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Eno Transportation Weekly

Government to Reopen Through Feb. 15

January 25, 2019 – 5:00 p.m.

President Trump today reversed course and agreed to sign a short-term continuing appropriations resolution reopening the federal government while negotiations continue on homeland security funding and U.S.-Mexico border issues. His full remarks are here.

Just before 4:40 p.m., the Senate passed two related pieces of legislation, both of which will have to be agreed to by the House:

  • H. J. Res. 28, which was a House-passed CR to extend all unfunded agencies and accounts through February 28 – passed the Senate with a McConnell (R-KY) amendment changing the expiration date to February 15. (We haven’t seen the actual text yet but the McConnell amendment is said to be a simple date change.)
  • H. J. Res. 31, which was a House-passed CR to extend the Department of Homeland Security (and nothing else) through February 28 – passed the Senate with a McConnell (R-KY) amendment striking the House language and adding Senate DHS appropriations language. The Senate then agreed to a McConnell motion to insist on its amendment and request a conference with the House, and the chair appointed conferees: Shelby (R-AL), Capito (R-WV), Hoeven (R-ND), Blunt (R-MO), Leahy (D-VT), Durbin (D-IL) and Tester (D-MT).

The House of Representatives is expected to reconvene shortly to consider a unanimous consent request to take up both measures and then, if no one asks for a recorded vote, the House of Representatives could voice vote the legislation later this evening in an almost completely empty chamber, sending H.J. Res. 28 to the President’s desk for signature late tonight and sending H.J. Res. 31 to a House-Senate conference committee to negotiate a final Homeland Security budget for fiscal 2019. POLITICO reported that federal workers could receive full back pay within 4 to 5 days.

(Of course, any individual House member could demand a roll call vote and then, pending that, point out that a quorum is not present, which would extend the shutdown for a day or two until at least 50 percent of the House members could fly back to DC, make a quorum, and pass the bill via roll call.)

McConnell seemed to indicate that finalizing full year appropriations under the unfinished Agriculture, Commerce-Justice-Science, Interior/Environment, State/Foreign Operations, and Transportation-HUD bills will be put on hold until negotiations finish on the Homeland Security bill:

“I was glad to see today the president’s announcement that he and Democrats have reached an agreement that will immediately re-open the government, while providing the room to negotiate a funding bill for the Department of Homeland Security. Further, negotiations on DHS will be prioritized over consideration of any other funding bills. And with cooperation, we can pass legislation opening the government and send the DHS appropriations bill to a conference with the House today.”

–Mitch McConnell, January 25, 2019

The fact that H.J. Res. 28, as amended by the Senate, is a “clean” CR is good news for most of the Department of Transportation but is bad news for highways. During the shutdown, in the absence of any valid appropriations law, the Federal Highway Administration on January 8 gave out a full-year obligation limitation for the federal-aid highways program of $45.3 billion, and of that amount, $36.6 billion was given to state DOTs and the District of Columbia via formula. If a clean CR to February 15 is enacted, then legally, FHWA is supposed to withdraw that full-year obligation limitation and replace it with an obligation limitation that is 37.81 percent of the fiscal 2018 appropriated ob limit of $44.2 billion (Oct. 1 to Feb. 15 is 138 days, which is 37.81 percent of 365 days). In effect, the obligation limitation would drop from $45.3 billion to $16.7 billion.

FHWA may try to slow-walk the implementation of the reduced obligation limitation, but there is a chance that another CR covering Transportation-HUD might have to be enacted in mid-February if the Homeland talks prove fruitless, and at some point FHWA has to obey the text of the appropriations law.

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