21st Annual Analysis of the National Defense Authorization Act for FY 2022

[bob7947]

This year, I started doing this annual analysis around Christmas.   Here is a short recap of what happened with the NDAA.

1. The House passed H. R. 4350 on 9/23/2021 - the House version of the NDAA.
2. The Senate Armed Services Committee introduced S. 2792 on 9/22/2021 in the Senate with a written report.  However, the Senate never passed S. 2792.
3. The Senate considered H. R. 4350 from 11/19/2021 unti December 2, 2022 without any further action.
4. Members of the Senate and House Armed Services Committee worked together on their own to come up with an NDAA for FY 2022.
5. S. 1605 was adrift in the Senate and amended with the "agreed to" NDAA for FY 2022.  It quickly passed both the House and the Senate.
6. A "Joint Explanatory Statement to Accompany the National Defense Authorization Act for Fiscal Year 2022" was written and S. 1605 states that it has the same force as a "Conference Report."  In the 21 years I've been doing this it is only the second time that happened.

That's the official story.  This is what I think happened--and probably did--after # 3 above.  Members of the Senate Armed Services Committee realized that they were unable to amend H. R. 4350, hold a conference with the House to discuss differences between H. R. 4350 and a Senate bill, and pass a conference report in both houses in a couple of weeks. 

The Senate did collect 945 amendments and dropped them into another amendment called S. Amdt. 3867.  S. Amdt 3867 is an unworkable mess.  The Senate tried to close the Senator's ability to add amendments on December 2, 2022 --something called cloture--but couldn't get cloture passed in the Senate.  They had no bill in the Senate because S. 2792 never passed the Senate, there were already 945 amendments to H. R. 4350, they could'nt end the amendment process and they wanted to get home for the holidays.

That is when members of the Armed Services Committees went off the grid and used H. R. 4350 and S.2792 as their starting point and picked and chose amendments they could agree to and added them to the 2 bills.  When this was going on some staff were preparing the Joint Explanatory Statement I mentioned above.  It is on the House Armed Services web site.  At that time, S. 1605 was picked and amended with the "agreement" struck by the members who were off grid.  It was agreed by procedure that S. 1605 would pass the House and Senate quickly and it did in time for the holidays.  I think that was about December 15, 2021.  Since there were things being done concurrently, the Joint Explanatory Agreement appears to have errors by stating that S. Amdt 3867 is the referred to as the Senate "amendment" for legislative history purposes.  However, in reality, the S. Rpt. that accompanied S. 2792 was used together with the report that accompanied H. R. 4350 to explain the legislative history.  When you look at the individual sections of P. L. 117 - 81 in the left coumn and the legislative history in the right column you will see that S. 2792 and its report is referred to as the Senate Amendment--not S. Amdt 3867.

In the end S. 1605--however it was decided to use it as the vehicle for the NDAA--passed the Senate and the House and was signed at the White House to becaome P. L. 117 - 81, the NDAA for FY 2022 .

I thought about what part of the legislate history I would use if I argued a point.  Since S. 2792 and its report never passed the Senate, I wouldn't use that.  I would stick to what is referred to as the "agreement" and stop there. 

National Defense Authorization Act for Fiscal Year 2022.  

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Thank you, as always