[Congressional Record Volume 163, Number 26 (Tuesday, February 14, 2017)]
[House]
[Pages H1145-H1151]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONSIDERATION OF H.R. 428, RED RIVER GRADIENT BOUNDARY
SURVEY ACT, AND PROVIDING FOR CONSIDERATION OF H.J. RES. 42,
DISAPPROVING RULE SUBMITTED BY DEPARTMENT OF LABOR RELATING TO DRUG
TESTING OF UNEMPLOYMENT COMPENSATION APPLICANTS
Mr. COLE. Mr. Speaker, by direction of the Committee on Rules, I call
up House Resolution 99 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 99
Resolved, That upon adoption of this resolution it shall be
in order to consider in the House the bill (H.R. 428) to
survey the gradient boundary along the Red River in the
States of Oklahoma and Texas, and for other purposes. All
points of order against consideration of the bill are waived.
The bill shall be considered as read. All points of order
against provisions in the bill are waived. The previous
question shall be considered as ordered on the bill and on
any amendment thereto to final passage without intervening
motion except: (1) one hour of debate equally divided and
controlled by the chair and ranking minority member of the
Committee on Natural Resources; and (2) one motion to
recommit.
Sec. 2 Upon adoption of this resolution it shall be in
order to consider in the House the joint resolution (H.J.
Res. 42) disapproving the rule submitted by the Department of
Labor relating to drug testing of unemployment compensation
applicants. All points of order against consideration of the
joint resolution are waived. The joint resolution shall be
considered as read. All points of order against provisions in
the joint resolution are waived. The previous question shall
be considered as ordered on the joint resolution and on any
amendment thereto to final passage without intervening motion
except: (1) one hour of debate equally divided and controlled
by the chair and ranking minority member of the Committee on
Ways and Means; and (2) one motion to recommit.
The SPEAKER pro tempore. The gentleman from Oklahoma is recognized
for 1 hour.
Mr. COLE. Mr. Speaker, for the purpose of debate only, I yield the
customary 30 minutes to the gentleman from Florida (Mr. Hastings),
pending which I yield myself such time as I may consume. During
consideration of this resolution, all time yielded is for the purpose
of debate only.
General Leave
Mr. COLE. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Oklahoma?
There was no objection.
Mr. COLE. Mr. Speaker, last week, the Rules Committee met and
reported a rule for consideration of two important measures. First, the
resolution provides for consideration of H.R. 428, the Red River
Gradient Boundary Survey Act. The rule provides for 1 hour of debate,
equally divided and controlled by the chair and ranking member of the
Natural Resources Committee, and provides for a motion to recommit.
In addition, the resolution provides for consideration of H.J. Res.
42, providing for congressional disapproval of a rule issued by the
Department of Labor with regard to drug testing. The rule provides 1
hour of debate, equally divided and controlled by the chair and ranking
member of the Ways and Means Committee, and provides for a motion to
recommit.
Mr. Speaker, H.R. 428 is a product of months of negotiation between
the States of Texas and Oklahoma and the Kiowa, Comanche, and Apache
Tribes in my district. I am happy to have been able to work with my
friend Mr. Thornberry to come up with a fair and equitable solution
which all interested parties have agreed to.
As you may know, the Red River serves as the State line separating
Oklahoma and Texas. Over time, the river has moved, as much as a mile
in some areas, causing landowners' properties to be affected. Instead
of working to resolve this, for nearly a century, the Bureau of Land
Management, BLM, has been unwilling to survey a small portion of the
Federal land along a 116-mile stretch of the Red River between Oklahoma
and Texas. H.R. 428 would direct the survey to be completed, using the
gradient boundary survey method that was mandated by the Supreme Court,
so that ownership of the land, which has been under dispute, can be
effectively resolved.
{time} 1315
In addition, Mr. Speaker, the rule provides for the consideration of
another Congressional Review Act resolution, which would overturn a
Department of Labor rule related to drug testing for those applying for
unemployment insurance.
In 2012, the Middle Class Tax Relief and Job Creation Act made a
number of reforms to the unemployment insurance program, including
overturning a 1960s-era Department of Labor ban on the screening or
testing of unemployment applicants for illegal drugs. The 2012
provision allowed, but did not require, States to test unemployment
insurance applicants who either, one, lost their jobs due to drug use
or, two, who were seeking new jobs that generally required new
employees to pass a drug test. Unfortunately, after 4 years and a now
finalized rule, States are no closer to being able to implement this
sensible policy. Instead, because of the Department of Labor's
overreach, three States which have enacted necessary State law changes
to implement this commonsense policy are actually now precluded from
moving forward with this sensible, bipartisan policy.
Mr. Speaker, most States already limit unemployment insurance
benefits or individuals who refuse to take or fail an employer drug
test or who have previous employment issues with drugs. We should
empower States, employers, and prospective employees who are looking
for work and overturn this onerous regulation.
Mr. Speaker, I urge support of the rule and the underlying
legislation.
I reserve the balance of my time.
Mr. HASTINGS. Mr. Speaker, I yield myself such time as I may consume.
I thank the gentleman from Oklahoma for yielding to me the customary
30 minutes for debate.
I rise to debate the rule for consideration, which bundles together
two completely unrelated pieces of legislation. One is a joint
resolution disapproving of a Department of Labor rule that relates to
the drug testing of unemployment compensation applicants. The other, as
the gentleman just described, is the Red River Gradient Boundary Survey
Act.
There are many more important issues, in my opinion, that face this
country at the moment, and for the life of me, I cannot figure out why
my colleagues across the aisle think that ceding Bureau of Land
Management survey authority over federally owned land to the States and
impugning the integrity of those who rightfully seek unemployment
insurance are on the same list of important matters this body should be
addressing.
First, I would note the odd events that brought us here today as we
operate, once again, under a closed rule. I just heard the debate on
the previous rule, and I was illuminated by the gentleman from Alabama,
on the other side, who indicated that the rule wasn't closed because we
had a debate in the Rules Committee yesterday for 1 hour. A closed rule
is a closed rule. It means that other Members of this body do not have
an opportunity to have their amendments heard and/or made in order. We
are now entering our 13th of these closed rules in a body that claimed
that it was going to have open rules and regular order.
On February 3, Congressman McClintock wrote to Chairman Sessions,
asking that the Red River Gradient Boundary Survey Act be heard under a
structured rule, which still isn't an open rule. An amendment deadline
was set, and two germane amendments with no budgetary issues were
submitted. Nevertheless, my Republican colleagues shut down the process
and reported a closed rule. As of today, two-thirds of all of the rules
issued this session by the Rules Committee have been closed rules. We
should not be conducting the people's business this way.
I call on my Republican colleagues to put their unfounded fear aside
and let this body operate under regular order, under open rules, or, at
the very least, under structured rules.
[[Page H1146]]
I am dismayed to see, even when the Republican chairman of a
subcommittee asks the Republican chairman of the Rules Committee for a
structured rule, that the Republican leadership sees fit to ignore that
request and continue this closed process--stifling ideas and debate
before they can even get started.
It is this kind of shifting decisionmaking that sows distrust and
disappointment in the American people when they survey how business is
conducted in their House. However, it is not just this kind of
duplicitous behavior that undermines this institution, but, as I
mentioned moments ago, a complete lack of an ability to get our
priorities straight.
We still have plenty of folks who are looking for jobs. We have
plenty of people who are terrified that they will soon lose the health
care that keeps them and their children living healthy and productive
lives. We have plenty of people who are understandably concerned that
our immigration policy has taken a deep dive into the shallow end. But
we don't come here to address these important issues. Instead, my
Republican colleagues bring to the floor, week after week, legislation
to undermine well-thought-out agency rules and make it increasingly
difficult for our agencies to carry out their duties.
The fact that we need to come here today and discuss the efficacy of
having the Bureau of Land Management manage our Nation's land is beyond
me. For nearly 100 years, the Bureau of Land Management has conducted
uncontested surveys, and now we are supposed to believe that, all of a
sudden, the agency is not following the appropriate standard. If folks
don't like the survey methods or think the wrong standard is being
used, then one needs to go through the court system. One does not
engage in the unprecedented measure of ceding to the States the Federal
Government's legitimate authority over Federal land.
The second completely unrelated resolution, H.J. Res. 42, overturns a
Department of Labor rule regarding the drug testing of Americans who
apply for unemployment compensation. Under the Middle Class Tax Relief
and Job Creation Act of 2012, States were given the authority to
conduct drug tests on unemployment insurance applicants under two
circumstances: if the applicant were terminated from a previous job due
to unlawful drug use or if the only available, suitable work were in an
occupation that regularly conducts drug testing.
The rule in question clarifies that occupations that ``regularly
conduct drug testing'' include occupations that are specifically
identified in State or Federal law as requiring an employee to be
tested. Put another way, if a State thinks a job warrants a drug test,
all it needs to do is add the job to a list. The rule strikes a
balance, preserving deference to States while providing commonsense
clarity to the law. This is how things should be done--that is, the
regulations that were in force until now, at least.
Unfortunately, Mr. Speaker, common sense is not put to much use
around here these days. Republicans want to repeal the rule because,
one would have to assume, it does not go far enough in embarrassing
those people who are simply trying to obtain unemployment insurance
during a difficult time. Let us be crystal clear in that the only
purpose this repeal can serve is to embarrass folks, because there is
no evidence linking those who seek unemployment insurance to increased
rates of drug abuse. Be that as it may, Republicans still insist on
expanding expensive and offensive drug screenings.
Today, once again, we see the Republicans engaging in the Trumpian
exercise of creating alternative facts. In today's example, we have a
resolution that is based on the blanket assumption that unemployed
Americans use drugs. It further implies that Americans who apply for
unemployment benefits are to blame for being unemployed. This
implication is as unfounded as it is offensive to those hardworking
Americans who find themselves unemployed due to no fault of their own.
And what do these hardworking Americans get for their troubles--a
Congress dedicated to ensuring that new and well-paid jobs are there
for them tomorrow?
Not at all. Instead, they get a Republican-led Congress that is bent
on subjecting them to unconstitutional, offensive, and expensive drug
tests.
Like it or not, facts still matter. Here is one: a conservative
estimate by the Substance Abuse and Mental Health Services
Administration puts the cost of drug testing at $25 to $75 per test.
Because Federal law prohibits charging applicants for these tests,
States would have to absorb the cost of testing thousands of unemployed
workers. In the State of Texas, for instance, that would translate to,
approximately, $30 million for a single year of testing. A while back,
we spent a lot of time around here talking about unfunded mandates, and
somehow or another, this one, I guess, doesn't fit in that category.
Mr. Speaker, arbitrarily testing Americans who apply for unemployment
compensation runs contrary to our Constitution and is a solution in
search of a problem. Being unemployed is not a sufficient reason to be
subjected to a government-operated drug test. Proposals like this blame
unemployed Americans for being unemployed. It is illegal and it is a
huge waste of money. We have got some real problems that we need to
address in this Congress. At some point, this Congress will need to get
to work.
Mr. Speaker, I reserve the balance of my time.
Mr. COLE. Mr. Speaker, I yield myself such time as I may consume.
Obviously, the gentleman and I have some disagreement here, but let's
talk for a minute about the form of what we are doing.
The gentleman is correct in that this rule covers two different
pieces of legislation that don't have anything substantive in common.
However, the legislation itself will be debated separately. We will
have one debate on the Oklahoma-Texas issue, which involves the
boundary between those two States and the tribal interests that are
also intimately part of that. We will have a separate debate on the
rule. That is the appropriate way to proceed. There is no reason to
have a separate rule for each one of these debates, but it is
appropriate, as the gentleman suggested, to have two different debates
because they are two different subjects.
I am going to disagree with him--and I am probably being parochial in
this sense--for, if you live in Oklahoma, we actually think the border
between Oklahoma and Texas is pretty important. This is an issue that,
frankly, was dealt with legislatively last year. This body did not vote
out the bill. I actually opposed it last year because it did not take
care of the tribal interests involved and they had not been suitably
dealt with. We amended the bill. Actually, I should say it was brought
up, but it was not taken up by the Senate. We changed it, but we kept
working for many months. Chairman Thornberry is the person who deserves
most of the credit here of trying to bring the parties together.
Also, just by way of explanation so everybody is clear, this does not
settle the issue. This doesn't force anything on the Federal Government
or the two States or the tribes. It simply creates a common database.
The two States have been asking for a complete survey of the contested
area for many years. The BLM has refused to do that. You simply can't
sort through this problem of a shifting border--set well over a century
ago--with conflicting tribal interests if you don't have a common set
of data here. So that is all that is being done here.
I can assure you that, certainly, the tribes in question would not
have consented to go forward if they had thought they were having a
solution imposed on them. What they think they are getting is a
database that will allow them to determine exactly what their interests
and rights here are and, hopefully, negotiate that with the two States
in question; but, if necessary, they will litigate the issue.
{time} 1330
So we see this as a reasonable effort to bring parties together where
there is a great deal of confusion through nobody's fault. And we think
the BLM has been lax here and, frankly, may well be claiming things
beyond its authority. But the survey, again, will hopefully take care
of that. So I hope that eases the concerns that people have.
[[Page H1147]]
In terms of the drug rule, we see this as an issue where Congress
made its intent in 2012 very clear, that is, we wanted States to have
options to make these decisions for themselves. We think the Department
of Labor rule made that more, rather than less, difficult.
We can argue over the merits of any individual treatment of people
that have used illegal drugs or what the appropriate testing measure is
or whatever. I happen to think those decisions are best made at the
State level where you have got interested parties that are more
knowledgeable about local conditions than us dictating a one size fits
all. So we just simply disagree on that.
Finally, the gentleman from Florida (Mr. Hastings) mentioned some
concerns about the speed with which we are acting and also the form
with which we are acting. The form, frankly, is basically dictated by
statute.
The Congressional Review Act dictates the manner in which we can
bring these items on rules to the floor, the timetable which we can
operate under. If we alter that over here, then, frankly, we lose
privilege status in the Senate and the chances of succeeding actually
diminish pretty greatly.
We think, in this case, the issues are pretty clear. These aren't
really things that need to be amended. We need to decide whether or not
the regulation is appropriate or not. If you think it is, you should
vote in favor of keeping the regulation as it is and against this
effort.
If, on the other hand, you would like to see decisionmaking devolve
down to the States and where we think better decisions will be made,
then, you should vote in favor of the rule and the underlying
legislation.
So, again, I don't think these issues are overly complex. I do think
this is an important time to deal with them. Again, we have a limited
period of time on the Congressional Review Act. We have a certain
format. We think we are abiding within both that timeframe and that
format.
On the Oklahoma-Texas border issue, it is a knotty issue. It has been
around for decades. There have been multiple efforts to deal with it.
Most of them have faltered because we have not had the various parties
arguing from a common database as to what their positions are. We have
asked the Bureau of Land Management repeatedly to survey the affected
area. They decided they didn't want to do that.
In this case, Congress says: Look, we have two sovereign States and
three sovereign Indian tribes here that have a concern. We want them to
be able to work it through. We want them to draw on a common set of
data. So we are going to essentially make sure that that happens and
hopefully we can avoid a protracted court case between the States and
the Indian tribes and actually resolve an issue that needs to be had.
There are literally thousands of people along this border that are
not certain whether or not they own the land that they have actually
been farming, in some cases, for generations. There are three Indian
tribes that have historic rights to this land that predate, frankly,
the existence of Texas as a State and certainly the existence of
Oklahoma as a State. They want to make sure their mineral rights issues
and their land issues are appropriately handled, and they want to
preserve their rights going forward if they want to litigate. Again,
they need this kind of data to make those sorts of determinations.
I commend the gentleman from Texas (Mr. Thornberry). I, again, look
forward to working with my good friend from Florida (Mr. Hastings) on
these issues.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS. Mr. Speaker, I yield myself such time as I may consume.
While we are discussing these matters that my colleagues want to
discuss that I don't think are paramount or issues that are vital to
America's security, there are a plethora of issues that we could be
discussing, and rightly should be. Toward that end, one of the things
that the minority is given as an opportunity is to offer a previous
question to the matter that is on the floor at this time.
So I exercise that prerogative by asserting that the National
Security Council was established in 1947 to encourage candid
discussions between the Federal agencies charged with keeping America
safe to ensure they would provide the President with the best policy
advice possible. For this very reason, security experts on both sides
of the aisle agree that partisan politics have no place in the
Council's deliberations.
With this in mind, it is deeply troubling that President Donald John
Trump would promote Steve Bannon, his chief political adviser, to a
full seat on the Council's Principals Committee, while simultaneously
relegating the chairman of the Joint Chiefs of Staff and the Director
of National Intelligence to a lower status. At the very least, this
sends the very dangerous signal that the Trump White House intends to
let political calculations influence its decisionmaking on the life-
and-death matters of national security.
Mr. Speaker, if we defeat the previous question, I am going to offer
an amendment to the rule to bring up Representative Stephanie Murphy's
bill to prohibit political advisers from regularly attending National
Security Council meetings.
Mr. Speaker, I ask unanimous consent to insert the text of my
amendment in the Record, along with extraneous material, immediately
prior to the vote on the previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. HASTINGS. Mr. Speaker, to discuss our proposal, I yield 4 minutes
to the distinguished gentlewoman from Florida (Mrs. Murphy).
Mrs. MURPHY of Florida. Mr. Speaker, 2 weeks ago, I introduced H.R.
804, legislation designed to ensure that the deliberations and
decisions of the National Security Council are not unreasonably
influenced by partisan politics. The bill has garnered nearly 130
cosponsors, including the ranking members of the House Armed Services,
Foreign Affairs, and Intelligence Committees. It is my hope that the
bill will obtain support from my colleagues across the aisle because
the principle it seeks to vindicate has long enjoyed bipartisan
backing.
The motivation for my legislation was President Trump's directive
formally authorizing his chief political adviser, Stephen Bannon, to
attend all meetings of the NSC and its main subgroup, the Principals
Committee. This aspect of the President's directive generated concern
from respected military and intelligence professionals across the
ideological spectrum.
For example, Senate Armed Services Committee Chairman John McCain
characterized Mr. Bannon's appointment as a radical departure from
precedent. Former White House Chief of Staff, Defense Secretary, and
CIA Director Leon Panetta observed that the last place you want to put
someone who worries about politics is in a room where they are talking
about national security. And the ex-chairman of the Joint Chiefs of
Staff, Michael Mullen, asserted that every President has the right and
responsibility to shape the National Security Council as he sees fit,
but partisan politics has no place at that table.
My bill would amend the 1947 law in which Congress created the NSC
and established the statutory members of the Council. It would add
simple language to provide that no individual whose primary or
predominant responsibility is political in nature shall regularly
attend or participate in meetings of the NSC or the Principals
Committee.
I want to emphasize that while I may disagree with President Trump
and Mr. Bannon on a range of matters, this bill is not about any
specific individual. The prohibition in my legislation would apply
whether the President or political adviser in question is Republican or
Democrat and irrespective of their particular party views or personal
attributes.
At its core, this bill is about fidelity to a deeply American
principle: the principle that the servicemembers in our all-volunteer
military, the quiet professionals in our intelligence community, and
the men and women who protect our homeland should never have their
lives disrupted or placed at risk because of a national security
policymaking process that is contaminated by partisan politics.
The President is free to obtain political and policy advice from
whomever
[[Page H1148]]
he wishes. However, he should not be free to place a political adviser
on the most vital national security policymaking body in our country.
Congress created the NSC, and Congress can and should set reasonable
parameters governing its membership.
I respectfully urge my colleagues to defeat the previous question and
to support H.R. 804.
Mr. COLE. Mr. Speaker, I yield myself such time as I may consume.
Actually, I listened with a great deal of interest to the debate from
my friends on the other side. None of it had very much to do with the
rule or with the underlying legislation that we are going to discuss
shortly, so I don't pretend to be an expert on the issues.
I do point out, simply in passing, that it really is up to the
President of the United States as to whose advice he or she wants to
take. Frankly, you know, to say that there aren't ``political people on
the National Security Agency,'' with all due respect to a Chief of
Staff that I admire profoundly, I think Leon Panetta is one of the
great Chiefs of Staff to ever serve any President, but I would tell you
that he is a pretty political guy. He was in this body, and one of his
jobs was to help make sure the President of the United States was
reelected. So there was a political dimension to what he did.
I don't know Mr. Bannon. I have never met him. I don't pretend to be
familiar with him or his thinking. I do know that he is a valued
adviser to the President of the United States. And if the President of
the United States is going to seek advice from somebody--and it may be
in these areas of national security--frankly, personally, I would
prefer them to be part of the National Security Council, simply to have
the educated debate of some of the very best professionals that we have
and so that their opinion, when they advise the President, is fully
formed. Again, I see this as the President's decision, not some
enormous departure.
On occasions, Mr. Axelrod, who was not a chief of staff who was
primarily a political counsel, did sit in on national security meetings
at the request of the President. So, again, we can have this argument.
I am not sure it is particularly relevant to the legislation. But at
the end of the day, I want anybody advising the President of the United
States--and he gets to make that choice--to get the best information
they can possibly receive so that that advice is well-informed.
Mr. Speaker, I yield 3 minutes to the gentleman from Georgia (Mr.
Carter), who is here to offer some important thoughts about some of the
issues that are involved in the underlying legislation.
Mr. CARTER of Georgia. Mr. Speaker, I rise today in support of the
rule providing for consideration of H.J. Res. 42, which disapproves of
the rule submitted by the Department of Labor on drug testing of
unemployment insurance applicants.
In 2012, the Middle Class Tax Relief and Job Creation Act was passed
into law. This bipartisan reform allowed, but did not require, States
to administer drug tests to those applying for unemployment insurance
benefits.
Unemployment insurance applicants are required by law to be able and
available for employment, and drug testing is one of the most effective
ways to ensure applicants meet this requirement. This law was
also intended to reassure employers and taxpayers who fund the
unemployment insurance program that those claiming benefits were truly
ready to be hired and work.
In the years following the passage of this law, the Department of
Labor failed to issue a rule to implement it. But in the final months
of the Obama administration, the Department of Labor issued a final
rule that severely limited States' ability to drug test unemployment
insurance applicants. In issuing this rule, the Department of Labor
acted outside their authority and went against the clear intent of
Congress.
H.J. Res. 42 would provide for disapproval of this rule through the
Congressional Review Act. This is needed to remove this overreaching
rule and allow for the original intent of the law to be fully
implemented.
States are in the best position to determine how to efficiently and
effectively administer unemployment insurance programs, and should be
allowed to drug test applicants if they choose to do so.
Reform of the unemployment insurance program is of particular
interest to me. Last Congress, I introduced the Ensuring Quality in the
Unemployment Insurance Program Act, which would allow States to choose
how to implement drug testing on unemployment insurance applicants.
I thank Chairman Brady and Chairman Cole for their attention to this
very important issue, and I look forward to working with them to enact
meaningful reforms to the unemployment insurance program.
I urge my colleagues to support the rule and this resolution.
{time} 1345
Mr. HASTINGS. Mr. Speaker, I am very pleased to yield 2 minutes to
the distinguished gentlewoman from Connecticut (Ms. DeLauro), my good
friend, who is the ranking member of the Appropriations Subcommittee on
Labor, Health and Human Services, Education, and Related Agencies.
Ms. DeLAURO. Mr. Speaker, I rise in strong opposition to this rule.
Drug testing people who are simply applying for unemployment insurance
is harassment.
I am outraged on behalf of the workers across this country, workers
in my congressional district, who could be subjected to insulting and
unnecessary testing when they have earned the right to apply for
unemployment insurance.
This is a strategy to throw up barriers to collecting unemployment
insurance. It is an intimidation tactic with no basis in reality.
States should not be allowed to impose additional obstacles to cut back
on applications.
These jobless workers are often unemployed through no fault of their
own. Their jobs were taken away by corporations who have moved their
jobs overseas in order to get a tax break. And in addition to that, we
have a Tax Code today that supports them moving overseas.
Or they may have lost their job because of a flawed trade agreement
which, as we have seen in the past, has lost jobs and depressed wages.
We ought to be dealing with a tax code that penalizes companies that
move their jobs overseas, not people who just want to do an honest
day's work or collect the unemployment insurance that they are entitled
to.
People want to work in this country, and it is often tiresome to
listen to the ways that some of my colleagues on the other side of the
aisle demean working people, people who struggle every day. We are all
identified by the jobs that we have. We take pride in the work that we
do.
People don't want to be on unemployment. What they want to do is to
say to their kids: Be proud of me. This is my job. This is what I do. I
want to be your role model.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. HASTINGS. I yield the gentlewoman an additional 1 minute.
Ms. DeLAURO. What we ought to do, again, let's penalize those
companies that send their jobs overseas. Let's do something about those
flawed trade agreements which have lost over 800,000 jobs or more. That
is just from the NAFTA agreement. Let's do something else for working
people in this country.
Or you know what? Perhaps we ought to be drug testing the CEOs of
companies who move their mailboxes overseas, export jobs, and who are
in the business of hurting American workers. And, by the way, they are
getting massive tax breaks at taxpayers' expense.
I strongly oppose this rule and this resolution. American workers
deserve better.
Mr. COLE. Mr. Speaker, I yield myself such time as I may consume.
I just want to point out for the record, Mr. Speaker, that actually
this rule that we are trying to repeal, the measure we are trying to
instate, doesn't force drug testing on anybody; and that is not going
to happen in any State, unless the people in the State decide that that
is something they want to do. I am quite content to let people in any
State make that decision.
I think in my State, I am pretty certain that the people who I am
privileged to represent would be very upset if they thought somebody
was receiving unemployment compensation while they were on drugs,
because they think
[[Page H1149]]
that is going to make it pretty hard for that person to ever get back
into the workforce, and they want to be able to identify that. They
don't want to incentivize it.
Other people may have a different opinion, and that is legitimate. It
is a big country. That is why our Founding Fathers adopted a Federal
system, so I wouldn't begrudge another State that saw it differently.
What we are trying to avoid here is a one-size-fits-all or this body
and any administration dictating to every State what they ought to do.
Frankly, I would suggest that my good friend's remarks suggest that
is the concern, that they actually want to decide in Oklahoma what we
would do. We are not trying to decide in Connecticut what our friends
would do. We are just thinking this ought to be down to the States.
That was the intent of Congress. When this was written, it was to
empower the States to allow them to pursue policies they thought were
appropriate. Frankly, if they do that and they pursue different
policies, which they may well, we may actually learn something out of
this. Again, that is part of the genius of our system, having 50
different laboratories out there.
But let's not have a bureaucracy decide that it will circumvent the
will of the Congress of the United States and write a rule that is
clearly meant to undo the intent of a legislation that was passed
across this floor with bipartisan support.
Again, we just disagree on the issue, but, for the record, we are not
trying to impose our beliefs. We are trying to let every State do what
that State thinks they ought to do.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS. Mr. Speaker, through you, I ask of my good friend from
Oklahoma whether or not he has additional speakers. I do not, and I am
prepared to close.
Mr. COLE. Mr. Speaker, I am certainly prepared to close if my friend
is.
Mr. HASTINGS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we are here debating one rule for two entirely unrelated
and unnecessary bills. To make matters worse, in the process of doing
so, my Republican colleagues have shut out my fellow Democrats and some
of their Republicans, even after presenting two germane amendments,
even having the opportunity to have those amendments debated on the
floor of the House of Representatives, the people's House.
What are you afraid of? By not making in order germane amendments
with no budgetary effect, even after the chairman of the pertinent
committee asked that a structured rule be provided that would have
allowed for those two germane amendments to be offered, the majority is
silencing the duly-elected representatives of millions of Americans.
We have more important things to address here in the people's House.
Continuing to undermine the dedicated work of our Federal agencies,
continuing to govern not based on the reality of the situation but on
how you feel things are, and then shutting out the voices of millions
of Americans through their representatives from the legislative process
is shameful and no way to govern. The American people deserve better.
Mr. Speaker, I yield back the balance of my time.
Mr. COLE. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, I just want to point out again that, while my friend is
correct, we have two different pieces of legislation under a single
rule, and those legislations, as my friend points out, are not
particularly related. As a matter of fact, they are not related to one
another in any way. Each piece of legislation will receive a separate
debate and a separate vote on the House floor. There was simply no
reason to have two rules when one would suffice for two bills that
basically need to come into the same format, in our view.
I also point out that, when we are talking about the vote under the
Congressional Review Act, we are actually following a form prescribed
in statute, and we are moving at a pace that the law dictates and that,
frankly, is necessary in order to retain the privileged status of the
legislation in the United States Senate. So nothing unusual here, other
than we are actually being pretty productive and undoing a lot of rules
that, frankly, we think were misguided and rushed into the final days
of the last administration.
My friends are free to disagree with that, but I think the issues are
pretty clear, pretty easy to decide, and don't require a great deal of
amendments.
On the Oklahoma-Texas issue, and that is something I know a little
bit about since it affects my district, last year, when we considered
this legislation, we actually did have an amendment. It was my
amendment, and my amendment that probably made it unacceptable in the
Senate. But I was indulged by my chairman of the Rules Committee, and
for the very important reason that we actually make sure that the
tribes have an opportunity to be at the table. In this case, they do.
Mr. Thornberry has worked very hard, and so there is no dispute
between the delegations in Oklahoma, the delegations in Texas, the
interests of the various Indian tribes. Everybody agrees that we need a
common set of information, a common survey that we can all trust to,
frankly, work out the differences here that have multiplied over a
century as the border has literally shifted. So that is the appropriate
thing to do. We don't need a lot of amendments on that.
Mr. Speaker, in closing, I want to encourage all Members to support
the rule. H.R. 428 is a fair and equitable solution which all
interested parties have agreed upon and which can provide certainty
that many landowners have sought along the Oklahoma-Texas border.
In addition, H.J. Res. 42 undoes a regulation that should have never
been made in the first place. By preventing implementation of this
regulation, we can ensure that those actively looking for work are
provided with the support necessary to reach that goal.
Mr. Speaker, in closing, I want to take a point of personal
privilege. This is the last time my good friend and my staff member,
Mr. Waskiewicz, will be on the floor with me. He has been with me for
6\1/2\ years. He has made a smart career move and is moving on to the
Budget Committee, a more august position.
But I have had the good fortune, as I know my friends have and we all
have, to have very many wonderful staff members over the years. I have
never had a better staff member than Steve Waskiewicz, never had a
better friend, never had a harder worker, never had anybody who was
more selfless in putting the interests of our office and the
constituents whom we are privileged to represent ahead of all else. So
I want to commend and thank him publicly and on the record for his
wonderful service.
Ms. JACKSON LEE. Mr. Speaker, I rise in strong opposition to the rule
and the underlying bill.
I strongly oppose this rule because it makes in order H.J. Res. 42, a
bill disapproving the rule submitted by the Department of Labor
relating to drug testing of unemployment compensation applicants, an
effort to impose drug testing as a condition of receiving unemployment
insurance and other forms of public assistance.
I oppose this rule because it would repeal a Department of Labor rule
intended to implement a bipartisan agreement on implementing a
provision, in the Middle Class Tax Relief and Job Creation Act of 2012,
that allows states to drug test unemployment insurance (UI) applicants
in certain circumstances.
In 2012, Congress approved a bipartisan compromise on drug testing
unemployment insurance claimants.
The agreement permitted states to drug test UI claimants in cases
where:
1) an applicant has been discharged from their last job because of
unlawful drug use; or
2) an applicant who ``is an individual for whom suitable work (as
defined under the State law) is only available in an occupation that
regularly conducts drug testing (as determined under regulations issued
by the Secretary of Labor).''
Congress therefore mandated the Department of Labor to define through
regulation those occupations that regularly conduct drug testing.
The final Department of Labor (DOL) rule, which would be repealed by
H.J. Res. 42, defined ``occupation'' as a position or class of
positions that are required, or may be required in the future, by state
or federal law to be drug tested.
Some members of Congress have criticized the regulations as being too
narrowly drawn, but in fact, they track the bipartisan legislation very
closely.
It seems that what is really at issue is a desire to conduct broader
drug testing of UI applicants.
[[Page H1150]]
Any proposal that seeks to expand the ability of states to drug test
people for unemployment insurance should be vigorously opposed.
States already have the ability to administer drug testing and this
change would needlessly shift employer costs to the states.
State UI programs already penalize job-related drug use.
Virtually all states treat a drug-related discharge as disqualifying
misconduct even if it is not explicitly referenced in their discharge
statutes.
Twenty states also explicitly deny benefits for any job loss
connected to drug use or a failed drug test.
In addition, six states (Arizona, Arkansas, Indiana, South Carolina,
Tennessee, and Wisconsin) have passed legislation equating a failed or
refused pre-employment drug screen with refusing suitable work.
Employers already have testing as a tool to screen out people who use
illicit drugs, at no cost to states.
Proponents of drug testing argue that states want to be able to drug
test UI applicants.
However, only three states (Texas, Mississippi and Wisconsin) have
enacted laws permitting state drug testing of UI claimants, consistent
with the federal regulation, with all three of these states delaying
implementation until after the final DOL rule targeted by H.J. Res. 42
was issued.
Suspicionless drug testing of government benefit recipients likely
violates the Fourth Amendment.
Generally, government-mandated drug testing not based on
individualized suspicion is unconstitutional.
Drug tests historically have been considered searches for the
purposes of the Fourth Amendment.
For searches to be reasonable, they generally must be based on
individualized suspicion unless the government can show a special need
warranting a deviation from the norm.
However, social insurance or governmental benefit programs like UI,
Temporary Assistance for Needy Families (TANF), Supplemental Nutrition
Assistance Program (SNAP) and Housing Assistance do not naturally evoke
the special needs that the Supreme Court has recognized in the past.
Indeed, when states like Michigan and Florida have tried to impose
mandatory suspicionless drug testing on all TANF applicants or
recipients, they have been stopped by federal courts that have found
such testing to be unconstitutional under the Fourth Amendment.
These court battles also imposed substantial legal costs for states.
State-administered drug testing is a poor investment of public funds.
Claims that testing will save taxpayer money are built upon the
assumption that the tests will return a high number of positive
results.
However, studies show that individuals who receive public benefits
use drugs at rates similar to the general population, and the vast
majority of such individuals do not use drugs.
Most individuals, in fact, refrain from using drugs on a regular
basis.
Ten states have spent substantial amounts of money in recent years to
set up and administer drug testing systems for TANF recipients, but
have identified only a few claimants testing positive.
Drug testing is also costly and prone to returning false-positives.
Drug tests that do come back as positive easily identify marijuana
use but often miss other drugs that ordinarily clear out of the body
within a few days.
Tests do not indicate if a person is impaired, or whether they are
using less than they have in the past.
Working people paid for this insurance policy, and jobless workers
earned the right to access UI through their service to their employer.
Proposals to drug test UI beneficiaries needlessly stigmatize and
punish jobless workers and their families who are trying to get back on
their feet.
If legislators have genuine concerns about drug use, there are far
better ways to respond than targeting and stigmatizing the unemployed.
I urge you to oppose H. Res. 99, the Rule governing debate for H.J.
Res. 42 and any legislation that seeks to expand the ability of states
to condition the receipt of unemployment insurance and other forms of
public assistance on a drug test.
For these reasons and more, I oppose this rule and the underlying
bill. I would also like to include the following list of organizations
actively opposed to H.J. Res. 42:
9to5, National Association of Working Women; AFL-CIO; AME
Church--Social Action Commission; American Civil Liberties
Union; American Federation of State, County and Municipal
Employees (AFSCME); Bend the Arc Jewish Action; Bill of
Rights Defense Committee/Defending Dissent Foundation; Center
for Community Change Action; The Center for HIV Law and
Policy; Center for Law and Social Policy (CLASP); Drug Policy
Alliance Economic Policy Institute Policy Center; Food
Research & Action Center; Harm Reduction Coalition; Housing
Works; Institute for Science and Human Values; Interfaith
Worker Justice; LatinoJustice; The Leadership Conference on
Civil and Human Rights; Legal Action Center; Legal Aid at
Work.
Life for Pot; The Los Angeles LGBT Center; Massachusetts
Law Reform Institute MomsRising; NAACP; National Asian
Pacific American Women's Forum; National Association of
Social Workers; National Center for Transgender Equality;
National Council of Churches; National Employment Law
Project; National Employment Lawyers Association National
LGBTQ Task Force Action Fund; National Women's Law Center;
NCADD-MD; Public Justice Center; Sargent Shriver National
Center on Poverty Law; StopTheDrugWar.org; Students for
Sensible Drug Policy (SSDP); The Sugar Law Center for
Economic & Social Justice; Union for Reform Judaism; The
United Methodist Church--General Board of Church and Society;
Witness to Mass Incarceration; Workplace Fairness.
The material previously referred to by Mr. Hastings is as follows:
An Amendment to H. Res. 99 Offered by Mr. Hastings
At the end of the resolution, add the following new
sections:
Sec. 3. Immediately upon adoption of this resolution the
Speaker shall, pursuant to clause 2(b) of rule XVIII, declare
the House resolved into the Committee of the Whole House on
the state of the Union for consideration of the bill (H.R.
804) to amend the National Security Act of 1947 to protect
the National Security Council from political interference,
and for other purposes. All points of order against
consideration of the bill are waived. General debate shall be
confined to the bill and shall not exceed one hour equally
divided among and controlled by the respective chairs and
ranking minority members of the Committees on Armed Services,
Foreign Affairs, and the Permanent Select Committee on
Intelligence. After general debate the bill shall be
considered for amendment under the five-minute rule. All
points of order against provisions in the bill are waived. At
the conclusion of consideration of the bill for amendment the
Committee shall rise and report the bill to the House with
such amendments as may have been adopted. The previous
question shall be considered as ordered on the bill and
amendments thereto to final passage without intervening
motion except one motion to recommit with or without
instructions. If the Committee of the Whole rises and reports
that it has come to no resolution on the bill, then on the
next legislative day the House shall, immediately after the
third daily order of business under clause 1 of rule XIV,
resolve into the Committee of the Whole for further
consideration of the bill.
Sec. 4. Clause 1(c) of rule XIX shall not apply to the
consideration of H.R. 804.
____
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Republican majority agenda and a vote to allow
the Democratic minority to offer an alternative plan. It is a
vote about what the House should be debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives (VI, 308-311), describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
The Republican majority may say ``the vote on the previous
question is simply a vote on whether to proceed to an
immediate vote on adopting the resolution . . . [and] has no
substantive legislative or policy implications whatsoever.''
But that is not what they have always said. Listen to the
Republican Leadership Manual on the Legislative Process in
the United States House of Representatives, (6th edition,
page 135). Here's how the Republicans describe the previous
question vote in their own manual: ``Although it is generally
not possible to amend the rule because the majority Member
controlling the time will not yield for the purpose of
offering an amendment, the same result may be achieved by
voting down the previous question on the rule. . . . When the
motion for the previous question is defeated, control of the
time passes to the Member who led the opposition to ordering
the previous question. That Member, because he
[[Page H1151]]
then controls the time, may offer an amendment to the rule,
or yield for the purpose of amendment.''
In Deschler's Procedure in the U.S. House of
Representatives, the subchapter titled ``Amending Special
Rules'' states: ``a refusal to order the previous question on
such a rule [a special rule reported from the Committee on
Rules] opens the resolution to amendment and further
debate.'' (Chapter 21, section 21.2) Section 21.3 continues:
``Upon rejection of the motion for the previous question on a
resolution reported from the Committee on Rules, control
shifts to the Member leading the opposition to the previous
question, who may offer a proper amendment or motion and who
controls the time for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Republican
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. COLE. Mr. Speaker, I yield back the balance of my time, and I
move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. HASTINGS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________