. Additionally, the applicability of the state secrets privilege to these cases might be the subject of litigation. As enacted, the FISA Amendments Act lays out a procedure for the Attorney General to bring about the dis missal of lawsuits alleging unlawful participation in the Terrorist Surveillance Program (TSP). In order for a suit to be dismissed by a court, the Attorney General must certify that the defendant provided assistance in connection with the TSP and was given written assurances that the program was authorized by the President and determined to be lawful. The Attorney General could also certify that the alleged assistance was not in fact provided by the defendant. All parties are permitted to submit documents and arguments relevant to dismissal which the court may consider. Dismissal is only proper if the court finds, based upon its review, that the Attorney General's certification is supported by 'substantial evidence.'"
Library of Congress. Congressional Research Service
Liu, Edward C.
2008-07-25
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Closing the Guantanamo Detention Center: Legal Issues [May 30, 2013]
"Following the terrorist attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF), which granted the President the authority 'to use all necessary and appropriate force against those ... [who] planned, authorized, committed, or aided the terrorist attacks' against the United States. Many persons subsequently captured during military operations in Afghanistan and elsewhere were transferred to the U.S. Naval Station at Guantanamo Bay, Cuba, for detention and possible prosecution. Although nearly 800 persons have been held at Guantanamo since early 2002, the substantial majority of Guantanamo detainees have been transferred to another country for continued detention or release. […] This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different forums (i.e., federal courts, court-martial proceedings, and military commissions)."
Library of Congress. Congressional Research Service
Garcia, Michael John; Elsea, Jennifer; Mason, R. Chuck . . .
2013-05-30
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Employment-Based Health Coverage and Health Reform: Selected Legal Considerations [June 12, 2009]
"It has been estimated that nearly 170 million individuals, or approximately 64% of the nonelderly population, have employer-based health coverage in the United States. While under federal law, employers are not required to provide coverage to employees, many do so voluntarily. Employment-based insurance has several strengths, including risk pools that are not formed on the basis of health status, ease of acquisition by workers, and tax subsidies that exceed those for individual market insurance. In addition, employers may have greater negotiating power with an insurance company than does an individual consumer. On the other hand, plans chosen by employers may not meet individual workers' needs, and changing jobs may require obtaining both new insurance and new doctors. Nevertheless, given that employers are a large source of financing for health coverage in the United States, whether employment-based insurance should be strengthened, weakened, or kept the same is likely to be evaluated by Congress. If Congress chooses to amend the employer-based system as part of a federal health reform effort, it is possible that two primary federal laws governing employer-based coverage, Employee Retirement Income Security Act and the Internal Revenue Code, may be the vehicle for making changes. This report provides an analysis of selected legal considerations in amending these two federal laws."
Library of Congress. Congressional Research Service
Staman, Jennifer; Liu, Edward C.
2009-06-12
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The Independent Payment Advisory Board (IPAB): Frequently Asked Questions [March 17, 2017]
"This report responds to frequently asked questions about the Independent Payment Advisory Board (IPAB), including the board's background, current status, controversial issues including legal challenges, and recent legislative efforts to repeal the IPAB. For additional information, see CRS Report R41511, The Independent Payment Advisory Board, by Jim Hahn and Christopher M. Davis."
Library of Congress. Congressional Research Service
Hahn, Jim; Davis, Christopher M., 1966-; Liu, Edward C.
2017-03-17
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Patient Protection and Affordable Care Act's (ACA's) Transitional Reinsurance Program [November 16, 2016]
"Section 1341 of the Patient Protection and Affordable Care Act (ACA; P.L. [Public Law] 111-148, as amended) establishes a transitional reinsurance program that is designed to provide payment to non-grandfathered, non-group market health plans (also known as 'individual' market health plans) that enroll high-risk enrollees for 2014 through 2016. Under the program, the Secretary of the Department of Health and Human Services (HHS) collects reinsurance contributions from health insurers and from third-party administrators on behalf of group health plans. [...] This report provides an overview of one of the three risk-mitigation programs, the transitional reinsurance program. The program's aim is to offset the expenditures associated with high-cost individuals. The first section of the report provides background information on reinsurance and the ACA risk-mitigation programs. The second section describes the components of the transitional reinsurance program, as well as the amounts currently collected and remitted through the program. The third section discusses questions, including those raised by a recent Government Accountability Office report, regarding the scope of HHS's authority to administer the transitional reinsurance program. The last section briefly summarizes relevant legislation regarding the transitional reinsurance program. Finally, the report includes a table in the Appendix that summarizes key aspects of the transitional reinsurance program."
Library of Congress. Congressional Research Service
Uberoi, Namrata K.; Liu, Edward C.
2016-11-16
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Department of Health and Human Services Halts Cost-Sharing Reduction (CSR) Payments [October 26, 2017]
"Over the past three years, the House of Representatives and the Department of Health and Human Services (HHS) have been adverse parties in a suit challenging HHS's payment of cost-sharing reduction (CSR) subsidies under Section 1402(c)(3) of the Patient Protection and Affordable Care Act (ACA). CSR payments are made to compensate those insurers that are required by the ACA to reduce out-of-pocket costs (such as co-pays and deductibles) for lower-income enrollees. After the House obtained a judgment against HHS from the U.S. District Court for the District of Columbia in 2016, an appeal has been pending before the U.S. Court of Appeals for the District of Columbia (D.C. Circuit). However, the case, currently captioned House of Representatives v. Hargan, took a sharp turn on October 13, 2017, when HHS informed the D.C. Circuit that the agency would immediately comply with the House's demand and cease cost-sharing reduction (CSR) payments to insurers."
Library of Congress. Congressional Research Service
Liu, Edward C.; Staman, Jennifer
2017-10-26
