[Congressional Record Volume 143, Number 63 (Wednesday, May 14, 1997)]
[House]
[Pages H2654-H2655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DISASTER INSURANCE
The SPEAKER pro tempore. Under a previous order of the House, the
gentleman from Florida [Mr. McCollum] is recognized for 5 minutes.
Mr. McCOLLUM. Mr. Speaker, I take this time today to talk about a
couple of issues. The first one is disaster insurance and the problems
that most of the States that I am familiar with, Florida, California,
have with the fact that today we cannot get reinsurance in terms of
casualty and property insurance for those kinds of disasters and
catastrophic events that occur in our States.
Many of the States along the coast particularly of this country,
whether that be the Gulf of Mexico or the Atlantic Ocean, have
tremendous exposure to hurricanes. Hurricanes can do tremendous damage.
In Florida a couple of years ago we had a hurricane known as Andrew.
Andrew caused $16 billion worth of damage by going through a section
south of Miami known as Cutler Ridge. If that hurricane had gone
through Fort Lauderdale, we are told by experts that that hurricane
would have caused $40 or $50 billion worth of damage. If it had gone
through Miami downtown, Lord knows how much it would have cost, but it
would have been a lot.
In California within a couple of weeks of Hurricane Andrew they had a
relatively mild earthquake but serious enough to cause about $12
billion worth of damage. We are likely to see hurricanes and
earthquakes, particularly big earthquakes, in California that will be
staggering in total losses in terms of the entire damage done in the
next few years in these cataclysmic events that occur, hopefully, only
once in a lifetime or once in a century. But when they occur they do
enormous damage.
There is a need because the insurance capabilities of private
insurance and the States are not capable of dealing with it. There is a
need to have Federal involvement. That is why I introduced legislation
known as H.R. 230, which would address this problem by providing a
national form of reinsurance for those who provide the kind of
catastrophic coverage and property and casualty coverage in hurricanes
and earthquakes and other natural disaster situations.
The way this legislation would work would be that first of all there
would have to be a $10 billion or greater total loss in the natural
disaster to trigger the involvement of the Federal interest. Then, when
that occurred, there would be a trust fund set up in the Treasury
Department, and that trust fund would be created by the sale of
reinsurance contracts to insurance companies who do this kind of
business at an auction, an auction set by a commission which would be
developed under this legislation.
Mr. Speaker, that auction would result in premiums for the contracts
being paid yearly by the insurance companies into this trust fund.
Then, when we had a disaster of $10 billion or greater all together,
for the next $25 billion in losses up to a $35 billion disaster, the
trust fund moneys would come into play and the Treasury would pay out
of the trust funds on a pro rata basis to the insurance carriers the
reinsurance proceeds.
This would enable a more orderly process to take place in States and
in localities where these catastrophic events take place, and would
eventually allow, I believe, for there to be a lowering of the
insurance premiums that are now going through the roof for homeowners
and business owners in these affected States. I think that it is very
important that our colleagues take a look at this legislation. I would
invite cosponsorship of it.
I would hope that we could move a bill of this nature or something
similar to it through this Congress this session. The gentleman from
New York [Mr. Lazio], chairman of the Housing Subcommittee, has been on
the floor a lot the last few days as this bill and a similar product
that he has introduced and cosponsored, as he has cosponsored mine in
his committee. We are looking forward to the kind of support that will
allow us to proceed to get this type of law enacted.
I might say that every State is affected by this because, if we get a
pool of insurance moneys for reinsurance like this in the Treasury that
is accumulated by premiums being paid by insurers, it is going to save
the taxpayer money in the event of major losses.
We are talking about a supplemental appropriation now for disasters
in flood prone areas and so forth. We are always going to have Federal
money being spent when you have a major disaster.
If we can have an insurance pool like this that is stimulated to fill
a void in the market since there is no private reinsurance to speak of
for this purpose now and could lower insurance premiums for individual
homeowners and businesses at the same time, we will have done two
things: One, we will have helped people get insurance and afford
insurance in States where catastrophic incidents and disasters occur.
We will also have protected the taxpayers from losses that will occur
when disasters occur and somebody comes knocking on our door for
assistance.
Last but not least, in the few remaining moments I have, I would like
to point out that in the Subcommittee on Courts and Intellectual
Property, where I serve, a hearing is going on now dealing with the
subject of judicial activism. That is a somewhat controversial topic,
but a few weeks ago there was a publication, an article in Human
Events, which is a known periodical, on the subject of the
constitutionality of impeaching judges for going too far, for not
performing in good behavior, a very scholarly work.
I do not know what that line should be. I will include for the Record
the article from Human Events that I am referring to to be
incorporated:
[From Human Events, Apr. 11, 1997]
Congress Should Throw the Bums Out
(By Robert J. D'Agostino and George S. Swan)
House Majority Whip Tom DeLay (R.-Tex.) recently gave voice
to what many conservatives all across America have been
thinking for years: Judges who flout the Constitution should
be impeached, through the means provided in the Constitution
itself, by a majority vote in the House followed by a two-
thirds vote in the Senate. ``As part of our conservative
efforts against judicial activism,'' DeLay said, ``we are
going after judges.''
But Senate Majority Leader Trent Lott (R.-Miss.) poured
cold water on the fire DeLay had lit when he told the
Washington Times that he would not consider impeaching a
judge who had not committed a crime. ``Not me,'' said Lott.
But it is DeLay, not Lott, who understands what the Framers
intended to be the true constitutional role of Congress in
curbing abuses of power by federal judges.
The impeachment of federal judges is a matter of
congressional will. Article III, section one, of the
Constitution provides that federal judges, including the
Justices of the Supreme Court, ``shall hold their Offices
during good behavior.'' This is in addition to the right of
Congress to remove ``all civil officers'' for ``treason,
bribery, or other high crimes and misdemeanors.''
[[Page H2655]]
The phrase ``good behavior'' commonly is associated with
the English Act of Settlement of 1701. That act granted
judges tenure for as long as they properly comported
themselves. The historical basis and the current perceptions
of this language (good behavior) alike signal that the
standard applying to federal judges ``is higher than that
constitutionally demanded of other civil officers,''
according to Harvard Law School Professor Laurence H. Tribe
in this treatise ``American Constitutional Law.''
Justice Joseph Story, who served on the Supreme Court from
1811 to 1845, was of a similar view and expressed concern
about judges yielding ``to the passions, and politics, and
prejudices of the day.'' It may be inferred that good
behavior means fidelity to the Constitution, although Prof.
Tribe might have a noninterpretive definition of fidelity.
As U.S. House of Representatives Minority Leader Gerald R.
Ford (R.-Mich.) told the House on April 15, 1970, regarding a
bid to impeach Supreme Court Justice William O. Douglas:
``What, then, is an impeachable offense? The only honest
answer is that an impeachable offense is whatever a majority
of the House of Representatives considers it to be at a given
moment in history; conviction results from whatever offense
or offenses two-thirds of the other body considers to be
sufficiently serious to require removal of the accused from
office. Again, the historical context and political climate
are important; there are few fixed principles among the
handful of precedents.''
An energetic Congress can make sufficient time to impeach
errant federal judges. In 1989 the House impeached and the
Senate removed both U.S. District Judges Alcee L. Hastings
and Walter Nixon.
In a decision resulting from a procedural challenge by
Walter Nixon to his impeachment, the Supreme Court stated,
``A controversy is non-justiciable--i.e., involves a
political question--where there is a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable
and manageable standards for resolving it.'' (Nixon v. United
States, 1135 Ct 732 [1993]) In other words, there is no
judicial review of the impeachment process.
Impeachment is, in fact, the Court said, ``the only
[effective] check on the Judicial Branch by the
Legislature.'' To suggest as some have that a legislative
check on the judiciary (for other than criminal acts) would
eviscerate the principal of separation of powers is absurd.
The presidential veto allows the executive to check the
legislative branch; the two-thirds override and the power of
the purse allow the legislative to check the executive; and
the Article III jurisdictional control of federal courts by
the legislative and the legislative impeachment powers allow
a check on the judiciary.
Founding Father Alexander Hamilton in ``Federalist Paper
No. 81'' envisions Congress' impeachment power as a check on
legislating from the bench. While discussing the reasons for
considering the judicial the weakest of the three branches of
government, he wrote: ``And this inference is greatly
fortified by the consideration of the important
constitutional check which the power of instituting
impeachments in one part of the legislative body [the House],
and of determining upon them in the other [the Senate], would
give to that body upon the members of the judicial
department. This is alone a complete security. There can
never be danger that the judges, by a series of deliberate
usurpations on the authority of the legislature, would hazard
the united resentment of the body intrusted with it, while
this body was possessed of the means of punishing their
presumption by degrading them from their stations. While this
ought to remove all apprehensions on the subject, it affords,
at the same time, a cogent argument for constituting the
Senate a court for the trial of impeachments.''
Of course, Hamilton was wrong when he said that judges
would never usurp the powers of the legislature. Perhaps this
is because Congress has refused the employ that check on the
judiciary which he explicitly considered it to possess.
What then is good behavior? It is what Congress decides.
There is no textual limitation in the Constitution, and thus
its meaning must be left to the branch of government, the
Congress, charged with the responsibility to apply it.
Certainly, disregard of the plan meaning of the Constitution
and the usurpation of the legislative authority are examples
of misbehavior. Prof. John Baker of Louisiana State
University Law Center suggests that a usable guide for
deciding whether a judge has violated standards of good
behavior is ``if on matters pertaining to the Constitution he
or she has regularly rendered decisions which can be
reasonably characterized as based on `force' or `will' rather
than merely judgment. A judge exercises `force' or `will'
rather than judgment on an issue . . . if his or her decision
is not reasonably based on the explicit text of the
Constitution, one of the Amendments or evidence of the intent
of the Framers and ratifying bodies of the pertinent part of
the Constitution or Amendment.''
In other words, Prof. Baker suggests that if a judge
behaves arbitrarily and capriciously, that is, without the
constraint of law, he ought to be impeached. We concur.
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