Federal Aid for Reconstruction of Houses of Worship: A Legal Analysis

Cynthia Brougher
Legislative Attorney

In late October 2012, Hurricane Sandy struck the East Coast of the United States, causing severe damage to the mid-Atlantic and northeast regions of the country. The resulting destruction led to major disaster declarations in 12 states and the District of Columbia, making those states eligible for certain federal supplemental assistance to aid in the recovery process. The damage resulting from Hurricane Sandy devastated a wide range of communities, and many individuals and organizations have sought federal assistance for recovery, including churches, which has raised constitutional concerns regarding the provision of federal assistance to religious organizations.

The First Amendment of the U.S. Constitution generally prohibits the government from sponsoring or financing religious activities. The U.S. Supreme Court has interpreted the restrictions on federal aid provided to religious institutions in a number of contexts. In the context of providing aid to fund the construction or maintenance of religious buildings, the Court has permitted such aid if the building is not used for worship or religious instruction in a series of cases in the early 1970s. Over time, however, the focus of the Court’s analysis in Establishment Clause cases involving public aid to religious institutions has shifted. More recent cases arguably suggest that neutrality in the eligibility of participants competing for public funds may be paramount. At least one federal court of appeals and the U.S. Department of Justice’s Office of Legal Counsel have relied on this shift to support conclusions that funding may be permitted to provide assistance to religious facilities in some scenarios, such as urban development, emergency and disaster assistance, and historic preservation.

This report examines the constitutional rules governing federal funding for religious buildings and analyzes the Court’s previous decisions on this issue. It also analyzes more recent lower court and administrative opinions that have distinguished the Court’s decisions and allowed public funds to be awarded to houses of worship. Finally, the report discusses examples in which Congress has proposed or provided funding related to the construction and maintenance of religious buildings, including H.R. 592, which would authorize FEMA to provide disaster recovery assistance to houses of worship and other buildings operated by religious organizations.


Date of Report: February 27, 2013
Number of Pages: 16
Order Number: R42974
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Sequestration as a Budget Enforcement Process: Frequently Asked Questions

Megan S. Lynch
Analyst on Congress and the Legislative Process

This report provides basic information on sequesters generally, particularly those sequesters associated with the Budget Control Act of 2011. This report assumes a basic familiarity with the congressional budget process. For more information on the congressional budget process, see CRS Report 98-721, Introduction to the Federal Budget Process, coordinated by Bill Heniff Jr.

This report focuses on general processes associated with sequesters. Readers with questions about how a potential future sequester might affect a specific program or agency, or how an actual sequester is affecting a specific program or agency, should contact CRS subject matter experts by calling 7-5700 or visiting http://www.crs.gov.


Date of Report: February 27, 2013
Number of Pages: 10
Order Number: R42972
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Insourcing Functions Performed by Federal Contractors: Legal Issues

Kate M. Manuel
Legislative Attorney

Jack Maskell
Legislative Attorney

Recent Congresses and the Obama Administration have taken numerous actions to promote “insourcing,” or the use of government personnel to perform functions that contractors have performed on behalf of federal agencies. Among other things, the 109th through the 111th Congresses enacted statutes requiring the development of policies and guidelines to ensure that agencies “consider” using government employees to perform functions previously performed by contractors, as well as any new functions. The Obama Administration has similarly promoted insourcing, with officials calling for consideration of insourcing in various workforce management initiatives.

Certain insourcing initiatives of the Department of Defense (DOD), in particular, prompted legal challenges alleging that DOD failed to comply with applicable guidelines when insourcing specific functions. The only court to reach the issue assumed, without deciding, that certain guidelines were legally binding. However, other courts have not addressed this issue because of questions about jurisdiction and standing. The parties initially conceded that such suits were cognizable under the Administrative Procedure Act (APA), which permits challenges to agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” although the government has recently asserted that insourcing determinations are committed to agency discretion by law and, thus, not reviewable by the courts.

At first, there was some uncertainty as to whether the U.S. Court of Federal Claims had jurisdiction over such suits under the Administrative Disputes Resolution Act of 1996, or whether the federal district courts had jurisdiction under the APA. However, most courts to address the issue have found that the Court of Federal Claims has exclusive jurisdiction over challenges to insourcing determinations because such determinations are made in connection with “proposed procurements” and at least some contractors are “interested parties.” Later, questions arose about whether contractors who meet the statutory standing requirements (i.e., are “interested parties”) must also meet prudential standing requirements. These judicially self-imposed limits on the exercise of jurisdiction ensure that plaintiffs are within the “zone of interests” to be protected by the statutes they seek to enforce. Initially, judges on the Court of Federal Claims reached differing conclusions as to whether prudential standing requirements applied, although later decisions may suggest that any prudential standing requirements that apply could potentially be easily met. Most recently, the court has had to determine whether vendors whose contracts have expired have standing to challenge insourcing determinations, or whether such challenges are moot.

Other provisions of law could also potentially constrain whether and how agencies may proceed with insourcing in specific circumstances, or limit the activities that former contractor employees may perform after being hired by the federal government. These include (1) contract law, under which agencies could be found to have constructively terminated certain requirements contracts by augmenting their in-house capacity to perform services provided for in the contract; (2) civil service law, which would generally limit “direct hires” of contractor employees; and (3) ethics law, which could limit the involvement of former contractor employees in certain agency actions.

Members of the 112th Congress enacted legislation (P.L. 112-239) that calls for the Office of Management and Budget to establish “procedures and methodologies” for use by agencies in deciding whether to insource functions performed by small businesses, including procedures for identifying which contracts are considered for conversion and for comparing the costs of performance by contractor personnel with the costs of performance by government personnel.


Date of Report: February 22, 2013
Number of Pages: 26
Order Number: R41810
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Same-Sex Marriage and the Supreme Court: United States v. Windsor and Hollingsworth v. Perry

Jody Feder
Legislative Attorney

Alissa M. Dolan
Legislative Attorney

Recently, the Supreme Court agreed to weigh in on an issue that has long been a subject of controversy in the United States, namely, what types of restrictions, if any, may the government place on the ability of gay couples to enter legal marriages. The origin of the debate over samesex marriage can be traced back to 1993, when the Hawaii Supreme Court issued a ruling that appeared likely to lead to recognition of same-sex marriage under the state’s constitution. In response, Congress enacted the Defense of Marriage Act (DOMA). Section 3 of DOMA created a new federal definition for the terms “marriage” and “spouse” that includes heterosexual couples only. Thus, any federal law that uses those terms automatically excludes same-sex couples from any rights, benefits, or protections that flow from the statute.

Meanwhile, in the nearly two decades since DOMA was enacted, the state legislatures and courts have become increasingly enmeshed in questions about the extent to which marital rights and benefits can or must be offered to same-sex couples. Currently, nine states and the District of Columbia permit same-sex couples to marry, while the vast majority of the remaining states have statutes or constitutional provisions that bar such marriages. (For a detailed discussion of these state laws, see CRS Report RL31994, Same-Sex Marriages: Legal Issues, by Alison M. Smith.) One such provision is California’s Proposition 8, which amended the state constitution to prohibit same-sex marriage. Proposition 8 was adopted shortly after the California Supreme Court ruled that the state’s ban on same-sex marriage violated the state constitution.

On December 7, 2012, the Supreme Court agreed to hear challenges to two laws that impose restrictions on same-sex marriage. The first case, United States v. Windsor, involves questions about the constitutionality of DOMA. The second case, Hollingsworth v. Perry, involves a similar challenge to California’s Proposition 8. These cases are discussed in detail below.


Date of Report: February 20, 2013
Number of Pages: 16
Order Number: R42976
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The American Community Survey: Development, Implementation, and Issues for Congress

Jennifer D. Williams
Specialist in American National Government

The American Community Survey (ACS), implemented nationwide in 2005 and 2006, is the U.S. Bureau of the Census’s (Census Bureau’s) replacement for the decennial census long form, which, from 1940 to 2000, gathered detailed socioeconomic and housing data from a representative population sample in conjunction with the once-a-decade count of all U.S. residents. Unlike the long form, with its approximately 17% sample of U.S. housing units in 2000, the ACS is a “rolling sample” or “continuous measurement” survey of about 295,000 housing units a month, totaling about 3.54 million a year (an increase from the 2005 to 2011 sample size of about 250,000 housing units monthly, totaling about 3 million annually). The data are aggregated to produce one-year, three-year, and five-year estimates. As were the long-form data, ACS estimates are used in program formulas that determine the annual allocation of certain federal funds, currently more than $450 billion, to states and localities.

The ACS has several other features in common with the long form: the topics covered are largely the same; responses are mandatory; and the Bureau may follow up, by telephone or in-person visits, with households that do not submit completed questionnaires. The ACS is conducted under the authority of Title 13, Sections 141 and 193, of the United States Code; so was the long form. Title 44, Section 3501, of the Code, the Paperwork Reduction Act of 1995, and its implementing regulations require federal agencies to obtain Office of Management and Budget approval before collecting information from the public. On the long form, the Bureau could gather only data that were mandatory for particular programs, required by federal law or regulations, or needed for the Bureau’s operations. Likewise, the ACS can collect only necessary information.

The limited ACS sample size makes longer cumulations of data necessary to generate reliable estimates for less populous areas. Yearly averages have been available since 2006, but only for geographic areas with 65,000 or more people. The first three-year period estimates were released in 2008 for areas with at least 20,000 people. The first five-year averages became available in 2010 for areas from the most populous to those with fewer than 20,000 people. A concern noted by some data users is that the ACS sample size results in less-detailed five-year data products for smaller geographic areas—census tracts and block groups—than were available every 10 years from the long form. A related issue is data quality, especially for small areas.

An ongoing concern for some Members of Congress and their constituents is that responses to the ACS are required. The Bureau’s 2003 test of a voluntary versus mandatory ACS showed a 20.7- percentage-point drop in the overall ACS response rate when answers were optional. The Bureau estimated in 2003 and 2004 that if the survey became voluntary, maintaining data reliability would necessitate increasing the planned annual sample size from about 3 million to 3.7 million housing units, at an additional cost of $59.2 million per year in FY2005 dollars (re-estimated at $66.5 million per year, as of FY2011). In the 112th Congress, H.R. 931 and S. 3079 proposed making almost all ACS responses optional. The Poe amendment to H.R. 5326, the House-passed Commerce, Justice, Science, and Related Agencies Appropriations Act, 2013 (CJS), would have prohibited the use of funds to enforce a penalty for not answering the ACS. The Webster amendment to H.R. 5326 would have prohibited the use of funds to conduct the survey. The Senate did not take up H.R. 5326 or S. 2323, its FY2013 CJS appropriations bill, which had no provisions similar to the Poe and Webster amendments. P.L. 112-175, the Continuing Appropriations Resolution, 2013, was enacted on September 28, 2012, without mention of the ACS. It funds the Census Bureau at 0.612% above the FY2012 appropriations level until March 27, 2013, unless FY2013 CJS appropriations legislation is enacted before then.


Date of Report: February 20, 2013
Number of Pages: 26
Order Number: R41532
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