[Congressional Record (Bound Edition), Volume 163 (2017), Part 2]
[House]
[Pages 2532-2538]
[From the U.S. 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

[[Page 2533]]

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.
  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.

[[Page 2534]]

  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.
  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

[[Page 2535]]

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 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

[[Page 2536]]

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 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,

[[Page 2537]]

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.
  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

[[Page 2538]]

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 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.

                          ____________________