Boozman, Cramer, Capito and colleagues file bicameral amicus brief to overturn FHWA’s unlawful rmissions rule

WASHINGTON – U.S. Senators John Boozman (R-AR), Kevin Cramer (R-ND) and Committee on Environment and Public Works Ranking Member Shelley Moore Capito (R-WV) led 27 of their colleagues in filing a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit opposing a final rule from the Federal Highway Administration (FHWA) that requires state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets for those GHG emissions. The brief requests that the Court uphold the April 2024, U.S. District Court decision finding that Congress did not grant the FHWA the authority to issue the rule.

The brief argues Congress explicitly debated providing the FHWA the necessary authority to issue this rule, but decided against doing so in the Infrastructure Investment and Jobs Act. The FHWA then intentionally misconstrued congressional intent and used unrelated statutory authorities to attempt to justify issuing its GHG performance measure rule. The lawmakers also contend the rulemaking is inconsistent with recent Supreme Court decisions paring back executive branch overreach, and that FHWA is ignoring principles of federalism at the expense of state governments to further its own policy agenda.

“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” the members argued. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.” 

“Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized. And it did so both at the expense of separation of powers and in violation of the Administrative Procedure Act,” the members continued. 

Senate Republican Leader Mitch McConnell (R-KY) and Senators John Barrasso (R-WY), Mike Braun (R-IN), Katie Britt (R-AL), Ted Cruz (R-TX), Mike Crapo (R-ID), Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall, M.D. (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds (R-SD), Marco Rubio (R-FL), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Tommy Tuberville (R-AL) and Roger Wicker (R-MS) – as well as U.S. Representatives Sam Graves (R-MO-06), Chairman of the Transportation and Infrastructure Committee, and Rick Crawford (R-AR-01), Chairman of the Highways and Transit Subcommittee – also cosigned the brief. 

Full text of the amicus brief is available here.

Background:

Shortly after the rule was finalized, 21 state attorneys general, including Arkansas, filed litigation challenging the regulation. The U.S. District Court found the Biden administration rule to be illegal, but FHWA appealed the decision to the Sixth Circuit Court of Appeals and it remains under further consideration. 

In April of this year, the U.S. Senate approved a Congressional Review Act (CRA) joint resolution of disapproval overturning the rule by a vote of 53-47. The bipartisan measure was led by Cramer and cosponsored by Boozman, Ranking Member Capito and dozens of their colleagues.

WTAS: Support Builds for Boozman-Welch Legislation to Protect Seniors’ Access to Healthcare

U.S. Senator John Boozman, AR

WASHINGTON –– U.S. Senators John Boozman (R-AR) and Peter Welch (D-VT) announced support from national health organizations for the Physician Fee Stabilization Act, legislation that ensures greater flexibility in determining pricing adjustments for medical services without triggering harmful annual payment cuts to Medicare-serving physicians.

The legislation is also cosponsored by Senators Thom Tillis (R-NC), Angus King (I-ME), Roger Marshall, M.D. (R-KS) and Jeanne Shaheen (D-NH). 

What They Are Saying

“Physicians cannot continue to be faced with large reductions in Medicare payment at the beginning of each year, threatening our practice operations and access to care for our nation’s seniors. The American College of Physicians supports the Physician Fee Stabilization Act that would help to ensure this doesn’t continue to happen by raising the threshold for the implementation of budget neutral payment cuts,” said Isaac O. Opole, MBChB, PHD, MACP, President, American College of Physicians.

“The Physician Fee Stabilization Act would provide a much-needed increase to the budget neutrality threshold, raising the trigger amount from $20 million, where it has been since 1992, to $53 million. It would then provide for inflationary increases every five years based on the Medicare Economic Index. As proposed, the $33 million increase is proportional to the growth of Part B spending since the implementation of the PFS,” said American College of Surgeons Executive Director and CEO Patricia L. Turner, MD, MBA, FACS. “This would be an important step forward to ensure greater flexibility in determining pricing adjustments for services without triggering re-occurring across-the-board cuts at the end of every year.”

“The Physician Fee Stabilization Act is a vital step toward ensuring stability and fairness in physician payment reform, especially for cardiologists who provide life-saving care. By raising the budget neutrality threshold, this legislation will help prevent annual cuts that threaten patients’ access to cardiovascular care. The American College of Cardiology commends Senators Boozman, Welch, Tillis, King, Marshall and Shaheen for their leadership and commitment to supporting our nation's cardiologists and their patients,” said American College of Cardiology President Cathleen Biga, MSN, FACC. 

“The Physician Fee Stabilization Act marks the Senate's first legislative solution this year to help ensure fair and consistent Medicare payments for physician services, and Congress should pass this bill to help ensure our nation’s seniors continue to have timely access to the physician of their choice. We applaud the bipartisan group of Senators leading this initiative and look forward to working with policymakers to advance additional long-lasting Medicare policy solutions,” said Russell R. Lonser, MD, FAANS, American Association of Neurological Surgeons and Congress of Neurological Surgeons.

“The American Academy of Dermatology Association sincerely thanks Senators Boozman and Welch for introducing the Physician Fee Stabilization Act, which would update the budget neutrality thresholds in the Medicare physician fee schedule,” said American Academy of Dermatology Association President Seemal R. Desai, MD, FAAD. “This bill is a crucial step in the fight to reform Medicare physician payment as it would revise budget neutrality policies that contribute to eroding reimbursement, which is not only a critical top priority for dermatologists, but for all physicians and most importantly the patients we serve.”

“The AAMC applauds Sens. Boozman and Welch for introducing the Physician Fee Stabilization Act. Physicians employed by teaching health systems and hospitals across the country are dedicated to both providing care to the most complex and vulnerable patients and training the next generation of physicians. These large, multispecialty practices are vital resources to their local communities, providing significant primary care and other critical services, including a large percentage of tertiary, quaternary, and specialty referral care in the community. However, their ability to continue to provide care in their communities is in jeopardy due to the threat of yearly cuts to their patient care payments,” said Danielle Turnipseed, JD, MHSA, MPP, Chief Public Policy Officer of the Association of American Medical Colleges. “The Physician Fee Stabilization Act would update the current budget neutrality threshold in the Medicare Physician Fee Schedule (PFS), and continue to update it every five years. While more is needed to ensure the stability and longevity of the PFS, this is a critical step, and we appreciate the bipartisan commitment of Sens. Boozman and Welch to addressing issues with the PFS and look forward to working to get this legislation passed.”

“The American Urological Association (AUA) applauds Senators John Boozman and Peter Welch, along with Senators Thom Tillis, Angus King, Roger Marshall, MD and Jeanne Shaheen, for their leadership in introducing S. 4935, the Physician Fee Stabilization Act,” said AUA Public Policy Council Chair Mark Edney, MD, MBA. “This bipartisan legislation takes the critical step of increasing the budget neutrality threshold from $20 to $53 million with adjustments every five years to keep pace with the MEI. The budget neutrality threshold has not been updated in more than 30 years and physicians are the only Medicare provider without inflationary payment updates. S. 4935 would fix this and bring much-needed stability to physician payment year after year, helping to ease the provision of urological care and countless other services to millions of Americans under Medicare.”

“The American Optometric Association (AOA) applauds Sens. Boozman and Welch, for the visionary direction S. 4935 sets for future growth of health care access,” said Steven Reed, O.D., AOA president. “For so many years, physicians of all types, including doctors of optometry, have long been impacted by stagnant Medicare reimbursement. The costs to deliver care continue to increase especially in regard to staffing and overhead costs, yet Medicare reimbursement has remained and proposed cuts only threaten to hamper physicians’ ability to provide valued care. S. 4935 takes a long-term forward-looking approach to a real solution – not a patch – to address this problem.”

Cotton, Colleagues introduce bill to repeal tax on certain firearm purchases

Washington, D.C. — Senator Tom Cotton (R-Arkansas) today introduced the Repealing Illegal Freedom and Liberty Excises (RIFLE) Act, legislation that would remove a burdensome tax imposed on firearms regulated under the National Firearms Act.

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Senators John Barrasso (R-Wyoming), Marsha Blackburn (R-Tennessee), John Cornyn (R-Texas), Kevin Cramer (R-North Dakota), Steve Daines (R-Montana), Deb Fischer (R-Nebraska), Cynthia Lummis (R-Wyoming), Roger Marshall (R-Kansas), Markwayne Mullin (R-Oklahoma), Pete Ricketts (R-Nebraska), Marco Rubio (R-Florida), and Rick Scott (R-Florida) are co-sponsors of the legislation. Congresswoman Ashley Hinson (Iowa-02) introduced companion legislation in the House.

“Law-abiding Americans who exercise their Second Amendment rights should not be subject to unnecessary taxes and restrictions preventing them from doing so. Passed into law in 1934, the National Firearms Act needs to be amended. Our legislation will remove the red tape that places an undue financial burden on would-be gun owners,” said Senator Cotton.

“The federal government should not be placing financial barriers on the inalienable rights of Americans. This unconstitutional tax on certain firearm purchases is a direct violation of the Second Amendment and must be repealed. As the Biden Administration and Democrats push proposals that unfairly target law-abiding gun owners, I will continue to stand up for Iowans’ right to keep and bear arms,” said Congresswoman Hinson.

Text of the legislation may be found here.

Background:

• The 1934 National Firearms Act (NFA) regulates short-barreled shotguns and rifles, fully automatic firearms, suppressors, and a catchall category of explosives. In addition to background checks and registration, NFA regulated items have a $200 tax.

• The ATF has acknowledged the tax was intended “to curtail, if not prohibit, transactions” of firearms. The $200 tax, unchanged since 1934, is equivalent to $4,648 in today’s dollars.

• Since 2018, ownership of NFA regulated items have grown by more than 250% as more sportsmen, shooters and firearm enthusiasts exercise their Second Amendment right.

• The RIFLE Act does not modify the current checks and registration; it solely removes the federally mandated financial burden on law-abiding gun owners.

• The legislation is endorsed by the National Rifle Association and the National Shooting Sports Foundation.