March 2014: Four Issues to Watch in 2014

Washington Watch | March 2014
By Bruce Moyer

Presidential mid-term election years like the current one—when all seats in the House of Representatives and one-third of seats in the Senate are up for grabs—usually prompt Washington lawmakers to posture more and legislate less. For the current Congress, one already marked by gridlock and underachievement, expectations for high performance could hardly be lower. Nonetheless, there are several substantive areas of federal law, ones intertwined with the authority of the federal courts, that could see change as a result of Congressional action in the year ahead.

Patent Litigation Reform. Both chambers of Congress appear committed to passing legislation that cracks down on frivolous patent infringement lawsuits by making changes to the civil litigation system. The lawsuits are being brought by patent trolls, or entities that obtain patents for the express purpose of filing infringement lawsuits against companies and consumers. Late last year, the House of Representatives passed a patent reform measure (The Innovation Act, H.R. 3309) by a wide margin, and the Senate is expected to take up its own version soon. The White House supports elements of both the House-passed plan and the pending Senate bill, making patent litigation overhaul one of the few areas of possible bipartisan compromise in Congress in 2014.

Immigration Reform. This area will be more difficult. Last year, the Senate passed a comprehensive immigration bill (S. 744) thatwould do many things. Foremost, it would set in motion a process to grant citizenship to undocumented immigrants. House Republicans dismissed the sweeping Senate bill and promised to move their own incremental measures. However, none of the five immigration bills approved by House committees made it to the floor in 2013. GOP leaders say they hope to address the issue this year. The Senate bill would provide additional resources to the backlogged 59 immigration courts in the Justice Department, which hear deportation and other appeals. The immigration courts are falling behind due to the record pace of deportations initiated by the government. The Senate-passed bill and a similar bill introduced by House Democrats would authorize 225 more immigration judges over three years, as well as additional staff—one law clerk per judge, rather than the current three-to-one judge-clerk ratio. Whether Congress goes further and reorganizes the immigration court system is a possibility. The FBA supports the establishment of an Article I immigration court through the consolidation of the Justice Department’s immigration courts. The immigration court system would work in ways similar to the bankruptcy courts.

Criminal Sentence Reform. Growing concerns over the rising costs of federal prisons and the fairness of mandatory minimum sentences have prompted bipartisan proposals to change federal sentencing laws over drug-related crimes. In January, the Senate Judiciary Committee approved legislation (The Smarter Sentencing Act, S. 1410) that would reduce mandatory sentence penalties and give federal judges greater discretion at sentencing to depart below mandatory minimums. The changes are aimed at reducing the size of the overcrowded federal prison population (now at 220,000 inmates) by both reducing the number of people entering the prison system and sentence length (so-called “front-end” measures) and releasing inmates at an earlier point, including release to community corrections programs (“back-end” measures). The FBA, in its 2014 Issues Agenda, supports “efforts to advance fairness and consistency in federal sentencing, while preserving judicial independence and discretion to deal with the particular circumstances of individual cases.”

National Security Reform.
The most powerful court that most Americans have never heard of, the Foreign Intelligence Surveillance Court, or FISA Court, could undergo changes in its structure and operations as a result of Congressional changes to the national security apparatus. Congressional critics have taken aim at the 11-judge FISA Court’s current procedures for authorizing government surveillance in the United States in a relatively nonadversarial secret process. Those processes permitted the National Security Agency’s collection of bulk telephone data from the phone records of millions of Americans to attempt to identify suspected terrorists and spies operating in the United States, as revealed by Edward Snowden.

Congressional critics and the President advocate a more adversarial process within the FISA Court involving a “special advocate” who would appear before the court, especially when government surveillance applications raise novel issues of law. The federal judiciary has reacted negatively to the proposal. Judge John Bates, both as director of the Administrative Office of the U.S. Courts and as a former presiding judge of the FISA Court, has called a special advocate unnecessary and counterproductive in the vast majority of FISA matters, which typically involve the application of a probable cause standard to case-specific facts and implicate the privacy interests of few persons other than the specified target. The statutory authority under which the NSA collected the bulk telephony data expires in June 2015, so the debate over changes could continue into next year and the next Congress.

Bruce Moyer is government relations counsel for the FBA. © 2014 Bruce Moyer. All rights reserved.


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